INTRODUCTION
“A prisoner does not shed his basic constitutional rights at the prison gate”[1]-Justice Marshall
Imprisonment involving the denial of liberty of the individual signifies the societal disapproval of the violation of law by him. As such it cannot be denied that it has some punitive content and the system expects the prisoner to suffer from disabilities including his freedom of movement.[2] Therefore one cannot expect the state of life in prison to be as same as in the free world. Restrictions on freedom are inevitable. Despite this position the system cannot ignore the fact that a prisoner is also a human being. Basic necessities of a human being should not be denied to him. But the present states of affairs in prison are not conducive to strike this balance. The pathetic conditions of prisoners are not confined to India alone. This can be seen everywhere throughout the world.[3] Therefore the “prison is a place where the criminal justice system puts its whole role.” The doctrine behind the punishment for a crime has been changed due to the evolution of new human rights jurisprudence.[4] The concept of reformation has become the watchband for prisoners. Human rights suggest that no crime should be punished in a cruel, degrading or in an inhuman manner.[5] On the other hand it is held that any punishment that amounts to cruel, degrading or inhuman should be treated as an offence by itself. Universally it is the accepted norm and principle in the criminal administration to follow the reformative policies.[6] It is also essential part of justice that all under trial prisoner shall be treated with respect and with the inherent dignity and value as humans.[7] It is always strongly argued that the community can never tolerate a scheme of correction that does not maintain a connection between the evilness of the crime done.[8]
Does a person on becoming a prisoner lose all his rights of human existence? Whether that person is excluded from the category of “human beings”? The father of the nation i.e. Mahatma Gandhiji said that “Every person is a mixture of good and evil[9], is there not plenty of evil in us? There is enough of it. The fundamental rights guaranteed under the constitution are not absolute but contain many restrictions on their enjoyment. Right to freedom of person is one of the most important rights that have been calculated foremost into the category of fundamental rights.[10] When a person is convicted or punished for any offence or put in prison his status is considered different from an ordinary human being because a prisoner is devoid of all fundamental rights that can be claimed by him. How a prisoner is treated inside the prison? Nobody cares because a prisoner is no more a part of that society of human beings if he or she commits offence. The reality is that a prisoner is treated and served with the food of cruelty and barbarous making the prisoner aware that now he won’t be counted as a human being and he would further be known not be by his name but he would be called as criminal by that society which considered him earlier as a human being. This is the story of the entire prisoners who are put behind the bars of inhumanity. We always talk about dignity of an individual. Whether a person behind the bar has nothing to do with the word of dignity? Whether a prisoner loses to have self respect and self worth after being convicted of offence? Why prisoners are made to suffer, just because they are criminals and only way is to treat them like animals. Why we are not following the reformative theory? Providing death punishment for all offence will decrease the crime rate. There is a universal tagline that “Human beings are not born criminals but they are made”. If human beings are not born criminal then what is the reason behind every crime? How a human being is turned into criminal? Is there any factory that made a human being to do a criminal act? Yes there is a factory and the name of that factory is “social environment and social context” that forces a person to do that act. Brutalities committed on prisoners are rampant everywhere. There is a tendency to degrade and insult prisoners. These people have to live under great disabilities imposed by the society. Under the mantle of discipline there is the senseless infliction of solitary confinement or confiscation of anything that could give semblance of recreation. The courts have been doing their best to strike a balance between the conflicting interests. It is proposed to examine how much the courts have been successful in identifying and effectuating these rights.
HUMAN RIGHTS OF PRISONERS – INTERNATIONAL PERSPECTIVE
“Every prisoner’s liberty is circumscribed by the very fact of his confinement in the prison cell, but his interest in the limited liberty left to him only to more substantial”-Justice Mr. Dougals
Human rights are those irreducible minima which belong to every member of the human race when pitted against the state or other public authorities groups and other oppressive community. Being a member of human family, every human being has a right to be treated as human once he takes birth or is alive in the womb with a potential title to personhood.[11] After the United Nation formation, the United Nation constituted several conventions relating to human rights of prisoners along with Universal Declaration of Human Rights. There are various international legally binding conventions on Human Rights in different fields. These conventions can be divided into two broad categories – Convention relating to inhuman, cruel and degrading acts is one of the main aspects of the above mentioned category.[12] The Universal Declaration of Human Rights was prepared by the Commission of Human Rights in 1947 and 1948 and was adopted by the General assembly on December 10.1948. When the Universal Declaration of Human Rights was adopted, it was a most eloquent expression of hope by a world emerging from the most devastating wars in the history of human race. This declaration represents a great step forward taken by the international community in 1948. It’s persuasive and moral character and political authority derives from the fact that it is agreed t o be the statement of generally accepted international principles. This outlines of human rights objectives is drafted in broad and general terms and its principles have inspired more than 140 human rights, which are taken together to constitute international human rights standard. The Universal Declaration of Human rights deals with right to life, liberty and security of the person[13]; the prohibition of torture and cruel[14]; inhuman and degrading treatment or punishment; the prohibition of arbitrary arrest[15]; right to fair trial[16]; the right to be presumed innocent until proved guilty[17]; prohibition of retroactive penal measures. While these articles are most directly relevant to the administration of justice, the entire text of the Universal Declaration offers guidance for the work of prison official.[18] The recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, the disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in the human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law and it is essential to promote the development of friendly relations between nations, the countries of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge.[19] The Universal Declaration operated merely as a statement of ideals, which was not of the nature of a legally binding Covenant and had no machinery for its enforcement. That deficiency was sought to be removed by the United Nation Assembly by adopting in December, 1966 the Covenant for the observance of Human Rights. The Covenant on Civil and Political Rights,[20] which deals with the rights such as, right to life[21], prohibition of torture[22], the prohibition of arbitrary arrest and detention[23], the rights of all persons deprived of their liberty, prohibition of imprisonment for failure to fulfil a contractual obligations[24], the right to fair trial[25] and prohibition of retroactive penal measures.[26] The second covenant that is the International Covenant on Economic, Social and Cultural Rights deals with the right of everyone to an adequate standard of living is particularly important to the rights of prisoners[27], the right to adequate food, clothing, shelter and the continuous improvement of living conditions the fundamental right of everyone to be free from hunger and also the rights to work; to reasonable conditions of employment; to organize trade unions; to social security and social insurance; to protection of families and children; to health; to education; and to take part in cultural life.
PRISONER RIGHTS: INDIAN CONSTITUTIONAL PERSPECTIVE
“Conviction for 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”.[28]
The fundamental rights guaranteed under the Indian Constitution are not absolute and many restrictions have imposed on their enjoyment. Right to freedom of person is one of the most important rights among the fundamental rights.[29] When a person is convicted or put in the prison his status is different from that of an ordinary person. A prisoner cannot claim all fundamental rights that are available to the ordinary person. However, certain rights which have been enumerated under Part III of the Indian Constitution are available to the prisoners also because a “Prisoner remains a ‘Person’ inside the prison”.[30] The right to personal liberty has been given wider interpretation by the Supreme Court and this right is available not only to the free people but even to those behind the bars. The prisoners are entitled to claim the residuary fundamental rights even when they are imprisoned in the jail. Thus a prisoner is entitled to have rights such as
- Right to live with human dignity
- Right to have fair trial
- Right to have Speedy trial
- Right to Bail
- Right to have Parole
- Right to have medical and health facilities
- Right to free legal aid
- Right to consult lawyers
- Rights of inmates of protective homes
- Right against cruel and unusual punishment
- Right to have reasonable wages in prison
- Right against bar fetters, handcuffing and protection from torture.
Prisoner rights
“Prisons are built with stones of law”- when Human rights are harassed behind the bars constitutional justice come forward to uphold the law-William Black
A prisoner does not lose all rights when being imprisoned. They lose only the part of rights which are necessary consequences of the confinement and the rest of the rights are preserved.[31] A prisoner is a person who is deprived of liberty while being in a confinement. The rights of prisoner are governed by national and international law. International convention include International covenant on Civil and Political Rights 1966. It provides that “Every prisoner who is detained, including every sentenced prisoner has right to live with human dignity including least exercise and provision, at State as well as national expenses of adequate accommodation, nutrition, reading materials and medical treatment. The binding principle at International level is that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of human person”.[32] In general, the prisoners will not be tortured nor subject to cruelty, inhuman and degrading treatment and punishment.[33] According to Article 10 the United Nations committee on International Covenant on Civil and Political Rights, the state party must have positive obligations towards all people who are deprived of their liberty to be treated with humanity and with dignity while dealing with the prisoners.[34]
It is a well established fact that conviction or death punishment to prisoner for a crime does not reduce a person into non-person, so he is entitled to basic rights which are available to him inside the prison. Different court through different interpretations had widened the scope of prisoner’s rights and held that prisoner is a human being as well as natural person. Being a prisoner he or she does not ceases to be a human being and natural person.
Human Rights Vs Prisoner rights
“We all are prisoners but some of us are in cells with windows and some without”- Kahlil Gibran
There is big line that is always drawn between the human rights and prisoner’s rights. Majority of people believed that one who is convicted and is undergoing punishment does not deserve to have any kinds of right of his or her human existence. But what rights actually means? If anybody who is having knowledge of rights will never raise question on prisoner’s rights. Rights are legal, ethical, political, social and economical natural rights by society enforced by state without which human beings cannot survive. Every human being is entitled to have the basic rights without any discrimination of his or her status. Why we are not been able to provide just the basic rights to that humanity behind the bars? Albert Einstein while addressing at Chicago has said that the existence and validity of human rights are not written in the stars but these are ideals which the human being has evolved through struggle and conviction which resulted from historical experience.[35] Human rights are the natural rights which are provided to all human beings without any discrimination.
*Prisoner Rights Vs Fundamental rights- The apex court of India held that conviction for crime and imprisonment does not put farewell to the fundamental rights mentioned in Part III of Indian constitution to the humanity behind the bars. Constitutional Karuna is thus injected to incarceratory strategy to produce and reform prison justice.[36] The Supreme Court held that the conditions of detention cannot be extended in such a way that it deprives the fundamental rights of the prisoner.[37] Prisoner retains all the basic rights which are enjoyed by the citizens of India except those which is lost at the time of confinement. Moreover the rights enjoyed by the prisoner under Article 14, 19 and 21, though are limited but it does not mean they are static and will rise to human heights when challenging situation arises.[38]
Conclusion
“Society must strongly condemn crime through punishment, but brutal deterrence is fiendish folly and is a kind of crime by punishment. It frightens, never refines; it wounds never heals“-Krishna Iyer[39]
It is the constitutional obligation of the “State” to devise a procedure as well as the mechanism which would ensure the residuary Fundamental Rights of the prisoner. It is also the obligation of the Supreme Court to act as the guardian of the fundamental rights of the people behind the bars by issuing necessary directions to the state. The powers of Supreme Court are of widest amplitude. Some positive steps have already been taken by the Supreme Court to alleviate the miseries of the prisoners. The present scenario is that even after conviction of person, the role of judiciary does not come to an end. But even after this, Judiciary has to play effective and supervising role with regard to the treatment of prisoner inside the prison. When a person is put inside the prison he loses some fundamental rights such right to freedom of movement, freedom of association etc. The prisoners are entitled to claim the residuary fundamental rights even inside the prisons. The state is under a constitutional obligation to honour and protect their rights including the right to life and human dignity. Therefore there is need of active participation of the society which is essential for the true welfare of the prisoners behind the bars. The stereotype thought prevalent in the Indian society considers them as convicts or men with doubtful character and cast social stigma affecting them personally and their family members. Therefore the encrusted view of a convict as deserving of punishment apart from the deprivation of his liberty must be negated and a new impetus must be given
[1] The view was observed by Justice P.N Bhagwati in Francis Corahe Mullin v. The Administrator, UT Delhi, AIR 1981 SC 746
[2] James Inciardi, Criminal Justice (1987), p.592.
[3] V.R.Krishna Iyer, A National Prison Policy “Constitutional Perspective and Pragmatic Parameters” Sir Alladi Krishna Swami Iyer Endowment Lecture (1981), p.26.
[4] Bareness and Teeters, New horizons in Criminology 3rd edition, pp544-545
[5] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 p.1-2
[6] International Covenant on Civil and Political Rights, 1966, Art.10 (3) mandates that the essential feature of correctional system should be reformation and rehabilitation of prisoners.
[7] Principle 1 of Basic Principles for the Treatment of Prisoners1990.
[8] Frank Pakenham, Lord Longford, the Idea of Punishment (1961), Geoffrey Chapman, London, p. 55.
[9] Gandhi M.K. Harijan, 10-6- 1939. pp158 – 159
[10] The right to freedom of the person comprises the following:—
Article 20(1) protection against ex-post facto laws:
Article 20(2) protection against double jeopardy;
Article 20(3) privilege against self incrimination;
Article 21 Protection of personal life and liberty;
Article 22(1 to 3) Protection in case of arrest;
Article 22(4 to 7) Safeguards in case of preventive detention;
The fundamental rights under Article 19 are conferred only on citizens, but the discussed above are available to all persons, whether citizens or not.
[11] Lan Brownlie, Principles of Public International Law, 2nd Edition, 1973, p. 552
[12] Human rights and prisons, united nations New York and Geneva, 1996
[13] Article 3 of Universal Declaration of Human Rights 1948
[14] Article 5 of Universal Declaration of Human Rights 1948
[15] Article 9 of Universal Declaration of Human Rights 1948
[16] Article 10 of Universal Declaration of Human Rights 1948
[17] Article 11 of Universal Declaration of Human Rights 1948
[18] Human rights and prisons, united nations New York and Geneva, 2005
[19] Dr. S.K.Kapoor, Human Rights Under International Law and Indian Law, Central Law Agency. 3rd Edition, 2005
[20] The International Covenant on Civil and Political Rights, 1966,
[21] Article 6 of International Covenant on Civil and Political Rights, 1966
[22] Article 7 International Covenant on Civil and Political Rights, 1966
[23] Article 10 International Covenant on Civil and Political Rights, 1966
[24] Article 11 International Covenant on Civil and Political Rights, 1966
[25] Article 14 International Covenant on Civil and Political Rights, 1966
[26] Article 15 International Covenant on Civil and Political Rights, 1966
[27] The UN Standard Minimum Rules for the Treatment of Prisoners, 1955
[28] Charles Wolff v. McDonnell, (1974) 41 Law Ed 2nd 935, DBM Patnaik v State o f Andhra Pradesh, AIR 1974 SC 2092, Sunil Batra v. Delhi Administration, AIR 1978 SC 1675, and Sunil Batra v. Delhi Administration, AIR 1980 Cr.LJ 1099
[29] The right to freedom of the person comprises the
following:—
Article 20(1) protection against ex-post facto laws:
Article 20(2) protection against double jeopardy
Article 20(3) privilege against self incrimination,
Article 21 protection of life and personal liberty
Article- 22(1 to 3) protection in case of arrest and Article 22(4to 7) safeguards in case of preventive detention
The fundamental rights under Article 19 are conferred only on citizens, but the discussed above are available to all persons, whether citizens or not.
[30] Sunil Batra v. Delhi Administration, AIR 1980 SC1579
[31] A.K.Roy Vs Union of India and another, AIR 1982 SC 710
[32] International Covenant on Civil and Political Rights, 1966, Article 10(1). This is also reiterated by Principle 1 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1979, and Article 2 of the Code of Conduct for Law Enforcement Officials, 1979.
[33] Article 7 of the International Covenant on Civil and Political Rights
[34] General Comments No. 21, UN Human Rights Committee on Civil and Political Rights, 1992, Para 4.
[35] Albert Einstein. Ideas and Opinions, New York: Random House (1954).
[36] Charles Sobaraj v. Supdt Central Jail Tihar, AIR 1978 SC 1514
[37] State o f Maharashtra v Prabhakar Pandurang Sanzgir, AIR 1966 SC 424
[38] Charles Sobaraj v. Supdt Central Jail Tihar, AIR 1978 SC 1514
[39] V.R. Krishna iyer, “Justice in Prison: Remedial Jurisprudence and Versatile Criminology” in Rani Dhavan Shankardass (edi), Punishment and the Prison: Indian and International Perspectives (2000), Sage Publications, New Delhi, p.58.
