Prisoner’s Rights Vs Fundamental Rights

“In our world, prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from drift wood juveniles to heroic dissentersJustice V. R Krishna Iyer

The constitution of each and every country talks about the word “Human Dignity”. Does this word does not suits on the person who is behind the bars? If it is so why we always talks about the rights of human being and why we are always silent on the topic on rights of prisoner. This is so because we do not treat that person into the category of human beings if he or she commits crime. This is thought of that society towards the person who commits crime. Society always believes in the notion “once a criminal is always a criminal”. But nobody looks the circumstances that it is that social environment and context which had forced him or her to do such offence. Therefore the people of modern society always treat prisoner or convict as “a person who is no more a human being”. Does a person under prison is no more a human being? Does that person won’t be a member of that human race if he commits crime? Does that person behind the bar is debarred to be included within the category of human beings? Does a prisoner or a convict is outside the sphere of the word “dignity”? It is very unfortunate that the civilised society is not been able to provide just the minimal rights to the prisoners. “Man has advanced his mind but never tried to advance his thought process”. A person behind the bar also belongs to the same society where other human beings belong. Thus, “Imprisonment does not deprive prisoner to have certain basic rights”

“A prisoner does not shed his basic constitutional rights at the prison gate”[1]Justice Marshall

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[2], 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.[3] 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.


The “embryo” or the traces of prisoner’s right in India can be find in the most celebrated decision of A.K Gopalan v. State of Madras[4], it was held that when a prisoner is totally deprived of his personal liberty under the procedure that has been established by the law, the fundamental rights including right to freedom of movement are not available[5] but a prisoner cannot be denied to have the basic fundamental rights. Another most important case was the State of Maharashtra v. Prabhakar Padurang[6], in this case it was held that the conditions of detention cannot be extended to the deprivation of fundamental rights consistent with the facts of detention.


By the term “life” means more than mere animal existence. 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 organ of the body through which soul communicates with the outer world”[7] – Field J.

The Honourable Supreme Court of India has adopted the annotation of Article 21 and expanded the concept of life given by Field J that “life means more than mere physical existence”. Right to life is not restricted to mere animal existence. It means more than just physical survival.


In the new and wider interpretations of Article 21 of Indian constitution the Honourable Supreme Court of India held that “Right to live” does not mean the confinement to physical existence but it includes within the ambit the right to live with Human dignity.[8] While expanding and widening the ambit of Article 21, the Supreme Court of India held that the word “life” may include all those things which are the bare necessities of life such as food, shelter, clothing and adequate nutrition.[9] The Supreme Court also extended the concept of life and held that “Life” is not limited to “death” but, when a person is executed with death penalty and doctor gave the death certificate and dead body was not lowered down for half an hour after the certificate of death, is thus violation of Right to life under Article 21 of Indian Constitution.[10] It is thus only because of wider interpretation of Article 21 which has guaranteed every human being outside or behind the bars certain basic rights and not even the State has the authority to violate those rights. A prisoner does not cease to be a human being even when he or she is lodged in a jail, prisoner still continues to enjoy certain basic fundamental rights including right to life.[11] There have been debates over the topic that convicts are not wholly devoid of their fundamental rights. “However a prisoner liberty is in the very nature of things circumscribed by the very fact of his or her confinement. His interest in the limited liberty left to him is the more substantial”.[12]


Right to health and care is an essential ingredient of Article 21 of the Indian constitution. Article 21 casts an obligation over the state to provide health and medical facilities to all human beings. Every doctor has an obligation to preserve the life of others and state cannot interfere to delay and avoid the discharge the services extended by medical profession. Denial of government hospital to provide medical facilities to an injured person is a violation of “right to life” under Article 21 of the Indian constitution. “Preservation of human life whether it is outside or inside the prison is of paramount importance”.[13] The right to health and medical treatment is a basic human right. The Gujarat High Court held that the jail authorities are under the obligation to take care of ailing convicts and it is the duty of the jail authorities to provide them the medical facilities and take them to the hospitals for medical treatment.[14]


Speedy trial is a part of fundamental right inserted under Article 21 of the Indian Constitution. Delay in disposal of cases is denial of justice so every court is expected to adopt and take necessary steps for expeditious trial and quick disposal of cases.[15] The court held that right to speedy trial is available to all accused at all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. The court further said that the accused cannot be denied the speedy trial on the ground that he had failed to demand a speedy trial.[16]

 “Justice Delayed is Justice Denied” ‘if the stream of justice dries there would be discontent, disharmony and chaos in the society as that stream does not fulfil the thirst of person for justice


 A substantial or we can say a major part of prison population in the country consists of under trials and those inmates whose trial is yet to commence. Thus right to free legal aid is an essential mandate of Article 21 of Indian constitution. The Supreme Court held that free legal aid and assistance at state cost is a fundamental right of a person accused of offence which may involve jeopardy to his life and personal liberty.[17] Neither the state government nor any government can deny, providing the concept of free legal aid and assistance to the accused and the state government is under constitutional mandate to provide legal assistance to a poor accused by pleading financial or administrative inability.[18]

Regarding this right of free legal aid, Justice Krishna Iyer said that “This is the state’s duty and not government’s charity”. If a prisoner is unable to exercise his constitutional right to appeal including Special Leave to appeal for want of legal assistance, the court will grant him such rights under Article 142, read with Article 21 and 39 A of the constitution. The power to appoint or assign counsel to the prisoner does not object to the lawyer named by the court. On the other hand implication of free legal aid and assistance is the duty of the state and state must pay the lawyer an amount fixed by the court.[19]


An eye for an eye only ends up making the whole world blind”-Mahatma Gandhiji

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. but still he is entitled to have some basic rights inside the prison. The state is under constitutional obligation to protect the humanity behind the bars.

Bail is the rule and Jail is the exception”- Justice Krishna Iyer

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

  1. Right to live with human dignity
  2. Right to have fair trial
  3. Right to have Speedy trial
  4. Right to Bail
  5. Right to have Parole
  6. Right to have medical and health facilities
  7. Right to free legal aid
  8. Right to consult lawyers
  9. Rights of inmates of protective homes
  10. Right against cruel and unusual punishment
  11. Right to have reasonable wages in prison
  12. Right against bar fetters, handcuffing and protection from torture.

There have been many judgements which have clearly elaborated the rights of prisoners. But what is actually happening in India we all are aware that a thing which is in the document has never made a practical application in India. The people of India are made to realize that there have been many things that have been going for the prisoner but in reality no schemes are made available to them. These schemes may look good only in documents but never tried to have its practical application. Does anybody know how many people are there inside the prison? How many of them are still under trial? How many of them are imprisoned without any offence. Nobody even research for such things because a person who is behind the bar is no more to be called as human being? The leader of the state makes many policies for the people but nobody makes any scheme for the prisoner. When the budget of nation is presented in the house of people every section of society is provided with certain benefits but have anybody said about the word “prisoner and his rights” whether any budget that has been passed in the house of people contain something for the humanity behind the bars. We provide million of budgets to every department but nothing has been done to improve the prison justice. Does anybody sees a politician going to prison just to see what is actually happening in the prison cell. The answer is no because people behind the bars cannot vote.

Society is guilty if anybody suffers unjustly”- Justice Krishna Iyer

[1] The view was observed by Justice P.N Bhagwati in Francis Corahe Mullin v. The Administrator, UT Delhi, AIR 1981 SC 746

[2] Gandhi M.K. Harijan, 10-6- 1939. pp158 – 159

[3] 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.

[4] A.I.R. 1950 S.C. 27.

[5] Id., B.K.Mukerjee J.p.93

[6] A.I.R 1966 SC.424.

[7] Observation by Field J in Munn v.Illinois, 94 US 11.

[8] Maneka Gandhi v. Union o f India, AIR 1978 SC 597, and followed m Francis Coralie v. Delhi Administration, AIR 1981 SC 746

[9] Francis Coralie v Delhi Administration, AIR 1981 SC 746

[10] Pandit Parmanand v Union o f India, (1995) 3 SCC 248

[11] State o f Andhra Pradesh v. Challa Ramkrishna Reddy, AIR 2000 SC 2083

[12] DBM Patnaik v State o f Andhra Pradesh, AIR 1974 SC 2092, and Sunil Batra v. Delhi Administration, AIR 1978 SC 1675

[13] Parmannd Katara v. Union o f India, AIR 1989 SC 2039 : (1989) 4 SCC 286;  Consumer Education and Research Center v. Union o f India, (1995) 3 SCC 42; Kishore Brothers Ltd v. Employee’s State Insurance corporation, (1996) 2 SCC 682

[14] Rasikbhai Ramsing Rana v. State o f Gujarat, (DB) 1997 Cr LR (Guj) 442

[15] Kadra Pahadiya v State of Bihar, AIR 1983 SC 1167

[16] AR Antulay v. RS Nayak, AIR 1984 SC 1630, again some directions were passed by SC in the case of Common Cause Society v. Union o f India, AIR 1996 SC 1619.

[17] Sukdas v. Arunachal Pradesh, AIR 1986 SC 991

[18] Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369 and followed in the case of Khatn (II) v. State of Bihar, AIR 1981 SC 928

[19] MH Hoskot v. State o f Maharashtra, (1978) 3 SCC 544 : AIR 1978 SC 1548

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Pranav Kaushal

Pranav Kumar Kaushal, Content Writter, Law Corner, Student B.A., LLB 7th Semester, School of Law, Bahra University, Shimla, Himachal Pradesh.

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