UNIVERSITY OF ALLAHABAD

FACULTY OF LAW

PROJECT TOPIC-

“RIGHTS OF PRISONERS IN INDIA-WITH SPECIAL

REFERENCE TO HUMAN RIGHTS”

SUBMITTED TO:

PROF. S.H.K.U Akbar

SUBMITTED BY:
ROLL NUMBER-67
SECTION-B
ENROLLMENT NO.: U1601067
SEMESTER-X
PAPER-VI

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 TABLE OF CONTENT

Serial No. Topic Page No.

1 Introduction 3-4
2 Human rights and the Constitution of India 5-9
3 Rights of Prisoners Guaranteed Under Various International Instruments: 10-12
-
• The Universal Declaration of Human Rights (UDHR)
• The International Covenant on Civil and Political Rights (ICCPR)
• 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
• United Nations Basic Principles for the Treatment of Prisoners.
4 Human Rights of Undertrial Prisoners 13-14
5 Human Rights of Female Prisoners 15-17
6 Role of Judiciary in Protecting The Rights Of The Prisoners: 18-20
• Right to legal aid
• Right to speedy trial
• Right against inhuman treatment of prisoners
• Right to be informed and meet family and friends
• Right to engage a lawyer
• Narco analysis and brain mapping
• Right to reasonable wages

7 Committee Reports for Providing Rights to Prisoners- 21-22

• Prison Act, 1894
• Model Prison Manual
• Mulla Committee
• Krishna Iyer committee
8 Conclusion & Suggestions 23-24
9 Bibliography 25

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 INTRODUCTION
The concept of human rights had a long history and the human being enjoyed various rights
forages, but it was entirely different in the old days as we can see today. In the early ages the
people were divided into various sections according to their wealth, caste and race, etc. hence
rights were subjected to enjoy accordingly. Tracing the origin and evolution of human rights
certainly invite a debate1. Therefore, it would be better to take references of the modern
development of human rights. During this period there was a gross violation of rights of
vulnerable groups and slaves, but by the end of the 18thcentury the French and the Americans
revolutions had given a meaning to rights for all without any discrimination. This period of
revolution later speeded of the fragrance of human rights across the world. During the first and
the Second World War a gross violation of human rights was reported in the history which had
never seen in the past. The World is witnessed to those grave man-made human rights
violations on the basis of nationality, place of residence, sex, ethnic origin, religion and colour.
Resultantly, the United Nations Organization (UNO), adopted various Declarations like the
Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political
Rights (ICCPR) and International Covenant on Economic and Cultural Rights (ICESCR)
which have contributed more to spread the civil, political, cultural and economic rights of the
people with its full of spirits and human beings are entitled to these rights equally and
universally without any discrimination. After the adoption of these covenants the concept of
human rights has widened and conferred more civil, political and economic rights to the
people. The declarations also provided non-natural rights of the people like, Right to
Education, Right to Nationality, and Right to Family etc. and established some agencies like,
United Nations Human Rights Council, Human Rights Watch to watch the implementation
among the member states. There is no doubt that each and every person has the right to basic
human rights since his birth and nobody has the rights to curtail or abridge the rights on the
basis of their race, caste, sex and religion etc. In reference to the Constitution of India and
human rights references are available since 1985. The Constitution of India Bill, 1985,
popularly known as Home Rule Bill, the M. Chelmsford report, 1918, talks about certain
fundamental rights. The Commonwealth of India Bill, 1925 and the Moti Lal Nehru Committee
Repost, 1928 also indicate about the efforts for human rights in India, but the real process
started with the adoption of the famous Karachi resolution of 1931.1 On December 13, 1946

1
Khwaja Abdul Muntaqim. Protection of Human Rights: National & International Perspectives, 27. Law
Publishers (India) Pvt. Ltd, Allahabad, 2008.

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the objective’s resolution moved by Pt. Jawaharlal Nehru and the same were unanimously
adopted by the Constituent Assembly on January 22, 1947 2 . The principles laid down in
fundamental documents were duly considered and applied by the framers of the Constitution
while drawing up the Indian Constitution3. The preamble of the Indian Constitution has all the
rights as guarantees and grants freedoms contemplated in the same document. Human Rights
of the prisoners in India can be seen by two perspectives viz. Constitutional status and
development of human rights and prison reforms to implement the constitutional human rights
of prisoners. Keeping in view this paper covers both these aspects in brief

2
Ibid.
4. Id at 29.

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 Human Rights of Prisoners and the Constitution of India

About human rights there is a common rule and well accepted universally that all human
beings have the right to basic human rights without any discrimination. Prisoners are also not
the exception to this principle. Since, the Indian social system is based on non-violence, respect
and legal system is based on the rule of natural justice, including rule of law, therefore,
prisoner’s rights are subject matters of human rights and almost all basic human rights are
conferred upon the individuals by the Constitution. Although there are no specific rights to the
prisoners mentioned in the Constitution, the prisoners remain a person as per constitutional
view, thereby the basic human rights of prisoners are protected by the Constitution itself. It has
also made clear from the Indian judicial system that human beings are born equal in dignity
and rights, so there can be no discrimination on the basis of any ground, though some
restrictions may be imposed in some specific cases. It is the human life that necessitates human
rights. These rights are moral claims which are inalienable and inherent in all individuals by
virtue of their humanity alone, irrespective of caste, colour, creed, and place of birth, sex,
cultural difference or any other consideration. These claims are articulated and formulated in
what is today known as human rights. The definition of word prisoner4 is also not mentioned
about any kind of negative impact or violation of human rights. Being in civilized society
organized by 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 if a person under trial,
his rights cannot be discarded as a whole. UDHR, 1948 also talks about that “No one shall be
subject to torture or cruel, inhuman or degrading treatment of punishment”

The Constitution of India has a vital role to formulate the basic human rights of the people and
the Prisoners have also all basic human rights and these can’t be taken away from them.
Constitution of India has clearly mentioned the fundamental rights and duties to all its citizens.
But neither it specifies any list of the rights of prisoners nor give any curtailment in the list
fundamental rights. The prisoner also remains as a person or a citizen and are eligible for
fundamental rights given by the constitution. The fundamental rights guaranteed under the
Constitution is not absolute in nature the state has power to impose certain restriction on it.

4
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. A prisoner also known as an inmate is anyone who is
deprived of liberty against their will. This can be by confinement, captivity, or by forcible restraint. “Convicts are
not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess.” –
Justice V.R. Krishna Iyer

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When a person who is a convict or incarcerated his status different from that of a common
man, as he has to stay for a defined period in prison and prisons are considered as a closed
institution. Due to this he cannot claim all the fundamental rights that available to a common
man and the prison administration has the power to impose some restrictions to prisoners‟
rights within the limits of prison manuals. But it never means that the prison administration has
powers to curtail prisoner’s basic and fundamental human rights like right to life, medical
assistance and equality etc. The judiciary while considering various cases clearly interpreted
the various Articles and its implied meaning and conferred more rights to the people. Article
14 of the Constitution of India, gives the right to equality and equal protection before the laws.
So, prisoners have their own rights. If any excesses committed on a prisoner, by the police are
considered as a violation of rights and it warrants the attention of the legislature and the
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 interviews with a legal adviser necessary, in a reasonable manner.
The right to free legal aid is also provided under this article 14 and 21. In Maneka Gandhi v.
Union of India 5 the Supreme Court held that the personal liberty of an individual can be
restrained only on the basis of a law and a procedure established by that law. The procedure
established by law should be just fair and reasonable. In this case the Attorney General stated
that the Government was agreed to consider the representation of the petitioner. The Supreme
Court held that since the defect of the order was removed, the right to go abroad of the
petitioner was deprived only in accordance with the procedure established by law (Passport
Act). So the order is not violating of Article 14, 19(1) (a) or 21 of the Constitution. In
Madhukar Bhagwan Jambhale v. State of Maharashtra6 it has decided by the court that Rule
17 (ix) of the Maharashtra Prison (Facilities to Prisoners) Rules, 1962, is discriminatory and
violative of Article 14 of the Constitution and must therefore, be struck down. A prisoner is
entitled to send welfare letters to prisoners in the prisons, whether such prisoners are relatives
or not. Article 15 of the Indian Constitution deals with the Prohibition of discrimination on the
grounds of religion, race, caste, sex or place of birth. This Article says that the State shall not
discriminate any person on the basis of his or her religion, race, sex, and place of birth or any
of them. Under article 15 (3) & (4), the Government can make special provisions for women &
children and for a group of citizens who are economically and socially backward. It is the
rights of a prisoner to live inside the prison without discrimination. The Constitution of India

5
AIR 1978 SC 597.
6
1984 (2) Bom. Cr. Cases 709

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guarantees Right against Discrimination to each person. Here the person also includes
prisoners, so a prisoner has complete rights against discrimination on the ground of religion,
race, caste, sex or place of birth. Article 19 of the Constitution deals with the Rights to
Freedom which includes six freedoms and all these are under reasonable restriction under
various sub-clauses of the same Article. Among these freedoms right to freedom of speech and
expression and freedom to become a member of an association are available to prisoners, but
all other freedoms like right to movement, right to reside and settlement anywhere in India,
right to profession occupation, trade or business cannot available to the prisoners. 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.
Article 20(1) of the Constitution, protect the person from ex post facto laws or retroactive
criminal legislation; Article 20(2), provides that no person shall be put into trouble twice, for
the same offenses, (rights against double jeopardy) and Article 20(3), provides for the
protection against „testimonial compulsion. On the question of human rights in criminal
administration in reference to handcuffs and fetters it can be considered that Articles 20, 21
and 22 of the Constitution are relevant to the administration of criminal justice7.

Right to life under Article 21 is also one of the important rights given by the constitution and
guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading
treatment to any person whether he is a national or a foreigner. Article 21 Protection of life and
personal liberty as “No person shall be deprived of his or personal liberty except according to
procedure established by law”. Here in context to deprivation Prison is treated as any place
which has been declared by the Government, by general or special order, to be a subsidiary jail,
or any reformative, borstal institution or other institution of a like nature8. And Confinement in
a prison refers to confinement in a prison, by whatever form of words, include references to
confinement or detention in a prison under any law providing for prevention detention9.Thus
the above contexted provision have not any type of violation of human rights of prisoners,
further life under Article 21 has extended meaning given to life to the word and those citizens
who are detained in prison either as under-trails or as convicts, all are entitled to the benefit of

7
.K. Sarkar’s. Public Interest Litigations and Public Nuisances (Second Edn.) 761. Orient Publishing Company:
Allahabad, 2009.
8
Section 2 (b), Prisoners (Attendance in Courts) Act, 1955
9
Id, Section 2 (a).

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the guarantees subject to reasonable restriction10. In Maneka Gandhi v. Union of India11the
Supreme Court has widened the concept life under Article 21 and conferred more rights to lead
dignified life e.g., the rights of speedy trail, right to practice religion and right to
communication etc. but all these rights are subjected to restriction as prescribed under prison
manual and Constitution. 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 12 . In Prem
Shankar v. Delhi Administration 13 the Supreme Court held that Handcuffing should be
resorted to only when there is clear and present danger of escape from the police control.
Handcuffing is held to be prima facie in human and therefore unreasonable and thus violative
of Article 21. In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi14 the
Supreme Court held that the Right to Life protected under Article 21 is not confined merely to
the right of physical existence but it also includes within its broad matrix the right to the use of
every faculty or limb through which life is enjoyed as also the right to live with basic human
dignity. In Sunil Batra (II)15, arising out of a letter written by Sunil Batra to one of the judges
of the Supreme Court alleging that a warden in Tihar Jail had caused bleeding injury to a
convict by name Prem Chand by forcing a stick into his anus, the Court liberalized the
procedural rigidities of tine writ of habeas corpus and employed the writ, following the
American cases for the oversight of state penal machinery and for the condemnation of the
brutalities and tortures inflicted on the prisoners. On the basis of this, the Supreme Court
treated Batra's letter as a petition for habeas corpus and issued the writ to the Lieutenant
Governor of Delhi and the Superintendent of Central Jail ordering that Prem Chand should not
be subjected to torture and the wound on his person should receive proper medical attention16.
In Citizen for Democracy v. State of Assam17the Court treated the letter as a petition under
Article 32 and held that handcuffing and in addition, tying with ropes of the patient prisoners
who are admitted in the hospitals, is violation of human rights guaranteed under Article 21 of
the Constitution. In Hoskot 18 the Court held "If a prisoner sentenced to imprisonment, is

10
Sheela Barse v. State of Maharashtra, 1988 (1) Bom. Ce. Cases 58 at 64.
11
1978 AIR 597
12
Hussainara Khatoon (II) v. Home Secretary, State of Bihar, (1980) 1 SCC 81
13
AIR 1980 SC 1579
14
AIR 1980 SC 1585
15
AIR 1981 SC 745.
16
M C Valsan. Rights of Prisoners: An Evolving Jurisprudence, 2013 58.(Unpublished Ph.D. Dissertation, Cochin
University of Science and Technologies
17
AIR 1995 SCC 743.

18
AIR 1975 SC 1548

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virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special
leave appeal, for want of legal assistance, there is implicit in the court under Article 142 read
with Articles 21 and 39A of the Constitution, power to assign counsel for such imprisoned
individual for doing complete justice. This is a necessary incident of the right of appeal
conferred by the Code and allowed by Article 136 of the Constitution. The inference is
inevitable that this is a State's duty and not Government's charity”. After a period of six year
the Supreme Court again said in Khatri v. State of Bihar19 that the right to free legal services is
clearly an essential ingredient of reasonable, fair and just procedure a person accused of an
offence and it is implicit in the guarantee of Article 21.

19
AIR 1981 SC 928.

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 Rights of Prisoners Guaranteed Under Various International
Instruments: -
The provisions relating to the rights and treatment of the prisoners are contained in various
international instruments like 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 and the United Nations Basic Principles for the
Treatment of Prisoners etc. Now we are discussing the provisions contained in these
international instruments regarding the rights and treatment of prisoners one by one as
hereunder: -

The Universal Declaration of Human Rights (UDHR)

The General Assembly of the United Nations (UN) adopted the Universal Declaration of
Human Rights (UDHR) on December 10, 1948 to promote the human rights in the world. It
has been stated under Article 1 of the UDHR that all human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood. Article 2 of the UDHR provides that everyone is entitled to
all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status. It would be clear that the term “all human beings” used in
Article 1 and the term “everyone” used in Article 2 also includes prisoners.

Article 3 of the UDHR states that everyone has the right to life, liberty and security of person.
Right to life is one of the basic human rights and is available to both either to prisoner or to
freemen. Prisoners are not subjected to torture, cruel, inhuman treatment in the prisons. It
would be clear from the language of the Article 5 of the UDHR which states that no one shall
be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The International Covenant on Civil and Political Rights (ICCPR)

Regarding the treatment of prisoners provisions are made in the International Covenant on
Civil and Political Rights (ICCPR) which has been adopted by the General Assembly of the
United Nations adopted on December 16, 1966 and came into force on March 23, 1976. Article
6(1) of the ICCPR grants every human being whether prisoner or freemen inherent right to life.
This right shall be protected by law and no one shall be arbitrarily deprived of his life. It has
been further provided under Article 7 of the ICCPR that no one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment.

Article 10 of the ICCPR which is most important Article in respect of treatment of prisoners. It
provides that all persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person20. The distinction must be made between
the accused persons and convicted persons. Accused persons must be segregated from
20
The International Covenant on Civil and Political Rights, Article 10, paragraph 1

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convicted persons and must be accorded separate treatment appropriate to their status as
unconvicted persons. However, exceptions may be made in exceptional
circumstances21. Similar provisions are made for accused juvenile persons. They should be
separated from adults and brought as speedily as possible for adjudication22. The essential aim
of the treatment of prisoners should be their reformation and social rehabilitation23.

The United Nations Standard Minimum Rules for the Treatment of

Prisoners
It has been adopted by the First United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social
Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.
The United Nations Standard Minimum Rules for the Treatment of Prisoners contains so many
rules regarding the rights and treatment of prisoners but we can only provide some of them
which are most important. These are as follows: -

•
Provisions relating to the separation of categories of prisoners.24
•
Provisions relating to the accommodation.25
•
Provisions relating to the clothing and bedding.26
•
Provisions relating to the food.27
•
Provisions relating to the exercise and sport.28
•
Provisions relating to the medical services.29
•
Provisions relating to the protection of prisoners against double jeopardy.30
•
Provisions relating to the prohibition of corporeal punishment, punishment by placing
in dark cell, and all cruel, inhuman or degrading punishment.31
• Provisions relating to the information to and complaints by prisoners.32
• Provisions relating to the rights of prisoners to contact with their family and reputable
friends.33
Apart from these rules the United Nations Standard Minimum Rules for the Treatment of
Prisoners also made rules regarding the treatment of prisoners under sentence, insane and
mentally abnormal prisoners, prisoners under arrest or awaiting trial, civil prisoners and
persons arrested or detained without charge in a detailed manner.

21
Ibid. Article 10, paragraph 2(a)
22
Ibid. Article 10, paragraph 2(b).
23
Ibid. Article 10, paragraph 3
24
The UN Standard Minimum Rules for the Treatment of Prisoners, Rule 8.
25
Ibid. Rules 9 to 14.
26
Ibid. Rules 17 to 19.
27
Ibid. Rule 20.
28
Ibid. Rule 21.
29
Ibid. Rules 22 to 26
30
Ibid. Rule 30.
31
Ibid. Rule 31.
32
Ibid. Rules 35 to 36.
33
Ibid. Rules 37 to 39.

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The European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment
The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment entered into force on 1 March 2002. The Convention establishes the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(the Committee). The Committee is permitted to visit all places of detention, defined by the
convention as “any place within its jurisdiction where persons are deprived of their liberty by a
public authority.” Once a state government is notified of the intention of the Committee to
carry out a visit it is required to allow access to the territory with the right to free travel without
restriction, full information of the facility in question, unlimited access to the facility and free
movement within it, the right to interview any person being held within the facility,
communicate freely with any person whom it believes can supply relevant information and
access to any other information which the Committee feels is necessary to carry out its task.
All information gathered is confidential. In exceptional circumstances a state may make
representations based on grounds of national defence, public safety, and serious disorder in
custodial facilities against a visit to a certain place or at a certain time. After each visit a report
is drawn up with any possible suggestions to the state in question.34

United Nations Basic Principles for the Treatment of Prisoners

Apart from these above international instruments concerning the rights and treatment of
prisoners, there is a United Nations Basic Principles for the Treatment of Prisoners which has
been adopted by the General Assembly on December 14, 1990 which clearly states that all
prisoners should be treated with due respect for their inherent dignity and value as human
beings without discrimination of any kind. They should be accorded with all the human rights
and fundamental freedoms set out in universally recognized international instruments except
the freedom of movement.

34
https://en.wikipedia.org/wiki/Prisoners%27_rights_in_international_law, (accessed on 19th Jan, 2018).

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 Human Rights of Undertrial Prisoners

The number of undertrials in the jails outnumbers the convicts. Due to the excessive delay in
the trials, many persons have to undergo a considerable period of confinement under judicial
custody. Unnecessary detention of the undertrials amounts to violation of human rights. Only
those undertrials should be detained, who are desperate criminals and are in a position to
influence the judicial process and are in a position to influence or induce the witnesses and the
complainants. Unchecked and undeterred arrests by the police aggravate the situation.

A prisoner detained in judicial custody is entitled to be tried within a reasonable period of time.
Speedy trial is the basic right of the accused. It is an old saying that justice delayed is justice
denied. Dr. A. P. J. Abdul Kalam, former President of India, also expressed his concern over
the time taken by courts in deciding cases and suggested to speed up the judicial process with
minimum adjournments.35

All the persons arrested under law are entitled to be provided free legal aid. Everybody has a
right to consult a legal advisor of his or her choice. In case a person is not capable of hiring the
services of a lawyer, it is the responsibility of the state to provide a lawyer at the cost of the
state. The Legal Services Authorities Act, 1987 has been enacted to give this facility a statutory
base. For this purpose, Legal Services Authorities have been constituted at the district and state
levels, besides National Legal Services Authority at the centre. However, poor and needy
persons are still languishing in the jails devoid of the legal benefits under these provisions.

There are instances where poor persons are involved in minor and petty offences and are
languishing in the jails because they are not in a position to arrange for the lawyers and sureties
due to poverty. There are many persons in the jail against whom charge-sheets have not been
filed by the police despite expiry of the stipulated 60 or 90 days as per the Code of Criminal
Procedure. To keep a person in judicial custody, without charge-sheet, amounts to serious
violations of the human rights.

There are instances where many persons are acquitted by the trial court. However, they have
already undergone a considerable period of imprisonment while pending trials. It is a serious
violation of basic rights of a person who suffers for no fault of his own. If a court of law
declares a person innocent and the person has already undergone 2-3 years or even more in the

35
The Tribune, Chandigarh, 27 March 2006.

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judicial custody, the person after release finds himself nowhere in the society and thus law and
justice are meaningless for him.

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 Human Rights of Female Prisoners
The most striking fact about female offenders is that there are so few of them in comparison
with the number of male offenders. This is a fact which may be observed in all countries, but
the proportion of female offenders varies according to the degree of feminine emancipation and
the extent of social protection afforded to women in different cultures.36 So we can see there is
some truth in the assertion that males are the delinquent sex. Various accounts of the
experiences of women in prison have been written by former prisoners and prison visitors. A
full scale academic study was carried out by Ann D. Smith and published in 1962.37 In India
the National Expert Committee on women prisoners headed by Justice V.R. Krishna Iyer has
made a detailed study of female offenders in India.
Until the beginning of the nineteenth century, even the most enlightened writers and statesmen
seldom considered that the needs of ‘women prisoners might be different from those of men.
Generally it was considered that if women were adequately segregated from men in prison they
presented no further special problem. Women are seldom mentioned in books on penal reform,
and the sufferings of women prisoners-if noted at all-were not pitied by the more fortunate of
their sex.
Even with regard to the method of execution of capital punishment discrimination was there
among male and female prisoners. In England, burning was the punishment for women
convicted of treason during that time. By the middle of the eighteenth century hanging had
become the accepted punishment for women convicted of capital crimes. With the abolition of
the earlier elaborations to simple ranging-such as mutilation and exposure of the corpse of the
person executed-it was felt that the ‘decency due to the sex’ would no longer be offended by
extending the punishment of hanging to women.
Women's prisons are not materially different from men's prisons in its working everywhere.
Compared to men; women offenders are considerably less and therefore no special
programmes are drafted for them. Female prisoners are not permitted to leave from the
enclosure set apart for female except for release, transfer or attendance at court or under the
orders of the Superintendent for any special purpose. Male prisoners are excluded from the
female ward. The objectives of all these provisions are to give protective discrimination to the
women even though they are inside the prison. Taking into consideration the special care
needed for female body various special protections are provided for it. For example, facilities

36
J.E. Hall Williams, The English Penal System in Transition (1970), p.246
37
Ann D. Smith, Women in Prison, A Study in Penal Methods, (1962), p.324.

15 | P a g e
for pre-natal and post-natal treatment for women are available in all prisons where females are
kept. Handcuffs can be used as a means of restraint under the same conditions as male
prisoners but using fetters are completely excluded in the case of female prisoners. In the state
when a female prisoner is released from prison she is given special treatment. Before a female
prisoner is released, timely notice has to be sent to her relations or friends to enable them to
attend at the jail and receive her. Women prisoners who are released from jails has to be
provided with conveyances where the distance to be travelled by them exceeds 1.6 K.M. The
child up to five years of age of a female prisoner will be admitted to jail with its mother if it
cannot be placed with relations or otherwise properly provided for. Children born in jail will be
allowed to remain with their mother upto five years of age if there is nobody to look after it
outside. A recent study has revealed that most of the women are anxious about their children.
They also feel that if adequate vocational training is given to them, it would help them in the
process of rehabilitation and resocialization.
Women prisoner's rights are specially protected under the Indian Penal Code against offences
like rape, intercourse by Superintendent of jail, remand home etc. A women prisoner under the
special circumstances inside the prison may subject herself to have intercourse with the
authorities of the prison by the inducement from the authorities. Such intercourse even if it did
not amount to the offence of rape, will be punished under Section 376C of the Indian Penal
Code. So this section of the Indian Penal Code can be said to be protective shield of the women
prisoners in India, but how these offences are brought to the attention of criminal courts. The
procedure and measures suggested at present are not adequate. Therefore, most of such
offences go unnoticed. The offences will bring to light only after the release of the prisoner.
The National Expert Committee on women prisoners headed by Justice V.R. Krishna Iyer in its
report submitted to the government in February 1988 has recommended that beneficial
correctional approaches are owed to all prisoners, men and women, irrespective of their
number. According to the committee the numerical argument cannot be held to be a limiting
factor in creating suitable custodial conditions for women. Moreover, non-custodial institution
can allow itself to cause further damage to a prisoner through the risk of contamination. The
Committee therefore recommended that custodial facilities should be set up in every state
separately for convicted and undertrial women, and adequate mobility must be provided to the
prisoner and the law enforcement authorities to facilitate such concentrated intake speedily.
Separate prisons for women and completely separated custodial facilities for convicted and
undertrial women were suggested by the committee. The same suggestion was made by
another committee also and the Kerala government has acted on the basis of that.
16 | P a g e
In India there is no statutory recognition to these innovative social and rehabilitative methods.
Steps should be taken for that. Women, insane and young people inside the prison are classes
which require ‘protective discrimination’ for their rehabilitation. Individualization of the
offender as a method of his or her rehabilitation has now become the cardinal principle of
modern penology. It can be seen that the modern penologists have worked out an objective
classification of prisoners according to differential treatment. The prisoners should be
classified according to the treatment to which they are likely to respond most favorably.

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 ROLE OF JUDICIARY IN PROTECTING THE RIGHTS OF
THE PRISONERS:

In India, the judicial system plays an important part as it sets the laws which are to be
compulsorily obeyed by the citizens of the country. Judiciary in every nation has an obligation
and a constitutional role to protect Human Rights of citizens. Since every country has judicial
authority for protection of its national citizens, it has obligation to make riles and regulation of
prison for the person who is in conflict with the law. But it doesn’t mean that constitution of a
nation will not provide any right to the prisoners. The Apex court of India interpreted the ambit
of Article 21 of the Indian constitution and developed human right jurisprudence for providing
protection and rights to maintain prisoner’s human dignity. If any individual violates the rights
of prisoners, then they violated the provision of article 14.
a) RIGHT TO LEGAL AID:

The concept of legal aid provides a legal remedy to protect their human rights during
trial and conviction for any offence. In the case, M.H Hoskot v. State of Maharashtra,
“the court held that the right to legal aid is one of the components of fair procedure
i.e., the Supreme Court reading article 21 and 39-a, read with article 142 and section
304 of CrPC together acknowledge that the government was under duty to provide
legal service to the accused persons.”

b) RIGHT TO SPEEDY TRIAL:

Article 21 of the Indian constitution provides right to speedy trial as a fundamental
right to the prisoners. This article guarantees just, fair, and reasonable procedure. The
fact that the provision of a speedy trial is a socio-legal right to protect the individual,
make it essential for the accused person. It is in the interest of all concerned that the
accused is guilty or innocent is discovered as fast as possible in the situations.
The provision of speedy trial of accused is on the primary motive of the criminal
justice system. Once the court took the cognizance of the allegation then the trial has
to be conducted speedily to find out who is innocent or who is guilty and discharge the
innocent. It is relevant to mention that if there was a delay in, directly constitute denial
of justice. The right of speedy trial is contained under section 309 of CrPC.

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 In Hussainara Khatoon (II) v. Home Secretary, State of Bihar, the Court while
dealing with the cases of under trials who had suffering from the long time held that a
procedure which keeps such large number of people behind bars without trial so long
cannot possibly be regarded as reasonable, just or fair so as to be in conformity with
the requirement of Article 21.

c) RIGHT AGAINST INHUMAN TREATMENT OF PRISONERS

Article 21 provides that no person shall be deprived of his life or personal liberty
except according to the procedure established by law. And human rights are a part and
parcel of dignified life. So that the expression of personal life include guarantee
against torture and assault by the State or its functionaries.

In the case of A.K Gopalan v. Union of India38

In that case the petitioner A.K Gopalan, a communist leader was detained under the
Preventive Detention Act, 1950. He was challenged that the validity of his detention
under the Act on the ground, that it was violative of his right to freedom of movement
under Article 19(1)(d) which is the very essence of personal liberty guaranteed by
Article. 21 Of the Indian Constitution.

d) RIGHT TO BE INFORMED AND TO MEET FAMILY MEMBERS

AND FRIENDS
In the case of Sunil Batra (II) v. Delhi Administration
Where the Supreme Court recognized that the right of the prisoners to be visited by
their friends and relatives. The Court favored their visits but subject to search and
discipline and other security criteria. Visit to prisoners by family and friends are solace
in insultation, and only a dehumanized system can derive vicarious delight in
depriving prison inmates of this humane amenity. These rights are inherent in Articles
21 and 22(1) of the Constitution and require be recognizing and protecting.
e) RIGHT TO ENGAGE LAWYERS
In the case of Hussainara Khatoon v. Home Secretary, Bihar
Hon’ble Supreme Court states that it is the Constitutional right of every accused
person who is unable to engage a lawyer and secure legal services on account of
reasons such as poverty, indigence or incommunicado situation to have free legal
services provided to him and State and the State is under Constitutional duty to

38
AIR 1950 SC 27

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 provide a lawyer to such person if the needs of justice so require. If free legal
services are not provided the trial itself may be vitiate as contradict Article 21.

f) NARCO ANALYSIS OR BRAIN MAPPING

In the emerging development of science and technology Narco analysis, polygraph test
and brain mapping found to be most wanted tools for investigating agencies. But
unfortunately, the process was termed as breach of right to privacy of a prudent man.
Such test was previously conducted many a times in Arushi murder Case, Abu Salem
case, Pragya Thakur case etc.
In the case of Selivi and others v. State of Karnataka39
Supreme Court judgment holding the use of narco analysis brain mapping and
polygraph test on accused, suspects and witnesses without their consent is
unconstitutional, and violation of the right to privacy.

g) RIGHT TO REASONABLE WAGES IN PRISON:

The literal meaning of remuneration is that. “An amount of money which is paid to
someone for the work he has done”. Remuneration must not be less than the minimum
wages se and has to be paid to the person who has been appointed as labour or service
for the state.
In the case of People’s union for democratic rights v. Union of India40 “the court
explained that: when an individual offers labour or services to another individual and
remuneration which is paid to him is less than minimum wages in comparison of the
labour or service offered by him clearly under the scope and meaning of “forced
labour” under Article 23 of Indian Constitution.

39
Criminal Appeal No 1267 of 2004.

40
(1982) 3 SCC. 263

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 COMMITTEE REPORTS FOR PROVIDING RIGHTS TO
PRISONERS

By the orders and decisions of judiciary many committees were formed to improve the
conditions of prisoners; these committees were formed with basic motive to create prison a
better place to spend punishment for both men and women. Few of them include:

a) PRISON ACT, 1894: The Prison Act, 1894, presents the procedure how jail
management and administration work in India. This Act has rarely gone under any
significant change. However, the process of the audit of the prison problem in India
lasted even after this. In the year 1919-20, the Indian Jail committee published a report,
put major pressure on ‘reformation and rehabilitation of offender were considered as
the object of the prison administration. The need for completely overtaking and
strengthening the laws relating to prison has been constantly highlighted.
b) MODEL PRISON MANUAL: The MPM 1960 is the directing principle to create a
base for the present Indian prison management is governed 41 . On the guidelines of
MPM, the Ministry of Home Affairs, Government of India, in 1972, appointed a
committee that works n prisons. And made a report and mention the need for a national
policy on prison. They also made an important reference with concern to the
organization and treatment of offenders and laid down principles. The committee gave
following points on which prisoners can make contact with their families and lawyers:
• The no. of letters a prisoner can write in a month shall be restricted by
the government under rules. However, there shall be no limitation on the
numbers of letters received.
• Every prisoner shall be permitted to have meeting with their families,
relatives, friends and lawyer once in a month. However, the no. of
persons who may interview a prisoner at one time shall ordinarily be
restricted.
• For the visitors, proper waiting rooms may be constructed in every
prison to allow them to await their turn.
• The maximum time limit of the interview shall be 30 minutes, which can
further be extended by permission of the superintendent of prison.

41
The committee prepared the MPm and presented it to the Government of India in 1960 for implementation.

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 This committee issued a prescribed manner how the prisoners shall be
treated and they should be permitted to communicate family member
and lawyers in a prescribed manner

c) THE MULLA COMMITTEE: In the year 1980, the Government of India constitutes
a committee on Jail Reform; appoint Justice A.N. Mulla a chairman. The prime motive
of the committee was to evaluate the laws; rule; and regulation, keeping in mind that
the overall objective was to the protection of society and rehabilitation of offenders42.
d) THE KRISHNA IYER COMMITTEE: This committee was set-up to commence an
analysis of the current condition of women prisoners in India43. It has suggested an
option of more women in the police force in view of their special role in managing
women and children offenders. “Women spend their punishment in rigorous condition
than men because of their small numbers. They have faced great family dislocation than
men because there is so fewer prisons to choose as an option for the imprisonment of
women. They have been over-classified or, in any situation, they have been imprisoned
in a facility that does not match to their classification. For similar reasons, they have
been offered lesser programs than male prisoners, particularly in the situation of women
imprisoned under protective custody arrangement, of which there is only a handful.
They had no substantial seasonal training opportunities.”

42
The Mulla committee submitted its report in 1983.
43
In 1987, the Government of India appointed the justice Krishna Iyer

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 CONCLUSION& SUGGESTIONS

Prison has become a great concern for all recently. In the eighties the judiciary’ examined ‘the
problems of prison administration in several decisions. The subject has been discussed by
jurists too. These developments were the result of the new awakening in the field of human
rights in the international community. The atrocities in jails, especially the blinding cases in
Bihar jails, persuaded the courts to think seriously about the conditions in jails. Questions came
before them in more ways than one. Besides formal writ petitions, simple letters from prisoners
or other concerned individuals as well as newspaper articles written by social activists moved
the courts to take activist stance. Courts had granted many rights to the prisoners by reading
them into Article 21.

In the Constitution of India, there is no specific guarantee of Prisoner ‘s Rights. But there are
certain rights given under Part III of the Constitution, which are available to the prisoners
because a prisoner remains a ‘person’ in the prison. A prisoner is a person who is deprived of
his personal liberty due to the conviction of a crime and imprisonment is the most common
method of punishment provided by all legal systems. Imprisonment makes the prisoner repent
about his past conduct. The judiciary protects the rights of prisoners’ and recognizes their
rights. They are protected from torture and solitary confinement. There are certain statutes in
the Constitution which provides that certain rights of the prisoners are enforced, like Prisoners
Act, 1900; Prisoners (Attendance in Courts) Act, 1955; Prison Act, 1894 etc. There are also
Prison and Police Manuals which have certain rules and safeguards for the prisoners and it is
an obligation on the prison authorities to follow these rules. According to the Universal
Declaration of Human Rights, ‘All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards one other in a spirit of
brotherhood.’
Less than 200 years ago, the attitude to prisons, prisoners and punishment was brutal and
barbaric. Recognition of the human being in the convicted offender is an idea that has been
accepted after a long struggle with the state. The Indian socio-legal system is based on non-
violence, mutual respect and human dignity of the individual. If a person commits any crime, it
does not mean that by committing a crime, he ceases to be a human being and that he can be
deprived of those aspects of life which constitutes human dignity. Even the prisoners have
human rights because the prison torture is not the last drug in the Justice Pharmacopoeia but a

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

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 BIBLIOGRAPHY

BOOKS:

1. Pandey, J.N., ‘The Constitutional Law O India’, 49thed, Central

Agency, Allahabad
2. Shukla, V.N., ‘Constitution of India’ 11th edn,Eastern Book Company,
Delhi, 2008.
3. Chandra,U. , ‘ Human Rights’ Allahabad Law Agency Publications
4. Prof. N.V. Paranjape, ‘Criminology and Penology’, Central Law
Publication

WEBSITES:
1. https://www.lawaudience.com/rights-of-prisoners-in-india-a-
legal-analysis
2. http://www.legalserviceindia.com/legal/article-75-rights-of-
prisoners.html
3. https://blog.ipleaders.in/human-rights/
4. http://www.srjis.com/pages/pdfFiles/150748315730%20Deepak
%20kumar.pdf

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