RIGHTS OF PRISNORS

“The degree of civilization in a society can be judged by entering its prison.”

An exhaustive report based on inspection of Indian prisons tellingly brings to light the denial
of the basic human rights of prisoners in India and point to the need for prison reform across
the country.

According to the report of the National Crime Records Bureau (NCRB) titled “Prison
Statistics India 2012” and released in September 2013, gives the latest figures of undertrial in
Indian jails. The numbers are 2,54,857, that is, 66.2 per cent of the total number of inmates.
Also 344 women convicts with their 382 children and 1,226 women undertrials with their
1,397 children were lodged in various prisons in the country. The report further notes that
4,470 inmates, or 1.2 per cent, have mental illness.

Prison is an opaque institution with a majority of its inmates being undertrial prisoners, which
means that no one really knows whether most of them have committed any crime at all.
When we know that they belong to extremely marginalized and deprived section of society,
shunned into confinement and forbidden from their right to liberty, it makes us wonder
whether the much-touted tilt of our constitution to the disadvantaged has helped them in
reality.

PRISON SYSTEM IN INDIA – AN OVERVIEW

The need of reformation in the prison systems throughout the world can be symbolised in
quotation above, although prison systems everywhere are marked by inertia, few can match
India's in immutability of practice. A country which over 40 years ago cast off British rule
still administers its system under the colonial Prisons Act of 1894. Perhaps because the act is
such a relic of the past, or perhaps because prison officials prefer the route of least
accountability, the various state prison manuals that embody the 1894 provisions are
collectors' items, not only in short supply but expensive. A number of prison commissions
have attempted to update and revise the code, but aside from a few states, these efforts have
not received legislative approval. It is not only the rules and regulations but the day to day
reality of Indian prisons which is so archaic.

CLASSIFICATION OF PRISONERS

Prisoners can be categorised in three manners as under:-

1. Pre-trial prisoners,

2. Under-trial prisoners,

3. Convicted prisoners.

4. Detenues (under preventive detention).

Pre-trial Prisoners

Pre-trial prisoners are the accused, detained who are under the custody of the state machinery
for the purpose of interrogation and investigation, based on F.I.R. or evidences found during
the investigation. There is no specific charge sheet prepared either by the police authority or
by judicial authority. They are in the custody of state for very limited period. They are
entitled to have separate treatment appropriate to their status because the burden of proof
always lies on prosecution and the accused always have privilege of benefit of doubt. Until
the accused is found guilty, he is to be understood as innocent person. The state is authorized
to take initiative to control the crime at the initial level to maintain law and order in the
society and moreover, to obtain the evidences and details of the offence which is assumed to
have been committed by the accused. These powers are very wide but they cannot be utilized
arbitrarily and adversely against the personal dignity and liberty as a human being. Since the
police is monopolized and authorized to use the force as state machinery. There are several
limitations on the police authority to safeguard the Human Rights of pre- trial prisoners.

Under-trial prisoners

Under-trial prisoners are the prisoners, who are in custody of the state, awaiting their trial.
Their charge- sheet may or may not have been prepared by the police authority or judiciary.
In other words under-trial prisoner is a prisoner, who is in judicial custody (Jail), awaiting the
trial, in their case. Police investigation might have been completed or chargesheeted or it may
be pending.

Convicted prisoners

Convicted prisoner is a prisoner, who is found to be guilty of some particular offence, which
is committed by him. after due process of law. He 8 is punished by the competent court as a
penal action, to be kept in prison. There are many possibilities for the pre-trial prisoners as
well as for undertrial prisoners that they may be acquitted as an innocent after just and fair
trial that they are innocent whereas convicted prisoners are the prisoners who have to suffer
the punishment for their offences since they are found guilty of the offence and therefore,
their liberties are restricted by the State with the help of judiciary and jail authority as a penal
action.

Detenues (Detenues under the preventive detention)

The preventive detention is a devise with the state to control the crime by keeping the track
record of habitual offenders and criminals; they are detained in prison as a precautionary
measure and to safeguard the society. Section 151 of The Code of Criminal Procedure
provides the authority to the police officer to arrest any probable offender without orders
from Magistrate or without warrant if he feels that the commission of an offence cannot be
otherwise prevented because of the increasing crimes in society as well as increasing
organised crimes such preventive laws like PASA etc. are enacted. Arrest, detention and
custody or even judicial custody curtails personal freedoms and liberties guaranteed by the
Constitution of India but other fundamental rights are still available to them as citizen of
country, these rights may be for their survival, maintain good health or may be for training,
educating, recreation, earning, rehabilitation, reconciliation, and human treatment as a human
being during the stay in prison.

MAJOR PROBLEMS OF PRISONS RELEVANT TO INDIA

Despite the relatively low number of persons in prison as compared to many other countries
in the world, there are some very common problems across the jails in India, and the situation
is likely to be the same or worse in many developing countries. Overcrowding, prolonged
detention of under-trial prisoners, unsatisfactory living conditions, lack of treatment
programmes and the allegations for the indifferent and even inhuman approaches of prison
staff have repeatedly attracted the attention of the critics over the years.

Over crowded

Congestion in jails, particularly among under trials has been a source of concern. Law
Enforcement Assistance Administration National Jail 22 Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment General Assembly Resolution
43/173 (9 December 1988) 29 Census in 1970 had revealed that 52% of the jail inmates were
awaiting trial1 . Obviously, if prison overcrowding is to be brought down then undertrial
population has to be reduced drastically. Of course, this cannot be happened without the
courts and the police working in tandem. The three wings of the criminal justice system
would have to act harmonically. Speedy trials are frustrated by a heavy court workload,
police inability to produce the witnesses promptly and a recalcitrant defense lawyer who was
bent upon seeking adjournments, even if such tactics harm his/her client. Fast track courts
have helped to the much extent, but it has not made any measurable differences to the
problem of pendency. Increasing the number of courts could not bring about a desired
difference as long as the current `adjournments culture' continues (Raghavan 2004)2.

Unsatisfactory living conditions

The overcrowding in the prisons leads itself to unsatisfactory living conditions. Although the
several jails have reformed outlined earlier have focused on issues like diet, clothing and
cleanliness, unsatisfactory living conditions continue in many prisons around the country. A
special commission of inquiry, appointed after the 1995 death of a prominent businessman in
India’s high-security Tihar Central Jail, reported in 1997 that 10 000 inmates held in that
institution endured serious health hazards, including overcrowding, “appalling” sanitary
facilities and a shortage of medical staff.3

1
Seventy eight report on congestion of under trial prisoners in jails (Law Commission of India 1979).
2
RAGHAVAN R.K. The hell that is prison Volume 21 - Issue 26, Dec. 18 - 31, 2004 front line
3
Human Rights Watch 2006
“No one wants to go to prison however good the prison might be. To be deprived of the
liberty and family life and friends and home surroundings is a terrible thing.”

“To improve the prison conditions what does not mean that prison life should be made
soft; it means that it should be made human and sensible for prisoners”.4

Staff shortage and poor training

Prisons in India have a sanctioned strength of around 49030 of prison staff at various ranks,
of which, the present staff strength is around 40000. The ratio between the prison staffs and
the prisoners in Indian prison is approximately 1:7. It means only one prison officer is
available for 7 prisoners in India.

Lack of legal aid In India

legal aid to those who cannot afford to retain the counsel which is only available at the time
of trial and not when the detainee is brought to the remand court. Since the majority of
prisoners, those are in lock up as well as those in prisons have not been tried, the absence of
legal aid until the point of trial reduces greatly the value of the country’s system of legal
representation to the poor. The lawyers are not available at the point when many of them
need such assistance.

Maintenance of the Prisoners

Certain guidelines are provided for the maintenance of prisoners by the Model Prison
Manual, which includes directives regarding food, clothing, hygiene, education and
recreational facilities .it also includes grant of proper and adequate wages to the prisoners in
accordance with the work undertaken. Prisoners should be provided the proper nutritious diet
with special care to pregnant and nursing women. In case of R.D. Upadhyay v. State of
Andhra Pradesh (A.P.) & Ors.,

4
Pandit Jawaharlal Nehru wrote in India and the World Prison Land (pp.108-129)
the Supreme Court gave certain directives regarding women prisoners and their children.
Some of them were:–

 A child of the women prisoner shall not be treated as an under trial convict while in jail
with his mother. Such a child is entitled to food, shelter, medical care, clothing, and education
as a matter of right.

 Women prisoners with children should not be kept in the sub jails, which are not equipped
to keep small children.

 The stay of children in crowded barracks amidst women convicts, under trial and offenders
relating to all types of the crimes, including violent crimes, is most harmful for the
development of their personality. Therefore the children deserve to be separated from such
environments on the basis of priority.

Judicial Activism on Prison Reforms

The Indian Supreme Court has been active in responding to human right violations in Indian
jails and has, in the process, recognized a number of rights of prisoners by interpreting
Articles 21, 19, 22, 32, 37 and 39 A of the Constitution in a positive and humane way. The
Supreme Court of India in the recent four decades has been very active against violation of
the Human Rights of the prisoners. In this area an attempt is made to explain the some of the
provisions of the rights of prisoners under the International and National contexts and also as
interpreted by the Supreme Court of India in the light of Fundamental Rights. Through its
positive approach and the Activism, the Indian judiciary has served as an institution for
providing effective remedy against the violations of Human Rights. Prisoners depend on
prison authorities for almost all of their day to day needs, and the state possesses control over
their life and liberty, the mechanism of rights springs up to prevent the authorities from
abusing their power. Prison authorities have to be, therefore, accountable for the manner in
which they exercise their custody over persons in their care, especially as regards their wide
discretionary powers. Disturbing conditions of the prison and violation of the basic human
rights such as custodial deaths, physical violence/torture, police excess, degrading treatment,
custodial rape, poor quality of food, lack of water supply, poor health system support, not
producing the prisoners to the court, unjustified prolonged incarceration, forced labour
,overcrowded prisons, prolonged detention of under trial prisoners, unsatisfactory living
condition and allegations of indifferent and even inhuman treatment by prison staff and other
problems observed by the apex court have led to judicial activism

Role Played By Judiciary for Prisoners Protection

The Indian Judicial system has played a significant role in the direction of protection of
prisoners and also to ensure safety and security of the people in custody or inmates or
detenues. Judicial setup (especially supreme courts and high courts) in India, under no
circumstances, can pave way for violation of human rights of the people in custody and allow
inhuman activities to go on. The jurisdiction of the judiciary system is to see to it that the
accused, whom they order to be arrested by police, is duly informed of the grounds for his/her
arrest. They should also ensure that the nearest relative of the accused is in touch with him
and the accused is allowed to contact the legal practitioner of his own choice and appropriate
arrangements are also made to regain his freedom. It is provided in the Code of Criminal
Procedure (Cr.P.C.). The Judicial Magistrate should enquire from the accused as to whether
he/she has been informed of the grounds of his/her arrest. This provision is made in Art.22
(1) of the Indian Constitution. Also on the same lines the judicial system, including the
Supreme Court of India as its Apex Body, has interpreted Art.22(2) of the Indian Constitution
to mean that the arrested person must be produced before the Magistrate within twenty four
hours of his arrest. It is further provided that the officers responsible for the custody of the
accused should produce him before them as directed by the Constitution as well as Cr.P.C.
Further, after completion of the hearing before the Magistrate, if it is proved that the crime is
bailable, the bail should be granted and the accused be released immediately on bail. Further,
when the trial is pending in court the Judicial system plays another role of treating the
accused with dignity and directs the authority responsible for his custody to accord human
dignity to her. Honourable Supreme Court of India has laid down that the accused in pretrial
detention is entitled to fair and decent treatment by way of comforts 251 and medical
attention so that humanity is never degraded or disregarded. Supreme Court and other courts
in India have passed various rulings that any violation of human rights during under-trial
detention will be followed by compensation for unlawful detention. Apart from the legal
rights conferred on the accused, now the bodily conditions, in custody of police also, are
required to be maintained by the custodians. Such requirements, though may not be up to
standard required, should be at least be reasonable. The living conditions and other common
facilities provided to the accused in custody should ensure a good healthy environment,
provision of better living accommodation, separate toilets for ladies and gents, bathrooms
with basic necessities, adequate care of children, accompanying them suitable medical
facilities, education, vocational and recreational facilities and prepare them for rehabilitation
after release. Finally, the quality of food served in custody must be good, it should be cooked
hygienically and should be well tested before it is served. Further, the food must include well
balanced diet to inmates. The jails must be treated as reformatory Homes and not places for
molesting, teasing, torture and ill-treatment. Finally, the last role the Indian Judicial system or
machinery has to play is to set rules that indicate the human rights of the accused in custody
after considering provisions in the Universal Declaration of Human Rights, National Human
Rights Commission, constitution and Cr.P.C. and deliver their judgments.

CONCLUSION

Prison and prison administration plays an inevitable role in the criminal justice administration
system in India. Various criminologists have stated that no one in this world born as criminal,
but his economical and social backgrounds make him a criminal. In the light of such views, it
has to be stated that the prisoners as well as the prison administration has to be changed in
such a way that they should not feel isolated in this society, and there must be a hope in their
mind that they also can change themselves and be a part of development in their society.
Proper food, shelter, health care treatment and other such basic necessities must be fulfilled
by the concerned prison authorities in order to make the prisoners a productive group of the
society after their period of incarceration.