PRISONER RIGHTS

admin | July 24, 2016 | Constitutional, Criminal Law | No Comments

THIS ARTICLE WAS WRITTEN BY ASMITA RAKHECHA A STUDENT OF UNIVERSITY OF CALCUTTA.

INTRODUCTION

The primary purpose of imprisonment is to safeguard society from crime. Prisons are an integral part of the of the criminal justice system of a country. In a prison, individuals are physically confined and deprived of their personal freedom. In different countries, the objective of imprisonment varies. The objective may be punitive, deterrent, rehabilitative or reformative. Recently, there has been a shift in the approach of the criminal justice system from being reactive to being proactive and protecting the rights of the prisoners. Both at the international as well as the national level, there are several rights available to prisoners today.

INTERNATIONAL LAWS

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power is a Resolution passed by the UN General Assembly. According to this Resolution, victims should be treated with compassion and respect for their dignity. They have a right to access the mechanisms of justice and to prompt redressal for any harm that they suffer. They must be informed of their rights to seek redress and must be provided with proper assistance throughout the legal process. Measures must be taken to minimize the inconvenience suffered by them and avoid unnecessary delay in disposition of cases.

Other international resolutions are Declaration on the Protection of all Persons from Enforced Disappearance; United Nations Standard Minimum Rules for the Administration of Juvenile Justice; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; and Principles of Medical Ethics relevant to the Role of Health Personnel in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The United Nations, in the year 1990, recognizing the importance of drafting a declaration on the human rights of prisoners presented a document with certain guidelines which could be adopted in order to safeguard the rights of Prisoners. They realised that sound policies of crime prevention and control were essential for the economic and social development of any country in general. The following are a few guidelines that the United Nations put forward:

All prisoners shall be treated with the respect due to their inherent dignity and value as human beings.

There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

It is, however, desirable to respect the religious beliefs and cultural precepts of the group to which prisoners belong, whenever local conditions so require.

The responsibility of prisons for the custody of prisoners and for the protection of society against crime shall be discharged in keeping with a State’s other social objectives and its fundamental responsibilities for promoting the well-being and development of all members of society.

Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.

NATIONAL LAWS

The struggle for independence in India saw a dire need for reforms regarding rights of prisoners. The Supreme Court of India has ever since played an active role in the protection of the rights of prisoners. Article 21 was drafted under the Constitution of India to ensure rights of personal liberty, thus restricting any inhuman, cruel or irrational treatment towards prisoners, both national and foreign, alike. Article 21 states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 20 embodies the principles of natural justice. Article 20(1) protects persons from ex post facto laws or, in other words, retroactive criminal legislation. For a punishment to be meted out, the act must be an offence under the laws at the time of the commission of the offence. If a person commits an act which is not an offence at the time of commission of the act, he cannot be punished for it later when the act is declared to be an offence under the law. Article 20(2) embodies the maxim “nemo debit visvexari” which means that a man should not be punished twice for the same offence. Article 20(3) embodies a rule of common law which dictates that no person accused of any offence shall be compelled to be a witness against himself. It protects people from self-incrimination.

The Code of Criminal Procedure provides a prisoner with several rights. The various provisions of the Code are discussed below:

Section 50 requires an accused to be informed of the grounds of his arrest and of his right to bail. When a police officer arrests a person without a warrant, he is required to communicate to the accused the full particulars of the offence for which he has been arrested.

Section 49 relates to the manner in which the accused is to be treated after his arrest. According to this section, the person who has been arrested must not be subject to restraint greater than what is necessary to prevent his escape. He should not be subject to any unnecessary restraint.

Section 57 grants one of the most important rights of an arrested person. This Section states, “no police officer shall detain in custody a person arrested without warrant for a longer period that under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under S.168, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.” Every person must compulsorily be produced before a Magistrate within 24 hours of his arrest.

Under Section 54, if a person alleges that the examination of his body will provide evidence to disprove the commission of any offence by him or which will establish the commission of an offence against his body by another person, then the Magistrate must direct the examination of his body by a registered medical practitioner if he believes the request to be genuine.

Section 300 guaranteed the right of the accused not to be prosecuted more than once for the same offence. No man’s life or liberty can be put in jeopardy twice based on the same set of facts and circumstances.

By virtue of Section 303 of the Code, any person against whom a proceeding has been started has the right to legal representation of his choice. Further, under Section 304, if an accused is unable to hire a legal authority for himself, then the State will have to arrange one for him at its expense. The right to free legal service is implicit in Article 14 and 21.

Section 436A of Criminal Procedure Code states that every undertrial prisoner who has served half the maximum sentence provided for the offence for which he is charged should be released on a personal bond.

Undertrials constitute more than 60% of the prison population in India. The International Centre for Prison Studies (ICPS) reported that at 30 (2012) the Indian incarceration rate is among the 10 lowest rates in the world. Many were languishing for petty offences as they do not have the means to furnish a bail bond or because there is no one to stand surety for them. In September 2014, the Supreme Court gave the Centre three months to frame a comprehensive roadmap for fast-tracking the entire criminal justice system and asked the AG to take a look at the arrest procedure and whether it could form part of a legislative policy framework.

JUDICIAL ACTIVISM

The judiciary has recognized the importance of prisoners’ rights. The Supreme Court and the High Courts have noted the deplorable conditions in the prisons in India and recognized the need to secure the rights of the prisoners. The most important case on rights of prisoners is Sunil Batra v. Delhi Administration ^[1]. Justice Krishna Iyer pointed out, “Convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess.” In the same case, it was also held that convicted persons go to prisons as punishment and not for punishment. Prison sentence must be carried out as per the orders of the Court. Prison authorities cannot impose any additional punishment without sanction of the Court. The Court also elaborated on the various rights available to a prisoner. These are “freedom to read and write, to exercise and recreation, to meditation and chant, to comforts like protection from extreme cold and heat, to freedom from indignities such as compulsory nudity, forced sodomy and other such unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to minimal joys of self-expression, to acquire skills and techniques.” Further, every prisoner also has the Right to Basic Minimum Needs which include right to proper accommodation, hygienic living conditions, wholesome diet, clothing, bedding, timely medical services, rehabilitative and treatment programmes. In Charles Sobraj v. Superintendent ^[2], the Supreme Court held that even though some rights of prisoners are taken away in the process of incarceration, prisoners still possess right for the protection of basic human dignity as well as rights for their development into better human beings.

The Supreme Court, in Maneka Gandhi v. Union of India ^[3], held that no person could be deprived of his/her life or personal liberty by a procedure, which is arbitrary, unfair or unreasonable. If a law depriving a person of their right under Article 21 is found to be arbitrary, unfair or unreasonable, it shall be declared void for violating Article 21. Rudul Sah v. State of Bihar ^[4] is another landmark case, which introduced compensatory jurisprudence for illegal detention in prisons. A person has the right to compensation if their right to personal liberty is taken away illegally.

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