RIGHTS OF PRISONERS: AN INTERNATIONAL AND

INDIAN HUMAN RIGHT PERSPECTIVE

CHAPTER 1
INTRODUCTION

1.1 INTRODUCTION
Rights of the prisoners has been the topic of the international as well as national concern.
In India, even after 60 years of the independence, what we could find that, the police and
jail administration system in India has not changed its attitude towards the prisoners and
the accused persons. The police and the jail administration in India still having the same
attitude as that, they have during the period of the British rule in India. Therefore, it is
necessary to deal in detail with this particular topic.

1.2 AIMS. OBJECTS AND IMPORTANCE OF THE STUDY

In the todays context, i.e. in the present era of the Human Rights Development, the
Rights of Prisoners has become an important issue of the national concern. During the
period of the British rule in India, there was very gross violation of the human rights of
the prisoners.
It is witnessed by all of us from the Autobiography of Veer Savarkar that, how strange the
situation of the prisoners in the Andaman and Nicobar Jails. During that period, British

Govt, use to give much brutal and inhuman treatment to the Indian Patriots. And Bhagat
Singhs declaration of hunger strike to ameliorate the lot of political prisoners, coming as
it did in quick succession to the life-sentences in the Assembly Bomb Case, added to the
causes that contributed to his influence on the public. There were hunger strikes before,
by political prisoners, some of which ended fatally. But, except in the case of the
prisoners in the Kakori Conspiracy Case, these hunger strikes were undertaken to redress
particular grievances. It was Bhagat Singhs hunger strike which first diverted the
attention of the public to the need of the amelioration of the lot of political prisoners as, a
class. But, during that period also, some patriots started to bring awareness among the
prisoners about their rights, and also fought for them. E.g. it has been found in the history
that, Shahid Bhagat Singh has made a strike in jail for his rights, when he was in prison.
After the independence, it was anticipated by the people that, now there will be much
better police machinery. But, this dream of the common man has remained the dream
itself, because, even after the independence, the police machinery and jail authorities in
India followed the same path as laid by the Britishers. Because even after the
independence (more specifically, even after the 50 years of the independence), the police
and jail authorities in India has not been ready to leave the brutal policies as laid down by
the Britishers. Still today, there are so many examples of the human rights violations of
the prisoners by the police and jail authorities, Bhagalpoor Blinding Case is the burning
example in this behalf. This case is just for the sake of example, there are so many such
cases throughout the country, which creates a terror in the minds of the people. It is the
thing of shame for the democratic state like India, that, the people have more terror in
their minds about police and jail authorities than the criminals and terrorists. Taking into

considerations all this circumstances, I thought that, there is much necessity to bring
awareness among the people about their rights; therefore, I am doing my dissertation in
this subject.

1.3

Research Methodology
As the study is going to based on primary and secondary sources, the researcher is of the
view that this type of research can be carried fruitfully by adopting the doctrinal method
which is the most appropriate method.

Doctrinal research is concerned with the formulation of legal doctrines through the
analysis of legal rules. Within the common law jurisdiction legal rules are to be found
within statutes and cases (the source law) but it is important to appreciate that they

cannot, in themselves, provide a complete statement of the law in any given situation.
This can only be ascertained by applying the relevant legal rules to the particular facts of
the situation under consideration.

As will be discussed below in the section on methodology, deciding on which rules to apply
in a particular situation is made easier by the existence of legal doctrines (e.g., the doctrine of
consideration within the law of contract). These are systematic formulations of the law in
particular contexts. They clarify ambiguities within rules, place them in a logical and
coherent structure and describe their relationship to other rules. The methods of doctrinal
research are characterized by the study of legal texts and, for this reason; it is often described
colloquially as black-letter law.

1.4

HYPOTHESIS

The hypothesis for this research are as follows

The rights of the prisoners have been properly enacted by the Indian Legislatures.
There has not been a proper implementation of the rights of the prisoners.
International law has been more advanced as compared to Indian National law on the topic of
rights of prisoners.

1.5

SCHEME OF CHAPTERIZATION

The chapterization for the present dissertation is as followsIn the Chapter 1 the researcher is going to deal with the introductory matters
relating to the topic, such as aims and objects of the research, significance of the study,
research methodology used, hypothesis for the research etc.
In the Chapter 2 the researcher is going to evaluate the meaning and concept of the
prisoners and also would like to deal with the types of prisoners.

The Chapter 3 of the dissertation deals with the international and Indian
perspective on the rights of the prisoners and more specifically with the prisoners of war.
In this the researcher is going to analyze the provisions of the various international
documents like, UDHR, ICCPR, Geneva Convention On the Rights of the Prisoners etc.

and the constitutional rights of the prisoners along with statutory rights of the prisoners
and the rights of the prisoners under the Jail Manual in Indian context.

In the Chapter 4 the researcher is going to deal with the judicial pronouncements
in the area of the rights of the prisoners. In this there are various rights of the prisoners
has been recognized as a part and parcel of the article 21 of the Indian Constitution.
And the last, i.e. Chapter 5 of the research relates to the concluding remarks.

CHAPTER: 2
MEANING AND CONCEPT OF A PRISONER.

In its general sense, the prisoner means any person who is in jail undergoing an imprisonment,
for the offence committed by him or a person charged with the criminal offence, awaiting a trail,
and still who is in jail as an under trail prisoner. Under the Prisons Act, 1849, the term
prisoner, however, seems to be classified into three categories , namely, criminal prisoner,
convicted criminal prisoner and civil prisoner.

In short, prisoners are the person who is in jail for any act of crime done by him or who is
charged with an offence under any of the Criminal Law of the country in force. It also indicates
that , the prisoner may be a civil prisoner may be civil prisoner? Here the answer is not that much
easy, because there is no definite meaning of the civil prisoner. But in its general sense, the civil
prisoner means a person who is in jail, but not for the crime committed by him, but for any other
civil wrong, wherever, the law of the land permits the imprisonment for a civil wrong. Thus,
here, it can be safely stated that, prisoner is any person who is in jail undergoing an
imprisonment for any reason, whatever it may be.

DEFINITION OF RIGHT
A right is amoral and legal claim to have or get something.1 This word is used in various senses :
1. Sometimes it signifies a law, as when we say that natural right requires us to keep our
promises, or that it commands restitution, or that it forbids murder. In our languages it is
seldom used in this sense.
2. It something means that quality in our actions by which they are denominated just ones.
This is usually denominated rectitude.

1 Oxford Advanced learners Dictionary 7th Edi.OUP.

3. It is that quality in a person by which he can do certain actions, or possess certain things
which belong to him by virtue of some title. In this sense, we use it when we say that a
man has a right to his estate or a right to defend himself.

Austin defines right as A right is a faculty which resides in a determinate party or parties by
virtue of a given law and which avails against a party or parties in whom it resides.2
Holland defines right as the capacity in one man of controlling, with the assent and assistance of
the state the action of others3.

DEFINITION OF PRISON

A prison is a building where people are kept as a punishment for a crime they have committed or
while they are waiting for the trail.4 A prison is a where persons are confined, or restrained of
personal liberty; hence, it is a place for confinement, restraint, or safe custody.

2 Dr.S.R.Myneni,jurisprudence, Asia Law House 2 nd Edi.

3 V.DMahajan Jurispudence and legal Theory, EBC 1 st Edi. Reprint 2010.
4 Oxford Advance Learners Dictinory, 7 Edi.OUP.

According to the Karnataka Prisons Act 1963 Prison means any jail or place used permanently
or temporarily under the general or special orders of the State Government for the detention of
prisoners, and includes all lands and buildings appurtenant thereto, but does not include,i.

Any place for the confinement of prisoners who are exclusively in the custody of the

ii.

Police;
Any place specially appointed by the State Government under section 541 of the Code of

iii.

Criminal Procedure,1989;
Any place which has been declared by the State Government , by general or special
order, to be subsidiary jail;5

DEFINITIONS UNDER THE PRISONS ACT6

Prison means any jail or place used permanently or temporarily under the general or special
order of a State Government for the detention of prisoners, and includes all lands and buildings
appurtenant thereto, but does not include

Any place for the confinement of prisoners who are exclusively in the custody of the
police;

5 Sec 2(j) Karnataka Prisons Act 1963.

6 Sec.3 of The Prison Act 1894.

Any place specially appointed by the State Government under section 541 of the Code

of Criminal Procedure, 1882; or

Any place, which has been declared by the State Government, by general or special
order, to be a subsidiary jail;

Criminal prisoner means any prisoner duly committed to custody under the writ, warrant or
order of any court or authority exercising criminal jurisdiction, or by order of a Court- martial;
Convicted criminal prisoner means any criminal prisoner under sentence of a Court or
Court-martial and includes a person detained in person detained in prison under the provision of
Chapter VIII of the Code of Criminal Procedure, 1882 , or under the Prisoners Act 1871;
Civil prisoners means any prisoner who is not a criminal prisoners;

TYPES OF PRISONER

In general criminal matters there are following kinds of the prisoners

1) CONVICTED

Convicted prisoners is a person who has been tried and convicted for the offence committed by
him, by the competent court and sentenced to undergo imprisonment for a stipulated period is
called as a convicted prisoner.
This is further divided into two types that are Criminal prisoner, and Civil prisoner. Criminal
prisoner is a prisoner duly committed to custody under the writ, warrant or order of any court or
authority exercising criminal jurisdiction, or by order of a Court martial ; Civil prisoner is a
prisoner who is not a criminal prisoner .

2) UNDERTRIAL PRISONER
A person who is charged for committing certain offences and who is being tried by the court of
competent jurisdiction, who is charged for the offence but such charge against whom is yet not
proved and who has not been released on bail and who is either in police custody or Magisterial
custody . In a case, the Court held that, a prisoner may be convicted prisoner or an under trial
prisoner or he may be detainee under any law in force.7

3) PRISONER UNDER SECURITY PROCEEDINGS U/S. 109 AND 110 OF Cr.P.C.,

19738

7 State of Andhra Pradesh v. challa Ramkrishna Reddy AIR 2000 SC 2083.

Under the criminal procedure code , 1973, the police authorities and some executive magistrates
have been empowered to arrest any person u/s. 109 and 110 if they think that such person can
create the danger for the public peace and security or who is habitual criminal. Such person also
comes under the purview of definition of prisoner.

4) PRISINORS OF WAR9
In todays international law, there are so many conventions on the prisoners of war, all these
conventions, in general, provide that, a refugee or detained enemy prisoner should be provided
with certain human rights, like, Right to life, Right to freedom from torture, Right to food etc.
In short, a person who is from the armed forces of the enemy country, but comes as refugee in
this country or who has been arrested during the war also comes under the purview of the
definition of the prisoner.
The most important question which may arise in these circumstances is who are the prisoner. The
prisoner of the war are defined in Geneva Convention as ;

A. Prisoners of war , in the sentence of the present Convention, are persons belonging to
one of the following categories, who have fallen into the power of the enemy:

8 Code of Criminal Proceeding by Ratan and Dhirajal wadhawa publication reprint.

2006.
9 Infra footnote 10.

1. Member of the armed forces of a party to the conflict as well as member of militias or
volunteer corporations forming part of such armed forces.
2. Members of other militias and member of other volunteer corporations, including those
of organized resistance movements, belonging to a Party to the conflict and to the
operating in or outside their own territory, even if this territory is occupied , provided that
such militias or volunteer corporations, including such organized resistance movement
,fulfils the following condition:
a. That of being commanded by a person responsible for his subordinates;
b. That of having a fixed distinctive sign recognizable at a distance ;
c. That of carrying arms openly;
d. That of conducting their operation in accordance with the laws and customs of war.

3. Member of regular armed forces who profess allegiance to a government or an authority

not recognized by the Detaining Power.
4. Persons who accompany the armed forces without actually being members thereof, such
as civilian members of military aircraft crews, war correspondents, supply contractors,
members of labour units or of services responsible for the welfare of the armed forces,
which they accompany, who shall provide them for that purpose with an identity card
similar to the annexed model.
5. Member of crews, including masters, pilots and apprentices, of the merchant marine and
the crews of civil aircraft of the Parties to the conflict, who do not benefit by more
favorable under any other provisions of international law.
6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously
take up arms to resist the invading forces , without having had time to from themselves

into regular armed units, provided they carry arms openly and respect the laws and
customs of war.10
B. The following shall likewise be treated as prisoners of war under the present
Convention:
1. Persons belonging, or having belonged, to the armed forces of the occupied country, if
the occupying Power considers it necessary by reason of such allegiance to intern them,
even though it has originally liberated them while hostilities were going on outside the
territory it occupies, in particular where such persons have made an unsuccessful attempt
to rejoin the armed forces to which they belong and which are engaged in combat, or
where they fail to comply with a summons made to them with a view to internment.
2. The persons belonging to one of the categories enumerated in the present Article, who
have been received by neutral or non-belligerent Powers on their territory and whom
these powers are required to intern under international law, without prejudice to any more
favorable treatment which these powers may choose to give and with the exception of
Articles 8,10, 15, 30, fifth paragraph, 58-67, 92, 126 and , where diplomatic relations
exits between the parties to the conflict and the neutral or non-belligerent power
concerned, those Articles concerning the Protecting Power. Where such diplomatic
relation exist, the Parties to a conflict on whom these persons depends shall be allowed to
perform towards them the functions of a protecting Power as provided in the present
Convention, without prejudice to the functions which these Parties normally exercise in
conformity with diplomatic and consular usage and treaties..

10 Art.4 of Geneva Convention relative to the Treatment of Prisoners of wars , 75

U.N.T.S.135, entered into force oct.21, 1950.

C. This articles shall in no way affect the status of medical personnel and chaplains as
provided for in Articles 33of the present Convention. Article 5 of the convention
prescribes the term for which such persons shall be protected as being prisoners, the
definition of which has been provided under Art.4 provides that convention shall apply to
tie persons referred to in Art.4 from the they fall into the power of the enemy and until
their final release and repatriation. Further it has been provided under this convention as
being prisoner shall be in a position to renounce their rights, weather in part or entirely.

EVOLUTION OF PRISON ADMINISTRATION

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 struggled with the state. In order to fully appreciate the magnitude of the
problem and the parameters relevant to reforms in the context of human rights, it would be
desirable to look at the evolution of prison administration over the years. Until the late 18 th
century, prisons were used as debtors prisons11. They imprisoned debtors who could not pay off
their creditors. Different countries imprisoned debtors; delinquent juvenile, etc jails were mostly
dark, overcrowded and filthy. All types of prisoners were herded together with no separation of
men and women , young and old , convicted and unconvicted, sane and insane.

11 Malik & Raval, law social transformation, ALA, 2nd Edi reprint 2010.

PRISON REFORMS IN INDIA BEFORE INDEPENDENCE12:

Conditions of the prisoners were harsher than animal in India and prisoners were treated with
hatred. There was no uniform code to give punishment. The meaning of the punishment itself
was to crush the prisoner. Jailors were normally cruel persons. But in 1835, some thought arose
for in the hope of prisoner reformation. In 1835, first commission (Lord McCauley Commission)
was appointed, who recommended the abolition of outdoor labour, general introduction of indoor
work, better classification of convicts, etc.

A. Prison Discipline Committee January 1836 :

Due to the effort of Lord McCauley the committee was constituted, which recommended
that a central jail should be constituted , and in these jail such prisoners should be kept
who are undergoing imprisonment for more than one year. These jails should be in
position to keep 1000 prisoners at a time. In every state a Prison Inspector should be
appointed , who can inspect from time to time the administration of the jails in the state.
B. A Commission of Inquiry into Jail Management and Discipline 1864 :This commission made specific recommendation regarding the accommodation,
improvement in diet , clothing, bedding, medical care of the prisoners , and for the
12 http://bprd.nic.in/writeeaddata/linkimages/0534473971-natioanl%20policy%20on
%20prison%20reform%20and%20correctional%20administration%20part%201pdf.

appointment of Medical officers in jails , minimum required space for one prisoners as 54
sq. ft. and 640 cubic ft. , and separation of female and children from adults.
C. Fourth Jail Commission 1888 :Jail Commission made an exhaustive inquiry into all matters connected with jail
administration. It was of the opinion that uniformity could not be achieved without
enactment of a single Prison Act. It also recommended the setting up of jail hospitals.
D. Prison Act of 1894 :Based on t e 1888 Jail Commissions Report , the prisons Act, 1894, was passed and is
still governing, the management and administration of prisons in India. This Act, as it is ,
was based on deterrent principles concerned more with prison management than with the
treatment of prisoners and gave more consideration to prison offences and punishment
than to their effect.
Some important merits of the Act are as :(a) In this Act uniformity was given to all the prisons.
(b) Steps were taken for the classification of the prisoners.
(c) Flogging was stopped and nature of punishment changed.
E. Indian Jail Committee of (1919-20) :An Indian Jail Committee was constituted headed by Sir Alexander Cardio. This
committee studied the jails in the country and abroad and concluded that in Indian Jails,
improvement was only required in the field of food , health and labour, not in any other
field. This committee wrote that. when the prisoners are in jail they should not be only
thought to have stopped the commission of offence in future but, affect then to reform
their character. It is our 2nd principle , which we understood that should be accepted. 13
With the Indian jail Committee 19191-20 in 1919, the Government of India Act was
13 Indian jail committee, 1919-20, p-26

introduced, according to which prison was made the subject of the state , due to which
speed of the reformation of the jail went down and today the position of the jails is
different in every state.
F. JAIL REFORM COMMITTEE, 1946 :A Committee was constituted in the year 1946 for the jails. This committeegave the
suggestions as :
(1) The child offender should be treated differently.
(2) Modern jails should be constructed and
(3) The classification of the offenders should be scientific :
(a) Child offenders,
(b) Adult offenders,
(c) Women offenders,
(d) Casual offenders,
(e) Mentally diseased offenders,
(f) Handicapped offenders.

PRISON REFOMS AFTER INDEPENDENCE

Justice Malimath Committee March 200314

Malimath committee has given suggestions with regards to handcuffing of the accused as follow:
(i)

As a rule handcuffs or other fetters shall not be forced on prisoners convicted or

under-trail- while lodged in a jail anywhere in the country or while transporting or in
transit from one jail to another or from jail to court or back. The Police and the Jail
authorities, on their own, shall have no authority to direct the handcuffing of any

14 http://mha.nic.in/pdfs/criminal_justice_system.pdf.

inmate of the jail in the country or during transport from one jail to another or from
(ii)

jail to court back.

Where the Police or the Jail authorities have well grounded basis for drawing a strong
inference that a particular prisoner is likely to jump jail or break out of the custody
then the said prisoner be produced before the Magistrate concern and a prayer for
permission to handcuff the prisoner be made before the said Magistrate. In rare case
of concrete proof regarding proneness of the prisoner to violence, his tendency to
escape, he being too dangerous/desperate and finding no other particular way of
forbidding escape is available, the Magistrate grant permission to handcuff the
prisoner.

HISTORY OF HUMAN RIGHTS :-

The

earlier rules about standards of behaviors among people dealt with prescribing or

prohibiting conduct that experience proved was likely to lead to conflict. There were great
lawmakers the Roman .Justinian , for one , who published his great Codex of various laws in
the early 6th century who tried to establish a cohesive schemes of rights and duties. The great
religions of the world Judaism, Hinduism, Christianity, Buddhism, Taoism, Islam, and others
have all sought to establish comprehensive , coherent moral codes of conduct based on divine
law. All contain profound ideas on the dignity of the human being, and are concerned with the
duties and obligations of man to his fellow human beings, to nature and indeed to god and the
whole of creation, until the 17th century such attempts to establish a frame work for such rules ,
laws foe such rules , laws and codes , whether in social, legal, secular or theological debate ,

emphasized duties and privileges that arose from peoples status or relationships, rather than
abstract right, philosophically, preceded or underlay those relations or laws 15 .
Then , attention moved from social responsibilities to individuals needs and participation. It was
seen as fundamental to the well-being of society, under the influence of philosophers such as
Grotius, Hobbes and Locke, then , these rights were called natural rights, or the right of man.
These natural or moral rights became part of the political agenda. They spread as the economic
frontiers came down.16
One of the first, and most important, battles was about politics. Could natural rights be handed
over to rulers? People in their natural condition have unlimited freedom. If they choose to be
ruled , they surrender either all, or some at least of this natural right to their king or government
, in exchange for civil society and peace. If they could surrender all, then people could be
subjected to absolute government authority, and be under an absolute duly to obey. If only some
could be surrendered, then the question is what part of those freedoms do we give up? This issue
became a tremendous cause in 17th century England. The protection of the peoples right
(especially the right to political participation, and freedom of religious belief and observation)
against an oppressive government was catch cry of the English revolution of 1640 (which led to
rebel leader Oliver Cromwell heading the government, and the king being executed ). It was also
the catch cry for the rebellion against the civil administration- the Glorious Revolution- of 1688
which saw another king on the throne, but also led to the English in 1689.

15 Human rights in the world by A.H.Robbertson and J.S.Merill(4 th edi.) universal law
publication.
16 Human rights in the world by A.H.Robbertson and J.S.Merills 2005 edi. universal
law publication.

Towards the end of 18th century, according to the philosopher Jhon Locke, it was argued that it
was part of gods natural law that no-one should harm anybody else in their life, health liberty or
possessions. These rights could never be given up. The existence of this natural law also
established the right to do whatever was necessary to protect such rights. 17 This view limited role
of government.
Yet in the terror that soon followed the Revolution, with all its hopes, thousands in justly lost
their lives or suffered greatly in the name of Liberty. The doctrine of human rights that we now
have are directed descendants of this thinking. The disparity in rights protection in practice
reflected the society of the time.
The greatest 20th century statements of natural or human rights can be dated to 1948, Universal
Declaration on Human right. This proceeding a range of international conventions, covenants
declaration and other treaties that have followed the tradition. Many nations have incorporated
rights into their national constitutions-acknowledging that the rights exists, not that they are
created by their laws18.
In 1929, the institute de Droit International at a meeting of the outstanding scholars from many
parts of the world, issued a declaration of the International rights of man which proclaimed that
the judicial conscience of the civilized world demands the recognition for the individuals of
rights prescribed from all infringements on the part of the state.
That it is important to extend to the entire world international recognition of the right of the man.
With the outbreak of the world war II came the conviction of the urgent need to safeguard the
17 Law relating to human rights BY Dr.V.Nirmala(14th edi. 2010) Asia law house .
18 Article on history of University human right by Moira Rayne

political and civil rights of the individuals elsewhere, and to provide for economic and social
security and determination to safeguard such rights. On January 1, 1948 the World Community
declared its common objectives to defend life, liberty, independence and religious freedom and
preservation of human rights and justice in their own land as well as in others land..19

19 Article on human rights of detainees and prisoners: suggestion for prison

reforms by K.D.Gaur. criminal law and criminology.EDI.2002 deep and deep
publication Pvt Ltd.

CHAPTER: 3
THE INTERNATIONAL PERSPECTIVE OF PRISONERS RIGHTS

The rights of prisoners has been a topic of international concern, especially in the light of
treatment of prisoners of war, treatment of prisoners accused of war crimes, etc. the international
instruments relating to prisoners rights have been classified under the heading of Human Rights
In The Administration of Justice: Protection Of Persons Subjected To Detention or
Imprisonment20 under the auspices of the United Nations.
While analyzing the rights recognized and protected by the prisoners in the international arena,
we would be looking at the various international documents related to the said subject, which are
enlisted as follows:

INTERNATIONAL COVENANT IN CIVIL AND POLITICAL RIGHTS21:

The Covenant on Civil and Political Rights was adopted and opened for signature, ratification
and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 and entered
into forces on 23rd March 1976, in accordance with Article 49 of the said Covenant. The said

20 http://www.ohchr.org/english/law/index.htm.Date visisted-31.07.07,19:32hrs.
21 http://www.unhchr.ch/html/menu3/b/a_ccpr.htm.

Covenant is binding on the State Parties and came into force after the Universal Declaration of
Human Rights was adopted by the General Assembly that did not create a binding obligation on
the state parties but was mere moral obligation.
We shall be looking at only those provisions of the Covenant which concur the topic under
research. These provisions are as follows:
Articles 3 states that the States Parties to the present Covenant shall undertake to ensure the
equal rights of men and women to the enjoyment of all obviousness includes prisoners and hence
the state parties to this Covenant are under a binding obligation to ensure the enjoyment of civil
and political rights to prisoners as well.
It is Article 6 which is of utmost importance to us, which states that every human being has the
inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of
his life. In countries which have not abolished the death penalty, sentence of death may be
imposed only for the most serious crimes in accordance with the law in force at the time of the
commission of the crimes in accordance with the law in force at the time of the commission of
the crime and not contrary to the provisions of the present Covenant and to the Convention on
the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out
pursuant to a final judgment rendered by a competent court.
Sentence of death shall not be imposed for crimes committed by persons below eighteen years of
age and shall not be carried out on pregnant women. Further, Articles 7 states that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no
one shall be subjected without his free consent to medical or scientific experimentation. This is
especially applicable to prisoners who are subjected to cruel and inhuman treatment. The most

important provision which is the high point of the Covenant as regards the human rights of the
prisoners is Articles 10(1) which clearly puts the State Parties under an obligation as regards
persons deprived of their liberty to respect the inherent dignity of the human persons and treat
them with humanity. Article 14 states shall that all persons shall be equal before the courts and
tribunals. In the determination of any criminal charges against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law.

GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF

WAR:
The Diplomatic Conference as regards this Convention was held at Geneva from April 21 to
August 12, 1949 for the purpose of revising the Convention concluded at Geneva on July 27,
1929 relative to the treatment of prisoners of War. The provisions of the convention were
application not only during the times of war but also peace. It is stated under Article 2 of the
Convention that although one of the Powers in conflict may not be a party to the present
Convention, the powers who are parties thereto shall remain bound by it in their mutual relations.
They shall furthermore be bound by the convention in relation to the said Power, if the latter
accepts and applies the provisions thereof. To this end the following acts are and shall remain
prohibited any time and in any place whatsoever with respect to the above- mentioned persons:

a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture;

b) Taking of hostages;
c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
d) The passing of sentence and carrying out of execution without previous judgment
pronounced by a regularly constituted court affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.

CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR

DEGRADING TREATMENT OR PUNISHMENT 22(CAT)

The said Convention was adopted and opened for signature, ratification and accession by
General Assembly resolution 39/46 of 10 December 1984 which entered into force on 26 th June
1987, in accordance with Article 27(1) of the Convention.
Some of the important provisions of the Convention which deal with the rights of prisoners are
as follows
Firstly, Article 1 defines torture to mean any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purpose as obtaining from him
or a third person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity.
22http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/a3bd1b
89d20ea373c1257046004c1479$FILE/G05423837.pdf.

Further Article 4 states that each State Party shall ensure that all acts of torture are offences under
its criminal law. The same shall apply to an attempt to commit torture and to an act by any
person which constitute complicity or participation in torture and each State Party shall make
these offences punishable by appropriate penalties which take into account their grave nature.
Article 13 states that each State Party shall ensure that any individual who alleges he has been
subjected to torture in any territory under its jurisdiction has the right to complain to, and to have
his case promptly and impartially examined by, its competent authorities. Article 14 is a
continuation of the aforesaid article and state that upon receipt of such complaint each State
Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an
enforceable right to fair and adequate compensation, including the means for as full
rehabilitation as possible. Further, according to Article 15 the State Party Shall ensure that any
statement which is established to have been made as a result of torture shall not be invoked as
evidence in any proceedings, expert against a person accused of torture as evidence that the
statement was made.
Part II of the Constitution deals with the provision pertaining to the enforcement machinery. It
provides for the constitution of a committee against torture to which the States Parties shall
submit, through the Secretary-General of the United Nations, reports on the measures they have
taken to give effect to their undertaking under this Convention, within one year after the entry
into force of the Convention for the State Party concerned. However, the drawback of the
Convention is that the Committee constituted under it can entertain complaints only if a
declaration has been made by the State Parties recognizing the competence of the committee.

OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE

AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT (OPCAT)

It was adopted on 18 December 2002 at the fifty-seven session of the General Assembly of the
United Nations by resolution A/RES/57/199 and entered into force on 22 nd June 2006. The
Preamble to the protocol, which puts forth its aim states that it was adopted in order to reaffirm
that torture and other cruel, inhuman or degrading treatment or punishment are prohibited and
constitute serious violations of human rights, and being convinced that further measures are
necessary to achieve the purposes of the Convention against Torture and other Cruel , inhuman
or degrading treatment or punishment and to strengthen the protection of persons deprived of
their liberty against torture and other cruel, inhuman or degrading treatment or punishment.
Further, the World Conference on Human Rights had firmly declared that in order to eradicate
torture efforts should first and foremost be concentrated on prevention and called for the
adoption of an optional protocol to the convention, intended to establish a preventive system of
regular visits to places of detention.
Article 11 deals with the functions of the Sub Committee on prevention and states that the
subcommittee on prevention shall visit the places referred to in article 4 and make
recommendations to state parties concerning the protection of persons deprived of their liberty
against torture and other cruel, inhuman or degradation treatment or punishment;

Article 12 makes provisions in order to enable the Subcommittee on prevention to comply with
its mandate as laid down in Article 11, the States Parties undertake:
a) To receive the subcommittee on prevention in their territory and grant it access to the
places of detention as defined in article 4 of the present Protocol;
b) To provide all relevant information the subcommittee on Prevention may request to
evaluate the needs and measures that should be adopted to strengthen the protection of
persons deprived of their liberty against torture and other cruel, inhuman or degrading
treatment or punishment;
c) To encourage and facilities contracts between the Subcommittee on Prevention and the
national prevention mechanisms;

STANDARD

MINIMUM

RULES

FOR

THE

TREATMENT

OF

PRISONERS23

The standard minimum rules for the treatment of prisoners was adopted by the first United
Nations Congress on the Prevention of Crimes and the Treatment of Offenders, held at Geneva
in1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31
July 1957 and 2076 (LXII) of 13 May 1977.

Preliminary Observations
23 http://www.unhchr.ch/html/menu3/b/h_comp34.htm

The following rules are not intended to describes in detail a model system of penal institutions.
They seeks only , on the basis of the general consensus of contemporary thought and the
essential elements of the most adequate system of today, to set out what is generally accepted as
being good principle and practiced in the treatment of prisoners and the management of
institutions.
On the other hand, the rules cover a field in which thought is constantly developing. They are not
intended to preclude experiment and practices, provided these are in harmony with the principles
and seek to further the purpose which derive from the text of the rules as a whole. It will always
be justifiable for the central prison administration to authorize departures from the rules in his
spirit.
The rules do not seek to regulate the management of institution set aside for young persons such
as borstal intuitions or correction schools, but in general part I would be equally applicable in
such institutions.
The category of young prisoners should include at least all young persons who come within the
jurisdiction of juvenile courts. As a rule, such young persons should not be sentenced to
imprisonment.

RULES APPLICABLE TO GENERAL CATEGORY

Basic Principles
The rules shall be applied impartially without discrimination on grounds of race, colour, sex,
language, religion birth or other status. On the other hand, it is necessary to respect the religious
beliefs and moral precepts of the group to which a prisoners belongs.

Maintenance of a Register
In every place where persons are imprisoned there shall be kept a bound registration book with
numbered pages in which shall be entered in respect of each prisoners received:
a) Information concerning his identity;
b) The reason for his commitment and the authority therefore;
c) The day and hour of hour of his admission and release.

No person shall be received in an institution without a valid commitment order of which the
details shall have been previously entered in the register.

Separation of Categories:
The different categories of prisoners shall be kept in separate institution or parts of institution
taking account of their sex, age, criminal record, the legal reason for their detention and the
necessities of their treatment. Thus,

a) Men and women shall so far as possible be detained in separate institutions; in an

institution which receives both men and women the whole of the premises allocated to
women shall be entirely separate;
b) United prisoners shall be kept separate from convicted prisoners;
c) Persons imprisonment for debt and other civil prisoners shall be kept separate from
persons imprisoned by reason of a criminal offence;

Accommodation :Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by
night a cell or room by himself. If for special reasons, such as temporary overcrowding, it
becomes necessary for the central prison administration to make an exception to this rule, it is
not desirable to have two prisoners in a cell or room.
Where dormitories are used, they shall be occupied by prisoners carefully selected as being
suitable to associates with one another in those conditions. There shall be regular supervision by
night in keeping with the nature of the institution.
In all place where prisoners are required to live or work,
a) The windows shall be large enough to enable the prisoners to read or work by natural
light, and shall be so constructed that they can allow the entrance of fresh air whether or
not there is artificial ventilation;
b) Artificial light shall be provided sufficient for the prisoners to read or work without
injury to eyesight.

The sanitary installation shall be adequate to enable every prisoner to comply with the needs of
nature when necessary and in a clean and decent manner. Adequate bathing and shower
installations shall be provided so that every prisoner may be enabled and required to have a bath
or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene
according to season and geographical region, but at least once a week in a temperate climate. All
pans of an institution regularly used by prisoners shall be properly maintained and kept
scrupulously clean all times.

Personal hygiene
Prisoners shall be required to keep their persons clean, and to this end they shall be provided
with such toilet articles as are necessary for health and cleanliness. In order that prisoners may
maintain a good appearance compatible with their self-respect, facilities shall be provided for the
proper care of the hair and beard, and men shall be enabled to shave regularly.

Clothing and Bedding

Every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of
clothing suitable for the climate and adequate to keep him in good health. Such clothing shall be
clean and kept in proper condition. Underclothing shall be changed and washed as often as
necessary for the maintenance of hygiene.
If prisoners are allowed to wear their own clothing, arrangements shall be made on their
administration to the institution to ensure that it shall be clean and fit for use.

Food
Every prisoner shall be provided by the administration at the usual hours with food of nutritional
value adequate for health and strength, of wholesome quality and well prepared and served.
Drinking water shall be available to every prisoner whenever he needs it.

Medical services
At every institution there shall be available the services of at least one qualified medical officer
who should have some knowledge of psychiatry. The medical services should be organized in
close relationship to the general health administration of the community or nation. They shall
include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of
mental abnormality. Sick prisoners who require specialist treatment shall be treatment shall be
transferred to specialized institutions or to civil hospitals.
In womens institutions there shall be special accommodation for all necessary prenatal and postnatal care and treatment. Arrangement shall be made wherever practicable for children to be torn
in a hospital outside the institution. The medical officer shall see and examine every prisoners as
soon as possible after his admission and thereafter as necessary, with a view particularly to the
discovery of physical or mental illness and the taking of all necessary measures; the segregation
of prisoners suspected of infectious or contagious conditions; the noting of physical or mental

defects which might hamper rehabilitation, and the determination of the physical capacity of
every prisoner for work.

Discipline and punishment

Discipline and order shall be maintained with firmness, but with no more restriction that is
necessary for safe custody and well-ordered community life. No prisoner shall be employed, in
the service of the institution, in any disciplinary capacity. This rule shall not, however, impede
the proper functioning of systems based on self-government, under which specified social,
educational or sports activities or responsibilities are entrusted, under supervision, to prisoners
who are formed into groups for the purpose of treatment.

Information to and complaints by prisoners

Every prisoners on admission shall be provided with written information about the regulations
governing the treatment of prisoners of his category, the disciplinary requirements of the
institution, the authorized methods of seeking information and making complaints, and all such
other matters as are necessary to enable him to understand both his rights and his obligations and
to adapt himself to the life of the institution.

Contract with the outside world

Prisoners shall be allowed under necessary supervision to communicate with their family and
reputable friends at regular intervals, both by correspondence and by receiving visits. Prisoners
who are foreign nationals shall be allowed reasonable facilities to communication with the
diplomatic and consular representatives of the state to which they belong.

Books
Every institution shall have a library for the use of all prisoners, adequately stocked with both
recreational and instructional books, and prisoners shall be encouraged to make full use of it.

Religion
So far as practicable, every prisoner shall be allowed to satisfy the needs of his religious life by
attending the services provided in the institution and having in his possession the books of
religious observance and instruction of his denomination.

Notification
Upon the death or serious illness of, or serious to a prisoner, or his removal to an institution for
the treatment of mental affections, the director shall at once inform the spouse, if the prisoner is
married or the nearest relative and shall in any event inform any other person previously
designated by the prisoner. A prisoner shall be informed at once of the death or serious illness of

any near relative. Every prisoner shall have right to inform at once his family of his
imprisonment of his transfer to another institution.

INSANE AND MENTALLY ABNORMAL PRISONERS

Persons who are found to be insane shall not detained in prisons and arrangements
shall be made to remove them to mental institutions as soon as possible. Prisoners who suffer
from other mental diseases or abnormalities shall be observed and treated in specialized
institutions under medical management. During their stay in a prison, such prisoners shall be
placed under the special supervision of a medical officer. It is desirable that steps should be
taken, by arrangement with the appropriate agencies, to ensure if necessary the continuation of
psychiatric treatment after release and the provision of social-psychiatric after-care.

PRISONER UNDER ARREST OR AWAITING TRIAL

Persons arrested or imprisoned by reason of a criminal charge against them, who are
detained either in police custody or in prison custody but have not yet been tried and sentenced,
will be referred to as untried prisoners, hereinafter in these rules. Unconvicted prisoners are
presumed to be innocent and shall be treated as such. These prisoners shall benefit by a special
regime which is described in the following rules in its essential requirement only.

Untried prisoners shall be kept separate from convicted prisoners. They shall sleep singly in
separate rooms, with the reservation of different local custom in respect of the climate.
Within the limits compatible with the good order of the institution, untried prisoners may, if they
so desire, have their food procured at their own expenses from the outside. Otherwise, the
administration shall provide their food.

An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable. If he
wears prisoner dress, it shall be different from that supplied to convicted prisoners.

An untried prisoner shall always be offered opportunity to work, but shall not be required to
work. If he chooses to work, he shall be paid for it.

An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there
is reasonable ground for his application and he is able to pay any expenses incurred.

For the purpose of his defence, an untried prisoner shall be allowed to apply for free legal aid
where such aid is available, and to receive visits from his legal adviser with a view to his defence
and to prepare and hand to him confidential instructions. For these purposes, he shall if he so
desires be supplied with writing material.

CIVIL PRISONERS
In countries where the law permits imprisonment for debt, or by order of a court
under any other non criminal process, persons so imprisoned shall not be subjected to any greater
restriction or severity than is necessary to ensure safe custody and good order. Their treatment
shall be not less favorable than that of untried prisoners, with the observation, however, that they
may possibly be required to work.

PRISONERS ARRESTED OR DETAINED WITHOUT CHARGE

Without prejudice to the provisions of article 9 of the International covenant on Civil
and Political Rights, persons arrested or imprisoned without charge shall be accorded the same
protection as that accorded hereunder. Relevant provisions shall likewise be applicable where
their application may be conducive to the benefit of this special group of persons in custody,
provided that no measures shall be taken implying that re-education or rehabilitation is in any
way appropriate to persons not convicted of any criminal offence.

CHAPTER: 4
RIGHTS OF PRISONERS: ROLE OF JUDICIARY

In the preceding chapter we have looked into the constitutional and statutory basis for the
recognition and development of the jurisprudence of prisoners rights and the human rights of the
prisoners. In consonance with the chapter a need is felt to look into its development as
understood in the present day.
The Supreme Court has from time to time, through its decisions upheld the
rights as well as human rights of prisoners in India. In this chapter we shall be analyzing how
these relations relating to a myriad of subjects ranging from the fundamental rights to life of the
prisoners to the recent most decision of the Supreme Court relating to the right of the children of
the under trials to development.24
The roots of our Constitution lie deep in the finer spiritual sources of social justice,
beyond the melting pot of bad politicking, feudal crudities and sublimated sadism, sustaining
itself by profound faith in Man and his latent divinity and the confidence that you can
accomplish by kindness what you cannot do by force and so it is that the Prisons Act provision
and the Jail Manual itself must be revised to reflect this deeper meaning in the behavioral norms,
correctional attitudes and humane orientation for the prison staff and prisoners alike. We cannot
become misanthropes and abandon values, scared by the off chance of some stray desperate
character. Then amputation of limbs of unn.ly suspects may be surer security measure and
corporal punishment may have a field day after a long holiday. The essence of my opinion in
both these cases is the infusion of the higher consciousness of the constitution into the stones of
law which make eh prison houses.

24 R D Upadhyaya v. State of A P and others, AIR 2006 SC 1946

The constitution as assigned the significant role to the judiciary in our legal and
constitutional system. It has been playing its role as a sentinel of human rights, not to speak of
the constitutional and legal rights. The concept of Public Interest Litigation through the process
of liberalization of the concept of locus standi has played a humanizing role in the sphere of
custodial violence. This is also evident from the second periodic report of the UNHCR, which
has stated that,
The supreme court of India and the various High Courts of the individual states ensured the
effective implementation of the human rights through a liberalized review of administrative
action. Such liberalization has led to the growth of Public Interest Litigation and seizure of the
courts jurisdiction in such matter even on the basis of post-card or telegrams received from the
individuals or of stories or reports published in magazines or news papers and the provisions of
compulsory legal aid to the needy.

In,
Shantisar Builders v/s Narayan Khimal Totame25
In this case, the SC has ruled that right to life is guaranteed in any civilized society. That would
take within its sweep the Right to food, right to clothing, the right to decent environment and a
reasonable accommodation to live in.

In,
25 AIR 1990 SC 630

Charles Sobraj v. Superitendent, Central Jail, Tihar26

The apex court has observed imprisonment does not spell farewell to fundamental rights
although by a realistic reappraisal, court will refuse to recognize the full panoply or Part III
enjoyed by the citizens. Art. 21, read with Art. 19(1) (d) and (5), is capable of wider
application than the imperial mischief which gave it birth and must draw its meaning from the
evolving standards of decency and dignity that make the progress of a mature society.

In,
Kishor Singhs Case27
The court held that, keeping of petitioners in separate solitary rooms for a long period from eight
months to eleven months is barbarous on the basis of what this court has decided in Sunil
Batra28.
The court also held that the solitary confinement could be imposed in rarest of
rare cases and with strict adherence to the procedural safeguards contained in the decision of the
court relating to the punishment of prisoners. The court warned that, the violation of Art. 21 as
interpreted by this court in its recent decisions, if repeated, would be visited with serious
consequences, because, human dignity is a dear value of our constitution not to be bartered away
for mere apprehensions entertained by the jail officials.
26 1978 (4SCC) 104
27 Kishor Singh Ravindra Dev v. State of Rajasthan, AIR 1981 SC 625
28 Supra Note. 20

Again in the case of

Charles Shobraj v. Superintendent, central Jail, Tihar29
In this case a convict, who was kept in a high security ward demanded that he should have netter
companions in jail and that he should be removed to a ward where there is more relaxation. J.
Krishna Iyer, held that, fair procedure is the soul of Art. 21 and the reasonable restriction is the
essence of articles 14, 19 and 21. There must be co-relation between deprivation of freedom and
the legitimate functions of a correctional system. But when an inmate is cruelty in a manner
which supports no such relevant purpose, the restriction becomes unreasonable and arbitrary.
These are some of the important cases on the rights of prisoners, in which
court has showed much adherence to the individual human dignity and human rights of the
prisoners.
The other important cases on the rights of the prisoners delivered by the
Supreme Court Of India be stated as follows -

(A) Abdul Rehman Antuley v. R S Nayak30

In this case, the Supreme Court of India dealt with an important problem relating to the
right to speedy trial. In this court held that, right to speedy trial. In this court held that,
29 1978 (4SCC) 104
30 AIR 1992 SC 1701

right to speedy trial is the part and parcel of the Art. 21 of the Constitution Of India.
Because, it stated that, the justice delayed is justice denied.

(B) Motilal Saraf v. State of Jammu and Kashmir and Another31

In this recent case, the Supreme Court has re iterated the earlier view taken by it in case
of A R Antuley v. R S Nayak, stating that, right to speedy trial is a part and parcel of the
right to life and personal liberty under Article 21 of the Indian Constitution.
(C) M H Hoskot v. State Of Maharashtra
In this case, the Supreme Court has held that, the state should provide the free legal aid
to the prisoner who is an indigent or other disabled from securing legal assistance where
the ends of the justice calls for such service.

(D) Dharambeer v. State Of Uttar Pradesh32

In this case, the Supreme Court has directed that, a convict who was under the rigorous
imprisonment could compel the authorities to pay the wages for the work done by him
during such detention in prison.
(E) Munshi Singh Gautam v. State of M P33
In this case, the Supreme Court has held that, the state should provide the free legal aid
to the prisoner who is an indigent or other disabled from securing legal assistance where
the ends of justice calls for such service.
(F) Babu Singh v. State of UP
31 2007(2) SCJ 737
32 AIR 1979 SC 1595
33 AIR 2005 SC 402

In this case, the Supreme Court of India Has dealt with the important right of the accused
i.e. right to bail. In this case, the court has held that, the right to bail is the part and parcel
of the right to life and personal liberty under Art. 21 of the Indian Constitution, unless
and until there is strong and justifiable reason behind non allowing him on bail.
(G) Hitendra Vishnu Thakur v. State Of Maharashtra34
In this case the court has held that, Sec.167 (2) of the code of Criminal procedure, 1973
read with sec. 20 (4) (B) of TADA, create an indefeasible right in an accused to seek bail
on default of investigating agency in completing the investigation within the prescribed
period of 180 days.
Apart from these cases certain special topical cases I am going to discuss in this
chapter.
Writ Of habeas Corpus
In the dynamic role of judicial remedies, after the Sunil Batras35 case,
imparts to the Habeas Corpus writ a versatile vitality and operational utility that makes
the healing presence of the law live up to its reputation as bastion of liberty even within
the secrecy of the hidden cell. Blackstone called it the great and efficacious writ in all
manner of illegal confinement and Lord Denman proclaimed in 1839 that it had been
for ages effectual to an extent never known in any other country. So long as Batra
remains good law, judicial policing of Bastille practices will broaden to embrace the
wider range of prison vices.

Right to Life
34 1994(4) SCC 602
35 Sunil Batra v. Delhi Administration, AIR 1978 SC 1675

What is life in Article 21 In Kharak Singhs case36 , Subha Rao, J. quoted

Field, j. in Munn v. Illinois37 , to emphasize the quality of life covered by Article 21:
Something 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 malnutrition of the body by the amputation of an arm or leg, or the putting
out of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world. A dynamic meaning must attach to life and liberty.
Administration of prison institutions and maintenance of discipline in
jails is subject to the Principle of Natural justice. The prison authorities should take action
and issue order only with the due compliance of the principles of Natural Justice. 38 Time
and again, the Indian

Judiciary has recognized the natural rights of prisoners as

inalienable right and compelled the government authority to act and practice accordingly.
Right when there deprivation of liberty, otherwise than according to law 39
The personal liberty of a citizen is guaranteed under the scheme of
Article20, 21 and 22 of the Constitution of India. However, a person may be deprived of
his liberty only- according to procedure established by law. It follows, therefore, that
those who will call upon to deprive other persons of their personal liberty in the discharge
of what they conceive to be their duty, must strictly and scrupulously observe and follows

36 Kharak Singh v. State Of U.P., 1964(1) SCR 232

37 (1877)94, US 113
38 Keemat Singh v. I G Prison, Chandigarh, 1994, Cr. LJ 1884; Ramaswamy v. State
Govt. Of A P , 1997 Cr.W. 3256 and Sarjero Pole v. State of Maharashtra, 1999 CrLJ
1433
39 Durga Das Basu, Human Rights in Constitutional Law, Second Edition, 2003

the rules of law40. If the aforesaid principle is not observed, the court would set the
prisoner at liberty.41 Such a principle would apply in case of punitive as well preventive
detention.42
Solitary Confinement
Yahya Ali, j., in 1947, long before our constitutional charter came into being,
had expressed himself strongly against solitary confinement and we feel more strongly
about it and against it. Our humane order must reject solitary confinement as
horrendous. The learned Judge observed:
Solitary confinement should not be ordered unless there are special
features appearing in the evidence such as extreme violence or brutality in the
commission of the offence. The only reason given by the Magistrate is that the sancity of
home life has become to him (the appellant) a mere mockery and the desire to take what
he wants regardless of ownership is not in him. This can be said of every person
convicted under Section 379. Penal code and I do no: consider that to be a circumstance
justifying the passing of an order of solitary confinement. The direction regarding solitary
confinement will be deleted.
The Law Commission of India in its 42nd Report took the view that
solitary confinement was out of tune with modern thinking and should not find a place
in the Penal Code as a punishment to be ordered by any criminal court.
Bar Fetters violate right to Life

40 Ram Narain v. State Of Delhi 1953 SCR 652

41 ld
42 Kishori Mohan Bera v. State of West Bengal, AIR 1972 SC 1749

The SC, while dealing with the issue of Bar- Fetters in the case of Charles Shobraj43
stated tie key jurisdictional preconditions to using bar fetters. These are as follows:
i.
Absolute necessity for fetters;
ii.
Special reasons why no other alternatives but fetters will alone secure custodial
iii.
iv.

assurance;
Record of those reasons contemporaneously in extensor;
Such record should not merely be full but he documented both in journal of the

v.
vi.
vii.

Superintendent and the history ticket of prisoner.

The basic condition of dangerousness must be well-grounded and recorded;
All these are conditions precedent to irons save in a great emergency;
Before preventive or punitive irons natural justice in its minimal form shall be

viii.
ix.

compiled with (both audi alteram and the nemo judex rules).
The fetters shall be removed at the earliest opportunity.
There shall be a daily review of the absolute need for the fetters, none being easily

x.

conceivable for nocturnal manacles;

If it is found that the fetters must continue beyond a day it shall be held illegal
unless an outside agency like the District Magistrate or Sessions Judge, on
materials placed, directs its continuance.
It was finally held in Charles Shobraj case44 that bar fetters are
violative in Article 21, 19, 14. It was further stated that bar fetters are a barbarity
generally and, like whipping, must vanish. Civilized consciousness is hostile to
torture within the walled campus.
A previous hearing, minimal may be, shall be afforded to the victims. In
exceptional cases, the hearing may be soon after. The rule in Gills Case and
Maneka Gandhis case45 gives the guidelines.

43 Supra.
44 Supra.
45 AIR 1978 SC 597

The grounds for fetters shall be given to the victim. And when the
decision to fetter is made, the reasons shall be recorded in the journal and in the
history ticket of the prisoner in the State language. If he is a stranger to that
language it shall be communicated to him, as far as possible, in his language. This
applies to cases as much of prison punishment as of safety fetters.
No fetters shall continue beyond day time as nocturnal fetters on locked in
detenus are ordinarily uncalled for, viewed from the considerations of safety.
Handcuffing is capricious
It was held in the case of Sunil Gupta v. State Of Madhya Pradesh46, where the
petitioners were arrested, imprisoned and handcuffed with malicious or
mischievous intention, that the act of handcuffing is sadistic, capricious, despotic
and had a demoralizing effect on the human rights movement in India.
Payment of compensation for custodial death due to negligence of jail
authorities: the Court awarded compensation of Rs. 20,000/- to the wife and
mother of the deceased apart from remedy of suit for damages in realm of tort,
where the deceased had been allowed to be examined for ill health but therafter no
medical treatment was given.47
In the case of Smt. Prabha Dutt v. Union Of India (UOI) and Ors.48
The petitioner wanted to interview prisoners who were given death sentence but
was denied permission. It was held that freedom of speech and expression
includes freedom of press-is not an absolute right and the Press is entitled to
exercise its freedom of speech and expression by publishing a matter which does

46 1990 (3) SCC 119

47 Bheemamma v. Station House Officer, Hyderabad, 2002 CriLJ 694 (AP)
48 AIR 1982 SC 6

not invade the rights of other citizens and which does not violate the sovereignity
and integrity of India, the security of the State, public order, decency and morality
and that there was no valid reason to refuse to grant permission.
In Prem Shankar Shukla v. Delhi Administration49,
This Court held that handcuffing is prima facie inhuman, unreasonable, arbitrary
and as such repugnant to Article 21 of the Constitution of India. To prevent the
escape of an under trial is, no doubt, in public interest, but to bind a man hand-and
foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand
him for hours in the Courts is to torture him, defile his dignity, vulgarize society
and fouls the soul of our constitutional culture.
Compensation to a victim of police torture
In State of Maharashtra v. Ravi Kant Patil 50 , it was held, that
handcuffing and parading of an under trial prisoner was violative of Article 21 of
the Constitution. The state and not the police were asked to pay compensation to
the victim. Although, torture is not expressly countermanded by the Constitution,
Art. 21 clearly provides protection against it.

49 AIR 1980 SC 1535

50 1991 (2) SCC 373