From times immemorial, crime has been a baffling problem hitting human civilizations, thereby making crimeless society a myth. No one is born criminal, infact a criminal comes from nowhere but the ailing society. To curb the criminal traits of an offender is the very motive behind the establishment of prisons. In the modern criminal justice system, the concept of prisoners’ rights has changed entirely shifting from retributive to reformative approach. Hon’ble judiciary has also recognized a long list of rights of prisoners which all authorities are bound to follow. But, even today according to the NCRB records, Indian prisons are overcrowded with an occupancy ratio of 14% more than the capacity of prisons. Therefore, the author through this paper analyses and understands in depth the origin, evolution and developments of the evolving jurisprudence of the rights of prisoners and the concept of prisons. It aims to trace the evolution of the cruel and unusual punishments and look at multiple forms it has adopted over time and also look at the issue of prisoner’s rights from a right-based perspective.
The criminal justice system of India used to preach deterrent measures during the pre-independence era, where, most of the time, the intention behind detaining prisoners was to obstruct the struggle for Independence. Per contra, in this post-independence era, when human rights are treated as basic inalienable rights, even the prisons have undergone various reform movements.
Historically, imprisonment was based on punishing those who committed a crime against society, by inflicting suffering of the body similar to the pound of flesh depicted within Shakespeare’s Merchant of Venice; In contrast to this concept, today’s imprisonment is no longer simply intended as an acute form of corporal punishments, but a method by which to work on a person’s mind as well as his body, through 3 distinct areas – which include Punishment, Deterrence and Rehabilitation. These three unique areas, when interlinked into a single process are intended to allow society to remove criminals from a position where they may continue their criminal behaviour, place them into an institution that satisfies the masses who desire some form of retribution, persuade other would be criminals that such activities are not beneficial, and in time sculpt them into productive and law abiding citizens through positive psychological conditioning who may later be re-integration into society.
The trend has shifted from deterrent to more reformative measures of treating the prisoners. But, even after so many revolutions and reformations, there are many lacunae existing in the system that are hampering the prison goals recognized, by judiciary and various statutes.
- To understand the effectiveness of the prison reforms and its implementation in India.
- To analyse prisoner’s rights in India in the context of the International Human Rights standards for prisoners’.
- The resettlement of the criminal offenders after custody.
The research methodology adopted in preparing this dissertation is primarily doctrinal in nature.
The prisons are seen as reformative institutions. The judiciary has also been playing a vital role in protecting prisoners from the dehumanizing conditions. The entire jurisprudence has changed and therefore, the present paper seeks to analyze the effectiveness of the prison reforms. In furtherance, recommendations are made for making the prison system more efficacious.
Human Rights- A Touchstone of Development
Oftentimes, when we speak of human rights, we talk about only civil and political rights; there are quite a few human rights which are respected and protected within the grid of criminal jurisprudence. In India, human rights are guaranteed and shielded by the Constitution itself. The advantage of including these rights in the organic law of the country is that they cannot be altered or abrogated except by constitutional amendments, which is not an easy task to go with in India. Conspicuously, the dignity of the individual being a crux and the aim of a welfare state through human development being rudimentary to governance, the actuality of constitutional governance is prominent on human rights, and that is where our constitutional philosophy lies.
Article 28 of the Universal declaration of Human Rights, 1948, recognizes that “everyone is entitled to a social and international order in which the right and freedoms set forth in this declaration can be fully realized.” Closely following this, Article 38 of the Indian Constitution requires the state to “Strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” This indeed is the ultimate objective of the whole part IV of the Indian Constitution. The right to development has now come to be recognized as inalienable human right in which all rights and fundamental freedoms can be realized under Article 1(1) of the Declaration on the Right to Development U.N. General Assembly Resolution. It is also recognized that human person is the central subject of development as per Article 2(1), Declaration on the Right to Development U.N. General Assembly Resolution.
The right to development in India is grossly derailed by the astonishing nature of the development problems the country faces. At the root of these problems is poverty, illiteracy, overpopulation which forms a vicious circle each contributing to the other. Most of the prison inmates are males who have little or no employable skills. They are also frequently school dropouts who have difficulties with reading and writing skills, poor self-concepts and negative attitudes toward education. Effective rehabilitation and development Programs facilitate prisoners with their social skills, artistic development and techniques and strategies to help them deal with their emotions. In addition, these programs emphasize academic, vocational and social education. The inmates who participate in these programs do so because they see clear opportunities to improve their capabilities for employment after being released. Program success or failure is hampered, however, by the values and attitudes of those in the authority position, overcrowded prison population conditions and inadequate funding for teaching personnel, supplies and materials. Thus, efforts in this direction would help stimulate development which will go a long way to help the prisoner rehabilitation process.
Human Rights of Prisoners- Indian Framework
The concept of human rights is historically the flower of European plant. They include all fundamental freedoms and are based on mankind’s demand of life in which the inherent dignity and the worth of each human being will receive respect and protection. In India, the operation of Article 14, 19 & 21of the Indian Constitution may be curtailed for a prisoner but not puffed altogether. For instance, public address by a prisoner may be put down but talking to fellow prisoners cannot. Even a person under death sentence has human rights which are non-negotiable and even a dangerous prisoner, standing trial, has basic liberties which cannot be bartered away. The fundamental rights which also include basic human rights continue to be available to a prisoner and these rights cannot be defeated by pleading the old and archaic defence of immunity in respect of sovereign acts which have been rejected several times by the Apex court.The right of prisoners includes-
Solitary Confinement of Prisoners
The Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 regard punitive solitude too harsh and the legislature cannot be intended to permit preventive solitary confinement even from the restrictions of Sec. 73 and 74 of IPC. Confinement inside a prison does not necessarily import cellular isolation-segregation of one person alone in a single cell is solitary confinement. That is a separate punishment which the court alone can impose. It would be a subversion of this statutory provision of the Penal code.
Right to Legal Defence: Legal Aid to Prisoners
It is one of the basic rights of the arrested person contemplated under Art. 22 (1) of the Constitution that proclaims that an arrested person cannot be denied the right to consult and be defended by a legal practitioner of his choice. Section 303 of the Code of Criminal Procedure, 1973 also provides for representation by a pleader of one’s choice to an accused charged of an offence. Furthermore, Article 39A is an interpretative tool for Article 21 of the Constitution. Thus, keeping in view, the constitutional obligations, the Parliament in 1987 enacted the Legal Service Authorities Act to provide for free legal services to the weaker sections of the society.
Protection against Double Jeopardy
Article 20 (2) embodies the common law rule of nemo debt visvexaria i.e. no man should be vexed twice for the same offence. If a man is prosecuted again for the same offence for which he has already been prosecuted, he can take complete defence for his former conviction. In the case of Union Carbide Corporation v. Union of India,the object of this provision was thrown light upon, which said that the provision is to avoid the harassment to a person by successive criminal proceedings when only one crime has been committed.
Right Against Ex Post Facto Operation of Law
Article 20 (1) of the Constitution prohibits the State to give retrospective operation of criminal law. In other words, a person cannot be punished for a crime more than what was prescribed at the time of the commission of the offence. The operation of law will be applicable prospectively only i.e. from the date law was enacted.
Right to Speedy Trial
Speedy trial is the essence of criminal justice and there cannot be any doubt that delays in trial by itself constitutes denial of justice. The broad interpretation given to Article 21 in the case of Maneka-Gandhi v. Union of India included it within its purview. Further, Article 3 of the European Convention on Human Rights provides that everyone arrested or detained shall be entitled to trial within a reasonable time or to be released pending trial. So a procedure which does not ensure a reasonably quick trial cannot be regarded as reasonable, fair and just and it falls within the ambit and scope of Article 21. In addition, Right to speedy trial is a facet of fair procedure guaranteed in Article 21 of the Constitution. To entertain the present matter it would be pertinent to sit back in the time machine, for apt recapitulation. In the case of Kartar Singh v. State of Punjab, the Hon’ble SC held that speedy trial is a component of personal liberty. Also, the procedural law becomes void, if the trial is not conducted expeditiously, thus violating Article 21 as was held in Hussainara Khatoon v. Home Secretary, State of Bihar. In A.R. Antulay v. R.S. Nayak, a constitution bench directed completion of the trial within two years in cases relating to offences punishable up to 7 years, and for beyond seven years, within a period of three years. If the prosecution fails to produce evidence before the expiry of the outer limit, the prosecution case stands closed and the court shall proceed to the next stage of the trial and dispose it of in accordance with law. The following view was reiterated per majority even in the case of Raj Dev Sharma II v. Bihar.
NARCO Analysis/ Polygraph Test/ Brain Mapping
As the NARCO analysis test made individual semiconscious state where he has no control over his mind or thinking and they are unable to imagine anything. It has been proved that administration of such drug may suppress the power of thinking and reasoning of person subjected. This includes interference of nervous system of individual subjected for the test and his brain has no control over his own activity. It shows that the administration of such drugs in the body of a suspected person leads playing with the life and mind of such person. Thus the test raises fundamental issues such as right to life and liberty, Human Rights and privilege against self-incrimination. The apex court of India has also said in its leading judgement that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise.
Prison Reforms and Rehabilitation of Prisoners
Without any scintilla of doubt the condition of prisons has improved, but still much remains to be done in the direction of prison reforms for humane treatment of prisoners. In pursuance to the directions given by the Hon’ble Supreme Court in a case of Ramamurthy v. State of Karnataka, 1996, the Government of India has constituted All India Model Prison Manual Committee in November, 2000 under the chairmanship of Director General of BPRD to prepare a Model Prison Manual for the Superintendence and Management of Prisons in India in order to maintain uniformity in the working of prisons throughout the country. This manual has been circulated to all States/UTs for adoption after the acceptance by Government of India in January, 2004. It would not be out of place to mention here that the draft national policy on prisons as proposed by the All India Committee on Jail Reforms which is enumerated in the preceding account was given due consideration by this committee while preparing the Model Prison Manual under reference. But still there exists many lacunas in the system, which needs to be checked sternly:
- Overcrowding in prisons is one of the reasons for the unhygienic conditions prevailing in prisons. When the Supreme Court in a memorable judgement on the case commonly referred to as the Common Cause case, gave detailed directions regarding the release of undertrials on bail, NHRC in 1999 addressed all the State IGs of Prisons to take measures in consultation with their High Courts and State Legal Aid Authorities. The Commission also requested the Chief Justices of all High Courts to issue necessary directions to the magistrates and Sessions Judges, which was reiterated in 2003. Timely medical facilities should be provided to prisoners.
- Skill Enhancement and Capacity Building conserves the energies of the prisoners, who are behind bars for 24 hours.. The educational programmes could be upgraded for both male and female prisoners. Student prisoners may be encouraged to continue their studies and to take the examinations. Vocational training should be enhanced by imparting computer skills, horticulture, agriculture etc. The heath care system of jails should be improved. Regular meditation and yoga may be conducted on a regular basis for the benefit of all prisoners. Our prison environments are unnatural and inhuman. Along with other aspects of prison life, this leads to serious psychological disorders and even insanity. The conditions, in fact, mature petty thieves into hardened criminals. Furthermore, there is no internal mechanism to check the functioning of the jails today, which remain oppressive and cruel. Suggestions like employing jail staff of high character or the strict implementation of the jail manual do not work. One section that can doggedly keep a close watch on the prisoners’ plight and make efforts to right the wrongs is the prisoners themselves. They must have the right to assemble and organize into Panchayat. Their representatives must be involved in decisions regarding food and maintenance. The supervision of the administration by the prisoners can be effective only when the rights of prisoners are spelt out. What needs urgent attention and action is the question of bias in the operation of our police, judiciary and judicial custody against the underprivileged and poor. Notwithstanding any amount of prison reform, this bias will continue as long as there is gross inequality and discrimination.
Conclusion & Suggestions
Of the many reforms required for effective functioning of the Indian law and justice system, prison reforms are an important part. Unless measures are initiated to bring the Indian prison management in sync with the times, the law and justice system will never be able to work optimally. The various issues requiring urgent attention include the physical structure of prisons, conditions and treatment of prisoners, training and re-orientation of prison personnel, modernization of prisons, and better correctional administration and management.
An important problem relating to over-crowding of prisons can be tackled by reducing the population of under-trial prisoners by speedier trials in special fast-track courts, LokAdalats, special courts and via video conferencing. However, it should be ensured that the prisoners should not be forced to plead guilty in such fast-track courts in the hope of getting a lesser sentence.
Going by the reformative theory of deviance, the confinement of offenders in prison is meant to reform and rehabilitate them as useful citizens rather than penalizing them even after marked positive changes are noticed in them. Hence, the release of lifers and hardened criminals before their stipulated terms should be given serious thought.
From time to time the Hon’ble SC addresses itself to the plight of under trials and has issued directives to lower courts for the speedy disposition of cases against those accused of minor charges, and yet these cases drag on. In its annual report the NHRC has made specific recommendations for the re-organisation of the criminal justice system. The lack of an effective system of legal aid is also a cause of serious concern. Most states do not even spend the amount budgeted under this head. The entire bail system too is needed to be streamlined.
Manpower shortage has been another bane of the Indian prison system which needs to be beefed up for better prison management and security. Apart from reinforcing manpower, prison officials of all ranks also need to be given special training and orientation for further improving prison security and making Indian prisons better places, yoked to the cause of reforming and rehabilitating deviant members of the society. Women and juvenile offenders definitely need better and more sensitive treatment than they get currently.
 1st Semester, LL.M. (Intellectual Property Rights),Gujarat National Law University.
 Louis N. Robinson, Contradictory purposes in prisons, 37 Journal of Criminal Law and Criminology 449, 449-457 (1947).
 Shivani Tomar, The Psychological Effects of Incarceration of Inmate: Can We Promote Positive Emotion in Inmates, Medind (Sept. 21, 2018), http://medind.nic.in/daa/t13/i1/daat13i1p66.pdf.
 State of Maharashtra v. Pandurang, AIR 1966 SC 424.
 State of Andhra Pradesh v. ChallaRamkrishna Reddy, AIR 2000 SC 2083.
 Madhav H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548.
 Union Carbide Corporation v. Union of India AIR 1992 SC 248.
 Maneka-Gandhi v. Union of India AIR 1978 SC 597.
 Kartar Singh v. State of Punjab 1994 SCC (3) 569.
 HussainaraKhatoon v. Home Secretary, State of Bihar 1979 SCR (3) 552.
 A.R. Antulay v. R.S. Nayak 1988 SCR supl. (1) 1.
 Raj Dev Sharma II v. Bihar 1999 (7) SCC 604.
 Smt. Selvi v. State of Karnataka, (2010) 3 Supreme 558.
 Ramamurthy v. State of Karnataka Writ Petition No. 30059 of 2015.