Human Rights and Prisoner’s Rights

M Sharmilee,[1] Harshita JD[2] &Philip Jonathan P[3]


The basic fact to remember about human rights is that they are not the gift or bounty of any political sovereign through legislation or any edict, but are rights inherent in human existence.

The purpose of any law dealing with these rights is merely to recognize them, to regulate their exercise and to provide for their enforcement, and related matters. Inviolability of some basic rights in a civilized society is based on this premise.

Human rights are considered to be universal, indivisible and interdependent.‘Human rights’ in practice have been defined to include all aspects of dignified human existence which make every human being an equal member of the human family. Human dignity is the essence of human rights. It is the wide understanding of this aspect and appreciation of the range of dignity of the individual which defines the true scope of human rights.

The paper aims to analyse the human rights of the prisoners at the conjecture of the rights of prisoners and human rights.

Protection of Human Rights in India

Protection of the dignity of an individual is essential for harmony in the society, as its violation can have grave impact on individual in particular and on society in general.

Each individual is entitled to some rights which are inherent to human existence. Such rights should not be violated on the grounds of gender, race, caste, ethnicity, religion etc. and these are called human rights.

Human rights are also known as basic rights, fundamental rights, natural rights or inherent rights. The concept of human right is not a new phenomenon, ‘Human Rights’ is a twentieth century term but its notion is as old as humanity. It has gone through various stages of development and has taken long time to become the concept of present day. These rights had place in all ancient societies though referred by different names, it includes civil rights, liberties and social cultural and economic rights. Also, these rights are essential for all individual as these are consonant with the freedom and dignity and ultimately contribute to social welfare.

Issues and Challenges Faced by Prisoners

There is a direct relationship and inter dependence between policing and prisoner rights. Police is one of the means by which state seeks to meet its obligations to protect ‘Fundamental Human Rights’- right to life, liberty and security of persons, right to fair trial and equal protection of law. Thoughtless and unlawful policing on the other hand can only result in suppression of those ‘Prisoner’s Rights’. It is often witnessed as paradox that Prisoner’s rights are protected by law and are often at risk at the hands of law enforcers.

Misuse of Power of Arrest

The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other

Weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively and of simply deciding what is wanted and where to put the weight and the emphasis of deciding what comes first- the criminal or society, the law violator or the law abider?

Meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society’s rights, and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered.

Mr. Justice Cardozo observed:

The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Adams case (People v. Adams)[4]strikes a balance between opposing interest. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass.”

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Custodial Crime

Any act on the part of the police which violates the basic dignity and liberty of an individual guaranteed by our Constitution invokes scathing criticism from conscious and alert citizens.

The Media also has become resonant with voices of protest whenever there is any encroachment on individual liberty and violation of basic human dignity. Reasons for such custodial crime are many.

Technical Police Custody

Not all cases of death and injuries of accused persons should be attributed to custodial violence. For example, when an injured accused person is sent from hospital to the court he is technically in police custody. If he succumbs to his illness or injury which might have been inflicted on him by the members of public before he was taken into custody, he would be branded as a victim of custodial violence. The public and the Media need to be a little more discriminatory and should at least give the devil its due.

Legal hurdles like inability to keep a suspect for longer durations than a day, the Evidence Act being weighed against the police etc., are factors which induce police to keep suspects in ‘unofficial custody’.

Once a suspect is in ‘unofficial custody’, he ceases as such to exist on record, for the purposes of law. What is done to him is known only to police officials within the precincts of a police station. This helps and encourages the police to indulge in custodial violence with impunity.

Role of Media

A social activist like Sheila Barse while discussing the issue of brutalization of police argued that ” I have begun to feel that the police have become the new Harijan in the Media-created caste hierarchy, the holy Patrakars and the opinion-making Brahmin seem to have isolated the police as a new minority which must be accused and disdained but not heard or understood “.

Even in the Rajiv Gandhi’s assassination case wherein the top level CBI sleuths had been involved in the investigation, a suspect in custody who had been taken in confidence by the police escaped from the police clutches and committed suicide. This death is definitely not due to any police torture. So, many innumerable instances like this are on record. Every such time, there is uproar from the public and the press suspecting foul play, to punish the guilt of the police? The same public and the press are very much silent when they come across instances like the one reported recently in Madras City wherein a policeman who attempted to waylay bootleggers was beaten to death by the anti-socials. Why such a great discrimination that exists in the public mind? In some of the recent cine films it is shown that the victim himself, not satisfied with the police investigation in taking the due legal action against the wrong-done has taken law into his own hands and taken vengeance on his enemies. This is stated just to impress upon you that if the police become a silent spectator to criminal activities without properly investigating into cases to unearth the hidden truth for evidence from the assailants by some methods or other, even the law abiding society itself may turn violent to settle their scores with their law-breakers.

Administrative Reasons

Absence of proper supervision on the functioning of the officers at the police station level may instigate commission of custodial violence.

Officers at the police station level feel that their activities are not being monitored by the superiors or supervisory officers. They take the liberty of working recklessly indulging in perpetration of custodial crimes.

To keep them under proper restraint, is one of the duties of the supervisory officers. Surprise visit by the superiors at the police stations may help reducing such reckless tendency on the part of the officers at the police station level can be ensured only by effective supervision.

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Imposition of proper punishment on erring officers by the departmental superiors can go a long way in enforcing norms of the discipline among subordinate ranks.

Burden of Proof

It was found out that though in quite a few cases allegations were grossly exaggerated in many instances blame or aspersion was not unfounded in a few cases, policemen responsible for such atrocities had been awarded suitable punishment while in other cases, responsible officers could not be prosecuted for lack of evidence. As a matter of fact, in case of custodial torture and violence it is difficult to muster evidence as the witnesses in presence of whom such unlawful acts are perpetrated are in most cases policemen who out of a sense of brotherhood refrain from giving evidence against fellow policemen responsible for such case.

The Supreme Court has emphasized the extremely peculiar character of a situation where a Police Officer alone and none else can give evidence regarding the circumstances in which a person in police custody comes to receive injuries. The Court held this situation naturally, results in paucity of evidence and probable escape of the guilty persons. It was for this reason that the Supreme Court called for a re-examination of the law of burden of proof. The Supreme Court was anxious that police officers who commit atrocities on persons in police custody do not escape punishment for want of evidence. Taking the above judgement of the Supreme Court as a case study, the Law Commission has suggested the insertion of the following Section in Indian Evidence Act :

“114B (1) In a prosecution (of a Police Officer) for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during the period when that person was in the custody of the police, the court may presume that the injury was caused by the police officer having custody of that person during that period.”

Status of the Victim

On many occasions rape has been committed in police custody in different parts of the country. In most cases, the victims belong to the weaker sections of the community including the women folk of the tribal community.

Overcrowding in Jail

The problem of overcrowding in Indian prisons is not a new feature and is synonymous with all the other problems of imprisonment. It cripples every attempt to humanize living standards behind bars, and its implications are too obvious and too serious to neglect. Yet the phenomenon has remained unresolved for more than a hundred years. The occupancy in almost every prison varies from day to day due to induction or addition of new convicts and new under trials and release old convicts and old under trails. Still an estimate of population of inmates at the end of a year serves as a fairly reliable indicator for determining prison population. Each prison has authorized capacity, percentage of inmates against authorized capacity (inmate population multiplied by hundred and divided by total capacity) is called occupancy rate. This rate depicts the extent of overcrowding. The presence of under trials is the principal reason for overcrowding in prisons. Overcrowding strains prison infrastructure, hampers correctional services, spreads contagious diseases and leads to multiple problems for prison administration including larger incidence of indiscipline and violence, and diversion of prison staff for routine duties such as distribution food, security and guarding.

According to Lord Wolf, “Owing to overcrowding, very often a substantial number of prisoners leave jails more embittered and hostile to society than when they arrived.” Overcrowding of prisons is a global phenomenon and a cause of major concern for prison administration over the world. Large number of under trial prisoners in Indian jails may be due to delay in police investigation, non-furnishing of bail by economically weak prisoners, non-appearance of witnesses in courts on the dates of hearing. Obviously, if prison overcrowding has to be brought down, the under-trial population has to be reduced drastically. This, of course, cannot happen without the courts and the police working in tandem. Readers would now understand how the three wings of the criminal justice system would have to act in harmony, if the current mess that the criminal justice system is has to be cleared. Too many under-trial prisoners are a blot on those who administer justice in the country. Speedy trials are frustrated by a heavy court workload, police inability to produce witnesses promptly and a recalcitrant defence lawyer who is bent upon seeking adjournments, even if dilatory tactics harm his client.

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Deaths in Jails

Death of an inmate is a matter of serious concern for prison administration. Sometimes, public takes to street in protest against such deaths. It invites flak from media, Non-Governmental Organizations concerned with civil liberties and Human Rights Commission. Deaths in jails have been broadly classified into two categories i.e. Natural Deaths and Unnatural Deaths.

Unnatural deaths include Suicides, Execution, Murder by inmates, due to firing, Due to negligence or excess by jail personnel etc. One of the most striking and positive features of these prisons, however, is that they do have ambulances for use in emergencies. Interestingly, the prisons in Karnataka have recorded consistently less deaths compared to other states.

Unsatisfactory Living Conditions

Overcrowding itself leads to unsatisfactory living conditions. Although several jail reforms outlined earlier have focused on issues like diet, clothing and cleanliness, unsatisfactory living conditions continue in many prisons around the 76 countries. A special commission of inquiry, appointed after the 1995 death of a prominent businessman in India’s high-security Tihar Central Jail, reported in 1997 that 10,000 inmates held in that institution endured serious health hazards, including overcrowding, “appalling” sanitary facilities and a shortage of medical staff. Lack of hygiene is one of the most pressing problems created by overcrowding in Karnataka’s prisons. Since the existing prisons do not conform to the appropriate standards structurally, they are not able to provide acceptable conditions even where the prisons are not overcrowded. Yet, for years, those prisons have been housing double the number of prisoners they should accommodate.Not a single prison can claim that it has sufficient water for daily use as given in the prison manual. The inadequacy of facilities and the level of overcrowding mean that in the prisons of Madikeri, Bidar, Gulbarga, Bellary and Bangalore, about 75 inmates are forced to use a single toilet on any given day.

While the Model Prison Manual specifies one toilet for every seven inmates, in most of the recently constructed prisons, there are just two toilets for use by 60 inmates during the night.

In several prisons, even day-time toilets outside the barracks are insufficient. Though there are ample space available, adequate toilets are not constructed. In most prisons both ground and municipal water for drinking is extremely scarce. As a result, the toilets both inside and outside the barracks are filthy. In many prisons the inmates cannot bathe for weeks and even months. This is nothing short of gross indifference to the rights of prisoners who suffer at the hands of their caretakers.

Poor Spending on Healthcare and Welfare

In India, an average of Rs.17725.90 per inmate per year was spent by prison authorities during the year 2009, distributed under the heads of food, clothing, medical expenses, vocational/educational, welfare activities and others.

This is in contrast to the US, where the average annual operating cost per state inmate in 2001 was $22,650 (the latter presumably also includes salaries of prison staff).

The maximum expenditure in Indian prisons is on food.

West Bengal, Punjab, Madhya Pradesh, Uttar Pradesh, Bihar and Delhi reported relatively higher spending on medical expenses during that year, while Bihar, Karnataka and West Bengal reported relatively higher spending on vocational 79 and educational activities.

Tamil Nadu, Orissa and Chhattisgarh reported relatively higher spending on welfare activities.

For a person entering a prison for the first time, the experience can be horrifying. The closed walls, the cramped living space, the unpleasant memories of ill-treatment at the hands of the police, the ostracizing glances from bystanders, and anxieties about leaving home haunt every prisoner for the first few days.

[1] Student, CMR School of Legal Studies, Bangalore.

[2] Student, CMR School of Legal Studies, Bangalore.

[3] Student, CMR School of Legal Studies, Bangalore.

[4] People v. Adams (1903) 176 NY 351.