Rights of Prison Inmates

Dhruv Gupta


The idea of human rights revolves around those rights which a person is entitled to soon after his birth; such rights are a feature of his birth as a human. In other words, it can be said that they are inalienable fundamental rights to which a person is inherently entitled simply because he/she is a human.

While human rights have continued to evolve in the world ever since their inception, the most landmark accomplishment in this field was achieved in 1948, with the passing of the Universal Declaration of Human Rights by the UN General Assembly.[1] Some rights that have been provided for include (among many others)-

Article 1– All human beings are born free and equal in respect of their dignity and rights. They are endowed with reason and conscience and should act towards one another in the spirit of brotherhood.

Article 3– Everyone has a right to life, liberty, and security of person.

Article 7– All are equal before the law and are entitled without any discrimination to equal protection of the law.

These human rights can broadly be divided into two basic types-

  1. Political and Civil rights which include Right to life and liberty, Freedom of expression, etc.
  2. Social and Economic rights which include Right to work, Right to education, etc.

These human rights have evolved all across the globe in different ways. With regard to the history of the evolution of human rights in India,[2] it can be seen in with regard to three periods-

  1. Ancient times: Dharmashastras provide for ancient human rights based on the concept of ‘Dharma’, which dealt with the establishment of socio-legal order free from traces of conflict, misery, and exploitation. Vedas provided for the liberty of body (tan), dwelling house (skridhi) and life (jibase). The concept of ‘Vasudeva Kutumbakam’ and the writings of Kautilya and Manu further show the evolution of human rights at that time. In post Vedic age, Buddhism and Jainism laid emphasis on rights which resembled the present day human rights.
  2. Medieval times: During the years of the Muslim rule in India, human rights were lost in the dark. This was due to the policy of discrimination, which was harmful to harmony, justice, and equity. This can clearly be observed from the differentiation of laws of Muslims and Hindus. Akbar, through his policy of ‘divine faith’ (Din-e-Ilahi), initiated a new era of human rights but it was lost through the years by subsequent rulers.
  3. Modern times: The current human rights, as they are seen in India, evolved through a series of events during the British Rule in India.  The Home Rule Document of 1895, as drafted by the Indian National Congress, provided citizens with many basic human rights like Freedom of expression, Equality before the law, etc., and is seen as the first step towards realizing the human rights. The Government of India Act, 1915 and the Nehru Report of 1928[3] also emphasized on these rights. The next significant milestone occurs in 1931 during the Karachi session of INC where details of the fundamental rights were decided. This was followed by the Government of India Act, 1935 and finally, Sapru committee in 1945, recommended the codification of these fundamental rights. The constituent assembly, therefore, included these fundamental rights in the Indian Constitution.

An interesting point to be seen in this regard is the fact that the human rights that have been talked of in the Universal Declaration of Human Rights have found their place in the Indian Constitution under two parts of the Indian Constitution. While rights like Prohibition of discrimination, Freedom of conscience and religion, etc. find a place in Part III; Right to equal pay for equal work, right to proper social order, etc. find a place in Part IV of the Constitution

As can be drawn out from the discussion above, these human rights, being fundamental to the life of a person are to be protected by each country through its various mechanisms. In the context of India, these rights are protected through laws of Legislature and Judiciary. While people can approach the courts for infringement of rights covered in Part III, the rights covered in part IV are not enforceable. The reason for such a division can be derived from the historical condition of Indians at the time of their inclusion in Constitution.

Rights of Prison Inmates

A prisoner is a “person legally committed to prison as a punishment for a crime or awaiting trial’. A person deprived of liberty, and kept under involuntary restraint, confinement or custody; especially, one on trial or in prison can also be termed as a prisoner.

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The Constitution of India, the supreme authority in the country, provides for rights guaranteed to each citizen of the country (with certain rights also provided to all persons). In the case of prisoners as well, there are some rights which the Constitution bestows upon them and cannot be taken away from them. In the case of State of Andhra Pradesh v Challa Ramakrishna Reddy[4], SC held that prisoner is entitled to all his Fundamental Rights when in jail, and on being deprived of his liberty constitutionally, the prisoner still retains his other rights. Furthermore, some rights of prisoners have also been included in The Prisons Act, 1894.

Rights guaranteed by Constitution

While the Constitution does not expressly provide for prisoner’s rights, but in the case of T.V. Vatheeswaran vs State of Tamil Nadu[5], it was held that Article 14, 19 and 21 are guaranteed to both prisoners as well as a freeman.

Article 14 provides for equality before the law or equal protection of the law. Article 19 provides for the 6 freedoms, but it is restricted in the fact that not all freedoms can be guaranteed to the prisoners due to the very nature of these freedoms. Article 21 states that no person shall be deprived of his life or liberty except according to the procedure established by law. This Article provides for rights such as-

  1. Right to free legal aid-This right deals with enabling a person to have access to justice in case of violation of his human rights. Legal aid is a constitutional right and as held in the case of M.H. Hoskot v State of Maharashtra[6], lawyer’s service forms an important ingredient of fair procedure. Furthermore, if a prisoner is unable to appeal due to the hindrance of legal assistance or financial problems, then by reading Article 142 with Article 21 and 39A, the court has the power to assign council to the prisoner to do complete justice.
  2. Right to speedy trials- This is the right implicit to the prisoner under Article 21. It seeks to maintain a just, the fair and reasonable procedure for prisoners. In the case of Hussainara Khatoon v State of Bihar[7], the court held that the State has a constitutional obligation to provide speedy trial and cannot plead financial or administrative inability. It is meant to do whatever needs to be done to ensure the same.
  3. Right to a fair trial- As held in the case of Rattiram v State of Madhya[8]fair trial includes the fair and proper opportunity to the accused to prove his innocence in the court. This is done in such a way to remove any injustice, prejudice, dishonesty, and favouritism.
  4. Right against custodial violence, death in police lock-ups- Although prisoners are held within a jail/prison due to the wrongful acts committed by them, but this simply does not allow police authorities to treat them violently. In the case of D.K. Basu vs State of West Bengal[9], the court held that custodial violence and death in police lock-ups is a direct attack on the ‘Rule of Law’, which demands that powers of the executive should be derived and limited by the law. The court also further urged the Parliament to look into the matter and implement the amendments as suggested by the Law Commission in its 113th Report.
  5. Right to expression- In the case of State of Maharashtra vs Prabhakar Panduranga,[10] the court held that barring certain categories of books, like those endangering defence of India, integrity of India etc., a prisoner is entitled to the right of expression in the form of a book and getting the same published under his right of personal liberty provided by Article 21. In case of any violation, the prisoner can approach the court for infringement of such a right.

While these form some rights covered under the Right to Life, as guaranteed Article 21, there are also few others rights that are provided to prisoners by the Constitution-

  1. Right to meet friends and consult lawyers- Human rights not only seeks to protect people from physical torture but also from mental torture. Keeping this in mind, the SC in the case of Sunil Batra vs Delhi Administration[11], held that subject to search and other security criteria, the right to society of fellow-men, parents and family members cannot be denied in light of Article 19 of the Indian Constitution.
  2. Solitary confinement refers to the separate confinement of the prisoner, with only occasional access of the other persons. It is the complete isolation of the prisoner. In the case of Ranbir, Singh Sehgal vs State of Punjab[12], it was stated that solitary confinement could only be imposed by the Court. The court further provided some guidelines regarding the solitary confinement considering that it is similar to mental torture on the prisoner.
  3. Handcuffing or bar fettering refers to the use of tools to completely hinder or immobilise the movement of the prisoner. In the case of Prem Shanker Shukla vs Delhi Administration[13], it was seen that handcuffing was prima facie inhuman, and therefore harsh and arbitrary. It was also held that minimum movement that a detainee is entitled to under Article 19 cannot be cut down by the use of handcuffs. Such handcuffing could only be used in the rarest of the rare cases where there is a large probability of the prisoner escaping.
  4. Right to reasonable wages in prison- Remuneration, not less than the minimum wages, has to be paid for the service or labour provided by a person employed by State. This stands true for both a prisoner as well as a freeman. In the case of Mohammad Giasuddin vs State of Andhra Pradesh[14]and People’s Union for Democratic Rights vs Union of India[15], the point raised was regarding the remuneration paid to the worker, whether a prisoner or freeman. The court held that “when a person provides labour or service to another for less than the minimum wage, such labour or service falls within the ambit of forced labour under Article 23. Such a person can approach the court for the enforcement of his fundamental right under Article 23 requiring the payment of the minimum wages.
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Rights provided by ‘The Prisons Act, 1894’

The Prison’s Act, 1894 was the first legislation enacted for regulating the prisons in India. The Act contains provisions regarding discipline and employment of prisoners along with various other topics like management of prisons etc.

The Act provides for various types of rights of the prisoners which can be seen as follows-

  1. Section 4 (Accommodation for prisoners), wherein it is the duty of the State government to provide for prisoners, accommodation in prisons to comply with the conditions given in the said Act.
  2. Section 7 (Temporary Accommodation for prisoners), wherein the State government, through the Inspector General, is duty bound to provide temporary prison for prisoners who cannot be kept conveniently in the prison due to the outbreak of epidemic disease or space problems.
  3. Section 24 (Prisoners to be examined on admission), wherein after a prisoner’s admission, he will be examined by a medical officer who would record the state of his health, any wound or mark on his body and the type of labour he is fit for. For female prisoners, the same shall be done by a Matron under the orders of the medical officer.
  4. Section 27 (Separation of prisoners)wherein various forms of separation are provided for-
    1. In the case of female and male prisoners, the two shall be imprisoned in separate buildings or arts of the building to prevent their seeing or conversations
    1. In case of male prisoners below the age of 21 and who have arrived at age of puberty, to be kept separately altogether
    1. Under trial prisoners would be kept separate from convicted ones
    1. Civil prisoners to be kept separate from criminal prisoners
  5. Section 29 (Solitary confinement), wherein no cell shall be used for solitary confinement if it does not enable the prisoner to communicate with an officer any time and one who is confined for more than 24 hours shall be visited by the medical officer.
  6. Section 31 (Maintenance of certain prisoners from private sources) and Section 33 (Supply of clothing and bedding to civil and acquittedcriminal prisoners), wherein civil and under trial prisoners are permitted to purchase and receive from private sources food, clothing, bedding, etc. subject to examination. Further, if they are unable to do the same, the Superintendent shall supply the same.
  7. Section 35 (Employment of criminal prisoners), wherein it is stated that a criminal prisoner shall not be kept in labour for more than nine hours. Further, the medical officer shall examine them from time to time and if he finds a prisoner’s health suffering from particular labour, the prisoner shall be placed in some other form of labour.
  8. Section 37 (Sick prisoners) and Section 39 (Hospital), wherein it is the duty of the Jailer to ensure that sick prisoners are attended to by the medical officer and any direction given by the medical officer regarding the change in discipline or treatment of prisoners shall be carried into effect. Also, it talks about providing a hospital or proper place for treatment of sick prisoners.
  9. Section 40 (Visits to civil and under trial criminal prisoners), wherein due provisions shall be provided for visits to the civil or under trial criminal prisoner by persons they wish to speak with.
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Further, they may see their duly qualified legal advisors without the presence of any other person.

Due to the change in requirements, an amendment of the Act took place. The Prisons (Amendment) Bill, 2016 brought about various changes in the parent Act, along with providing some more rights to prisoners-

  1. Section 26 A (Rights of pregnant prisoners), wherein such a prisoner’s diet and work allocation shall be determined by the medical officer. Furthermore, she shall be granted conditional parole for 30 days from the expected date of delivery or 30 days after the delivery if it takes place in the prison.
  2. An addition to Section 29 was made stating that jailor shall ensure the cells used for solitary confinement is maintained with basic hygiene, light, and air.
  3. Section 39 A (Basic Hygiene), wherein the jail authorities shall be responsible for maintaining basic hygiene in the premises of the prison. This may be done by putting prisoners or appointing temporary workers on the job of maintaining hygiene.
  4. Section 58 E, wherein the State Government shall provide skill training including computer classes, tailoring, carpentry, etc. in a manner prescribed, to the prisoners.
  5. Section 58 F, wherein the officers of the prison shall conduct workshops and seminars which would help in the rehabilitation and education of the prisoners. They would further ensure the active participation of prisoners in such workshops or seminars.
  6. An important point regarding Section 58 E & F is that prisoners of cybercrimes, treason or anti-national activities shall not be entitled to the facilities mentioned in the said sections.

Thus, it can be seen that human rights are so fundamental to the survival and life of a person that even a prisoner, under trial or convicted of a crime, is also provided with a number of rights which cannot be taken away from him. In the Indian scenario, these rights can be divided into two basic types.

The first type is those enshrined in the Constitution and provided to all the people of India. This includes Article 14, 19 and 21, also called the ‘Golden Triangle of the Indian Constitution.’ They are referred to as the Golden Triangle as they have to be read together and are meant to prevent arbitrariness and protection of rights of the people.

The second type is those enshrined in the Prisons Act and are specifically created for those in prison. They evolved out of the need to maintain the basic rights of the people in these prisons.


Every person is entitled to certain basic rights i.e. fundamental rights, by virtue of humanity.  A prisoner also classifies as a human being and hence is entitled to human rights as well, although subject to certain limitations and restrictions. Prisoners are not animals, and hence cannot be denied their basic rights. The fundamental rights guaranteed under Article 21 of the Indian Constitution are applicable on every person and hence the State cannot deny the prisoners of such rights.

[1] 10th December 1948, Paris.

[2] Ramakanata Satapathy, Development of Concept of ‘Human Rights’ in India, 3 Asian Journal of Multidisciplinary Studies, (2015).

[3] Motilal Nehru , Nehru Report 1928.

[4] State of Andhra Pradesh v. Challa Ramakrishna Reddy A.I.R. 2000 S.C. 2083.

[5] Vatheeswaran v. State of Tamil Nadu (1983) 2 S.C.C. 68.

[6] M.H. Hoskot v. State of Maharashtra (1978) 3 S.C.C. 544.

[7] Hussainara Khatoon v. State of Bihar (1980) 1 S.C.C. 81.

[8] Rattiram v. State of Madhya (2012) 4 S.C.C. 516.

[9] D.K. Basu v. State of West Bengal (1997) 1 S.C.C. 416.

[10] State of Maharashtra v. Prabhakar Panduranga A.I.R. 1966 SC 424.

[11] Sunil Batra v. Delhi Administration A.I.R. 1980 S.C. 1579.

[12] Ranbir, Singh Sehgal v. State of Punjab AIR 1962 SC 510.

[13] Prem Shanker Shukla v. Delhi Administration A.I.R. 1980 S.C. 1535.

[14] Mohammad Giasuddin v. State of Andhra Pradesh A.I.R. 1977 SC 1926.

[15] People’s Union for Democratic Rights v. Union of India A.I.R. 1982 S.C. 1473.