Indian constitution and human rights of prisoners

INTRODUCTION

Human rights are those rights, which are inherent in nature. According to section 2 (1) (d) of the Protection of Human Rights Act, 1993, human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the International Covenants and enforceable by courts in India. According to UDHR the expression human rights denotes all those rights which are inherent in nature and without which we cannot live as human beings.

The framers of our Indian constitution were greatly influenced by the provisions given in the Universal Declaration of Human Rights, 1948. The Preamble itself guarantees the citizens JUSTICE, LIBERTY, EQUALITY and DIGNITY. Indian Constitution guarantees certain rights to the prisoners also. Those rights include, right against exploitation, right to free legal aid, right to speedy trial etc.

HUMAN RIGHTS LAWS IN INDIA

The fundamental rights under the Part III of the Indian constitution provide certain civil and political rights whereas provisions of Directive Principles of State Policy give the economic, social and cultural rights. The Parliament of India enacted Protection of Human Rights Act 1993, which constituted the National Human Rights Commission, State Human Rights Commission and Human Rights Courts for the better stability in the preservation of human rights. Our Parliament also issued certain legislations to protect the crimes against women (which include Dowry Prohibition Act 1961, Protection of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressed) Act, 2013, Women from Domestic Violence Act , 2005) and certain vulnerable sections of our society like the Scheduled Castes, Scheduled Tribes, disabled etc.

PREM SHANKER SHUKLA V. DELHI ADMINISTRATION¹

The Supreme Court held that the continued and unjustified use of handcuffs and chains on prisoners and detainees was unconstitutional and it constituted an infringement of the rights to human dignity and referred to Article 5 of UDHR.

CHAIRMAN, RAILWAY BOARD V. CHANDRIMA DAS²

The Supreme Court has asserted that it will apply international human rights norms while interpreting our Constitution. The Court has also observed that our Constitution in Part III guarantees all the basic and fundamental rights set out in the UDHR 1948 to its citizens and all other persons. The provisions of the UDHR which find place in the Indian Constitution are legally binding with most effective judicial remedy.³

Human beings are rational beings. Certain rights are guaranteed to the humans by their birth, human rights are one among that. That’s why they are known as inalienable rights. Each is born to this world with equal human rights. So No one has any right to harm the life of others. Each and every one in the world is a creature of GOD. Therefore, it is our duty to preserve such beautiful creatures. Mother Teresa quoted that, “Human Rights are not a privilege conferred by the government. They are every human being’s entitlement by virtue of his humanity”.

RIGHTS OF ACCUSED UNDER INDIAN CONSTITUTION

The fundamental rights guaranteed under Article 14, 19, 20, 21 and 22 and Part III of the Constitution of India deals with the rights of prisoners. Article 14 states the right to equality which provides ‘equality before law’ and ‘equal protection of law’ to all persons. Article 21 deals with right to life and personal liberty. Article 20 deals with two things, firstly it prohibits double jeopardy, that is, no person should be convicted for the same offence twice. Secondly, it prohibits self incrimination, that is, no one can be forced to be a witness against himself. Article 22 provides that a person must be produced before a magistrate within 24 hours of his arrest and also allow him to consult his counsel.

Blackstone in his famous work, ‘Commentaries on the Laws of England’ states that it is better that ten guilty persons escape than that one innocent suffer. Normally a person is said to be an accused, if he had made any infringement to the established law. Being the law of land, our Constitution itself protects certain rights of the accused ones. In the case Charles Sobraj vs The Supdt., Central Jail, Tihar the court discussed Whether the prisoners can invoke their constitutional rights under Part III of the Constitution and Article 21 of the Constitution. Prison justice is a sort of solemn covenant running with the power of the Court to sentence the accused. Court held that Imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to recognise the full panoply of Part lII of the Constitution enjoyed by a free citizen. Whenever fundamental rights are flouted or legislative protection ignored to any prisoner’s prejudice, this Court’s writ will run breaking through stone walls and iron bars, to right the wrong and restore the rule of law. Then the parrot-cry of discipline thrill not deter, of security will not scare, of secretion will not dissuade the judicial process.

For if courts ‘cave in’ when great rights and sound within the sound-proof, sight- proof precincts of prison houses were often dissenters and minorities are caged, Bastilles will be re-enacted. When law ends tyranny begins, and history whispers, iron has never been the answer to the rights of men.⁴ Article 20 and 22 of the Indian Constitution mainly deals with the freedom of persons, which means that it is available to both citizens and noncitizens.

Equality before Law

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

to freedom of speech and expression;
to assemble peaceably and without arms;
to form associations or unions;
to move freely throughout the territory of India;
to reside and settle in any part of the territory of India; and omitted to practise any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause (4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe

(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,

(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise

Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence

(2) No person shall be prosecuted and punished for the same offence more than once

(3) No person accused of any offence shall be compelled to be a witness against himself⁵

Article 20 provides

Clause 1 : Protection against ex post facto law

Clause 2 : Protection against double jeopardy

Clause 3 : Prohibition against self incrimination

All the proceedings under Article 20 are criminal proceedings before the court of law.

EX POST FACTO LAW

According to article 20 (1) of the constitution, “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It prohibits retrospective imposition and enhancement of criminal liability. Retrospective imposition of civil liability is not involved under the above clause.

Ratan Lal v State of Punjab⁶

A boy of 16 years was convicted for committing an offence of house trespass and outraging the modesty of a girl aged seven years. The Magistrate sentenced him for 6 months, rigorous imprisonment and also imposed a fine.After the judgement of the Magistrate , the Probation of Offenders Act, 1958 came into force.It provided that a person below the age of 21 shall not ordinarily be sentenced to imprisonment. The boy claimed the benefit of the act. SC held that the rule of beneficial interpretation required that ex post facto law could be applied to reduce the punishment. So an ex post facto law which is beneficial to the accused is not prohibited by cl. (1) of Art 20.

DOUBLE JEOPARDY

According to Article 20 (2) of our constitution, “no person shall be prosecuted and punished for the same offence more than once”. This clause is a protection against double jeopardy. The section 300 of CRPC also deals with the same principle. The accused must be entitled to the above benefits if the following conditions are satisfied.

He must be accused of an offence.
The proceedings or prosecution must have taken place before a court of law or any judicial tribunal.
The person must be prosecuted and punished in the previous proceedings.
The offence must be the same as to the previous proceedings.

Zahira Habibulla H. Sheikh v. State of Gujarat⁷

The court ruled that if acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecution and perfunctory trial and evidence of threatened witnesses, it is no acquittal in the eye of law and no sanctity can be attached to the so-called findings.

SELF INCRIMINATION

Article 20 (3) provides that no person accused of any offences shall be compelled to be a witness against himself. An accused is entitled to get the benefit of the article, only if the following essentials are satisfied (M.P Sharma v. Satish Chandra⁸)

The involved person must be accused of an offence.
There must be an element of compulsion
The compulsion must be to be a witness against himself. This privilege is available only against the accused, not the witness. In the American Constitution it is available against the witness also. The privilege can be claimed only in criminal proceedings and not extend to any inquiry proceedings.

State v. Krishna Mohan⁹

SC held that taking of specimen fingerprint and handwriting from an accused person is not prohibited by Art 20 (3) of the constitution Amrit Singh v. State of Punjab¹⁰ Court held that asking an accused to give a specimen of his hair amounts to testimonial compulsion and hence against Art 20 (3) of the constitution¹¹.

In the case of Charles Sobraj through Marie Andre’o vs. The Superintendent, Central Jail, Tihar, New Delhi (1978), Justice Krishna Aiyer held, “..imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal, Courts will refuse to recognise the full panoply of Part III enjoyed by a free citizen”. He further held that imprisonment of a prisoner is not merely retribution or deterrence but also rehabilitation.¹²

Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law

Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate

(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order

(6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose

(7) Parliament may by law prescribe

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause ( 4 );

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

Right against Exploitation.¹³

Article 22 confers four fundamental rights on a person arrested . They are as follows

The right to be informed

The right to consult and to be represented by a lawyers of his own choice

The right to be produced before Magistrate within 24 hours

The freedom from detention beyond the said period.

ROLE OF JUDICIARY IN PROTECTING THE RIGHTS OF THE PRISONERS

WITHIN THE AMBIT OF CONSTITUTION

a) RIGHT TO LEGAL AID

If a prisoner who is sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appear for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39 A of the Constitution power to assign counsel for such imprisoned individuals “for doing complete justice”. This is a necessary incident of the right of appeal conferred by the code and allowed by Article 136 of the Constitution. The accused has a right to counsel not in the permissive sense of Article 22 (1) and its wider amplitude but in the peremptory sense of Article 21 confined to prison situations.¹⁴

b) RIGHT TO EXPRESSION

c) RIGHT TO SPEEDY TRIAL

d) RIGHT TO MEET FRIENDS OR RELATIVES

e) RIGHT TO CONSULT LAWYERS

f) RIGHT TO REASONABLE WAGES IN PRISON

BASIC PRINCIPLES FOR THE TREATMENT OF PRISONERS UNDER UDHR

Adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990

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

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

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

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

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

6. All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.

7. Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged.

8. Conditions shall be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the country’s labour market and permit them to contribute to their own financial support and to that of their families.

9. Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.

10. With the participation and help of the community and social institutions, and with due regard to the interests of victims, favourable conditions shall be created for the reintegration of the ex-prisoner into society under the best possible conditions.

11. The above Principles shall be applied impartially.¹⁵

CONCLUSION WITH SUGGESTIONS

India is a federal country with a well known written constitution for protecting and safeguarding the interest of its citizens. No one is above law and also no one should be harmed by the law. “Every Saint Has A Past; Every Sinner Has A Future” – Oscar Wilde. So each one should get an opportunity to correct himself from the past to chase the future.

********

REFERENCES

1 AIR 1980 SC 1535,P.1537

2 (2000) 2 SCC 465

3 Reference : Human Rights , Dr.S.R. Myneni, Asia Law House, Hyderabad.

4 1978 AIR 1514, 1979 SCR (1) 512

5 https://indiankanoon.org/doc/655638/

6 AIR 1965 SC 444

7 (2004) 4 SCC 158

8 AIR 1954 SC 300

9 AIR 2008 SC 368

10 AIR .200f SC 132