About the Author:
Asmiya Aji is a second year BA LL.B student, studying at Government Law College, Thiruvananthapuram.
INTRODUCTION:
Human rights are rights we have simply because we exist as human beings – they are not granted by any state. They range from the most fundamental – the right to life – to those that make life worth living, such as the rights to food, education, work, health, and liberty. Imprisonment is a feature of the penal system of every country in the modern world, and its use has been growing rapidly over many decades. There are around 10.36 million prisoners across the world today, according to the World Prison Brief database on prisoners and according to the National Crime Records Bureau Ministry of Home Affairs there are 1387 functioning of jails in India, having capacity to house 356,561 prisoners but at the same time 418,536 inmates are in jails across the India in which 2.8 lakh of them are under trials which is equal to the population of a country Barbados. Moreover, the rights enjoyed by Prisoners, under Article 14, 19 and 21, though limited, are not static and will rise to human rights when challenging a situation arises.All men are born equal and are endowed by their creator with some basic rights. Around 300 years ago, conditions of prisoners were just next to worse, because they were brutally treated and there were no specific provisions for them. After a long struggle society recognized that there are Rights of Prisoners which should be made available to them. Main objective of prisons is to bring the offenders back to the mainstream of the society. If a person commits any crime, it does not mean that by committing crime, he ceases to be a human being and that he can deprive those aspects of life which constitute human dignity.
In Indian constitution, there was no express provisions related to the rights of prisoners but in the case of STATE OF ANDHRA PRADESH V. CHALLA RAMKRISHNAN REDDY, it was held that the prisoners are also a person and they will not lose their basic constitutional rights.
The Supreme Court stated that a “prisoners whether a convict, under trial or detenu, does not cease to be a being human being and while lodged in jail, he enjoys all his FRs as mentioned by the constitution including Article 21-Right to Life.” The Supreme Court of India in the recent past has been very vigilant against encroachments upon the human rights of prisoners. The rights to life and personal liberty are the backbone of human rights in India. In the instant case, the court stated that ” the ambit of personal liberty by Article 21 of the Constitution is wide and comprehensive. It embraces both substantive rights to personal liberty and procedures prescribed for their deprivation” and also opined that the procedures prescribed by law must be fair, just and reasonable. In the following cases too It has been held that right to legal aid, speedy trail, right to have interview with friend, relative and lawyer, protection to prisoners in jail from degrading, inhuman, and barbarous treatment, right to travel abroad, right live with human dignity, right to livelihood, etc. though specifically not mentioned are Fundamental Rights under Article 21 of the Constitution. The Supreme Court of India has developed Human Rights jurisprudence for the preservation and protection of prisoner’s Right to Human Dignity.
The D.K Basu Case is a landmark judgment on the rights of prisoners in india. For the judgment The Supreme Court relied on the judgment of Neelabati Behra v. State of Orissa, wherein it was held that torture of any form, or cruel and inhumane behavior towards arrested persons deprived them of their Fundamental Rights, especially Article 21, which is against the law of the country. A restriction on Fundamental Rights could only be imposed on the citizens in accordance with the provisions of the law. The same view was also observed in the case of Sunil Batra v. Delhi Administration. The Supreme Court also mentioned the case of Joginder Kumar v. State of Uttar Pradesh and held that even though procedural requirements regarding arrests of criminals had already been laid down, it was found that police officers were making arrests without warrants.
Rights against Solitary Confinement and Bar Fetters:
The courts have strong view against solitary confinement and held that imposition of solitary confinement is highly degrading and dehumanizing effect on the prisoners. The courts have taken the view that it could be imposed only in exceptional cases where the convict was of such a dangerous character that he must be segregated from the other prisoners. The Supreme Court in Sunil Batra considered the validity of solitary confinement. The court observed that continuously keeping a prisoner in fetters day and night reduced the prisoner from human being to an animal and such treatment was so cruel and unusual that the use of bar fetters was against the spirit of the Constitution of India.
Rights against Inhuman Treatment of Prisoners:
Human Rights are part and parcel of Human Dignity. The Supreme Court of India in various cases has taken a serious note of the inhuman treatment on prisoners and has issued appropriate directions to prison and police authorities for safeguarding the rights of the prisoners and persons in police lock–up. The Supreme Court read the right against torture into Articles 14 and 19 of the Constitution. The court observed that “the treatment of a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14”. In Raghubir Singh v. State of Bihar, the Supreme Court expressed its anguish over police torture by upholding the life sentence awarded to a police officer responsible for the death of a suspect due to torture in a police lock – up. In Kishore Singh VS. State of Rajasthan the Supreme Court held that the use of third degree method by police is violative of Article 21.
Right to have Interview with Friends, Relatives and Lawyers:
The horizon of Human Rights is expanding. Prisoner’s rights have been recognized not only to protect them from physical discomfort or torture in person, but also to save them from mental torture. The Right to Life and Personal Liberty enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to have interview with the members of one’s family and friends is clearly part of the Personal Liberty embodied in Article 21. Article 22 (I) of the Constitution directs that no person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice. This legal right is also available in the Code of Criminal Procedure under Section 304(1). The court has held that from the time of arrest, this right accrues to the arrested person and he has the right of choice of a lawyer. In a series of cases the Supreme Court of India considered the scope of the right of the prisoners or detainees to have interviews with family members, friends and counsel.
In Hussainara Khatoon vs. Home Secretary, Bihar, the Supreme Court has held that it is the Constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the state and the state is under Constitutional duty to provide a lawyer to such person if the needs of justice so require. If free legal services are not provided the trial itself may be vitiated as contravening the Article 21.
Right to Speedy Trial:
The speedy trial of offences is one of the basic objectives of the criminal justice delivery system. Once the cognizance of the accusation is taken by the court then the trial has to be conducted expeditiously so as to punish the guilty and to absolve the innocent. Everyone is presumed to be innocent until the guilty is proved. So, the quality or innocence of the accused has to be determined as quickly as possible. It is therefore, incumbent on the court to see that no guilty person escapes, it is still more its duty to see that justice is not delayed and the accused persons are not indefinitely harassed. It is pertinent to mention that “delay in trail by itself constitute denial of justice” which is said to be “justice delayed is justice denied”. It is absolutely necessary that the persons accused of offences should be speedily tried so that in cases where the bail is refused, the accused persons have not to remain in jail longer than is absolutely necessary. The right to speedy trial has become a universally recognized human right.
The main procedure for investigation and trial of an offence with regard to speedy trial is contained in the code of criminal procedure. The right to speedy trial is contained under section 309 of Cr.PC. If the provisions of Cr.PC are followed in their letter and spirit, then there would be no question of any grievance. But, these provisions are not properly implemented in their spirit. It is necessary that the Constitutional guarantee of speedy trial emanating from Article 21 should be properly reflected in the provisions of the code.
Right to Legal Aid:
Though, the Constitution of India does not expressly provide the Right to Legal Aid, but the judiciary has shown its favour towards poor prisoners because of their poverty and are not in a position to engage the lawyer of their own choice. The 42nd Amendment Act, 1976 has included Free Legal Aid as one of the Directive Principles of State Policy under Article 39A in the Constitution. This is the most important and direct Article of the Constitution which speaks of Free Legal Aid. Though, this Article finds place in Part-IV of the Constitution as one of the Directive Principle of State Policy and though this Article is not enforceable by courts, the principle laid down there in are fundamental in the governance of the country. Article 37 of the Constitution casts a duty on the state to apply these principles in making laws. While Article 38 imposes a duty on the state to promote the welfare of the people by securing and protecting as effectively as it many a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The parliament has enacted Legal Services Authorities Act, 1987 under which legal Aid is guaranteed and various state governments had established legal Aid and Advice Board and framed schemes for Free Legal Aid and incidental matter to give effect to the Constitutional mandate of Article 39-A. Under the Indian Human Rights jurisprudence, Legal Aid is of wider amplitude and it is not only available in criminal cases but also in civil, revenue and administrative cases.
Rights against Hand Cuffing:
In Prem Shanker vs. Delhi Administration the Supreme Court added yet another projectile in its armoury to be used against the war for prison reform and prisoner’s rights. In the instant case the question raised was whether hand–cuffing is constitutionally valid or not? The Supreme Court discussed in depth the hand cuffing jurisprudence. It is the case placed before the court by way of Public Interest Litigation urging the court to pronounce upon the Constitution validity of the “hand cuffing culture” in the light of Article 21 of the Constitution. In the instant case, the court banned the routine hand cuffing of a prisoners as a Constitutional mandate and declared the distinction between classes of prisoner as obsolete. The court also opined that “hand cuffing is prima-facie inhuman and, therefore, unreasonable, is over harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring to inflict “irons” is to resort to Zoological strategies repugnant to Article 21 of the Constitution”.
Narco Analysis/Polygraph/Brain Mapping:
In Selvi Vs State of Karnataka (2010), the Supreme Court has declared Narcoanalysis, Polygraph test and Brain Mapping unconstitutional and violative of human rights. This decision is quite unfavourable to various investigation authorities as it will be a hindrance to furtherance of investigation and many alleged criminals will escape conviction with this new position. But the apex court further said that a person can only be subjected to such tests when he/she assents to them. The result of tests will not be admissible as evidence in the court but can only be used for furtherance of investigation. With advancement in technology coupled with neurology, Narcoanalysis, Polygraph test and Brain mapping emerged as favourite tools of investigation agencies around the world for eliciting truth from the accused.
But eventually voices of dissent were heard from human rights organizations and people subjected to such tests. They were labelled as atrocity to human mind and breach of right to privacy of an individual. The Supreme Court accepted that the tests in question are violative of Article 20 (3), which lays down that a person cannot be forced to give evidence against himself. Court also directed the investigation agencies that the directives by National Human Rights Commission should be adhered to strictly while conducting the tests.
The present ‘Prisons Act, 1894’ is a pre-independence era Act and is almost 130 years old. The Act mainly focuses on keeping the criminals in custody and enforcement of discipline and order in prisons. There is no provision for reform and rehabilitation of prisoners in the existing Act. With the objective of holistically providing guidance and addressing the gaps in the existing Prisons Act, including the use of technology in prison management, making provisions for grant of parole, furlough, remission to prisoners to encourage good conduct, special provision for women/ transgender inmates, physical and mental well-being of prisoners and focus on the reformation and rehabilitation of inmates, etc. the Ministry of Home Affairs, under the able guidance of Home Minister Shri Amit Shah, has finalised a comprehensive ‘Model Prisons Act, 2023’, which may serve as a guiding document for the States, and for adoption in their jurisdiction.
Along with ‘The Prisons Act, 1894’, ‘The Prisoners Act, 1900’ and ‘The Transfer of Prisoners Act, 1950’ have also been reviewed by the Ministry of Home Affairs and relevant provisions of these Acts have been assimilated in the ‘Model Prisons Act, 2023.’ State Governments and Union Territory Administrations can benefit from the Model Prisons Act, 2023 by adopting it in their jurisdictions, with such modifications which they may consider necessary, and repeal the existing three Acts in their jurisdictions.
Probation of Offenders Act, 1958:
The main aim behind the Probation of Offender Act, 1958 is to give an opportunity to offenders to reform themselves rather than turning into hardened criminals. Section 562 of the Code of Criminal Procedure, 1898 (after amendment it stands as Section 360 of the Code of Criminal Procedure, 1973) provides that any person not below twenty-one years of age who may have not been convicted for an offence for imprisonment up to seven years or not convicted to death or imprisonment of life can be released on the basis of probation for good conduct.The Act is a landmark in advancing the new liberal reform movement in the penology field. It is the result of the recognition of the doctrine that criminal law is more about reforming the individual offender than about punishing. Probation has its influence from the juvenile justice system of “positivism” which has its development from the ideologies of the criminal justice system.
Statutory provisions under the Act:
The provision is broadly classified into procedural and substantive general laws dealing with probation of the offenders.The first provision to deal with probation was in Section 562 of the Code of Criminal Procedure,1898. After the amendment in 1973, the probation was dealt with in Section 360 of the Code of Criminal Procedure. This Section says that if:
Any person who is not below twenty-one years and is convicted of a crime for which the punishment is imprisonment for seven years or is convicted for an offence punishable with fine.
Or any person who is below twenty-one years or if any women convicted of an offence not punishable with imprisonment of life or death and no previous conviction is proved against the offender. And appears before the court, regardless of the circumstances in which he has committed the offence, the court might release the offender on the promise of good conduct.
In this case of Jugal Kishore Prasad v. The State of Bihar, the Supreme Court stated that the aim of the law is to deter the juvenile offenders from turning into obdurate criminals as a result of their interaction with seasoned mature-age criminals in case the juvenile offenders are sentenced to incarceration in jail. It is observed that the Act is in accordance with the present trend of penology, which says that effect should be made with accordance to change and remould the offender and not to retribute justice. Modern criminal jurisprudence recognises that no one is born criminal. A good number of crimes are a result of a socio-economic environment.
The Probation of Offenders Act applies to India as a whole except for Jammu State and Kashmir. This Act shall come into force in a State on such date as the Government of the State may designate, by notice in the Official Gazette.
CONCLUSION:
Imprisonment is a form of reformative measure that was introduced to reform criminals because it has always been believed by the lawmakers of our country that no matter what crime a person has committed’ he can always be reformed. India should and its administrative personnel should stick by this principle and use imprisonment to reform the criminals. As has been mentioned in a plethora of cases ‘ a prisoner is also a person and basic fundamental rights except few should not be taken away from them. The benefit of probation can be usefully applied to cases where persons on account of family discord, destitution, loss of near relatives, or other causes of like nature, attempt to put an end to their own lives. Its aim is to reform the offender and to make him see the right path.It would be of great help to a country like India where the prisons are always overcrowded, with regular abuses of human rights that will harden a person’s inside. Probation is the divine affirmation inside every being and it has to be given importance.
In order to accomplish the ultimate purpose of reclaiming all criminals back into organized society, the reform and recovery process must be carried out in the sense of the current social situation. Along with the juvenile justice system, probation has taken the human interests and socio-economic issues underlying the principles of crime and punishment to the forefront. It also helped to build positive views towards prisoners and expanded the role of enforcing criminal justice beyond standard sentencing.
References:
The Legal Services Authority Act, 1987.
Human rights and Criminal Justice in India, Prof (Dr.) Pradeep Kulshrestha (Editor-in-Chief); Namit K. Srivastava (Editor) and Harish K. Tiwari (Editor).
