“Every saint has a past, and every sinner has a future”
– Oscar Wilde

Introduction
When a person is convicted or put in prison, his status is different from that of an ordinary person. A prisoner cannot claim all the fundamental rights that are available to an ordinary person. Apart from various statutory provisions with regard to prisoners’ rights, the Supreme Court of India and various High Courts in India have extended the implementation of prisoners’ rights in various decisions. These rights are not absolute and several restrictions have been imposed on their enjoyment.

Statutory Provisions

There is no guarantee of prisoners’ right as such in the Constitution of India. However, certain rights which have been enumerated in Part III of the Constitution are available to the prisoners also because a prisoner remains a “person” inside the prison.[1] The right to personal liberty has now been given very wide interpretation by the Supreme Court. This right is available not only to free people but even to those behind bars. The right to speedy trial, right to free legal aid, right against torture, right against inhuman and degrading treatment, accompanies a person into the prison as well.

One of the important provisions of the Constitution of India which is generally applied by the courts is article 14, in which the principle of equality is embodied. The rule that “like should be treated alike” and the concept of reasonable classification as contained in article 14 has been a very useful guide for the courts to determine the category of prisoners and their basis of classification in different categories.

Article 19 of the Constitution guarantees six freedoms to the citizens of India. Among these, certain freedoms like ‘freedom of movement’, ‘freedom to reside and to settle’ and freedom of profession, occupation, trade or business” cannot be enjoyed by the prisoners because of the very nature of these freedoms and due to the condition of incarceration. But other freedoms like “freedom of speech and expression”, “freedom to become a member of an association” etc. can be enjoyed by the prisoner even behind the bars and his imprisonment or sentence has nothing to do with these freedoms. But these will be subjected to the limitations of prison laws.

Article 21 of the Constitution has been a major centre of litigation so far as the prisoners’ rights are concerned. It embodies the principle of liberty. This provision has been used by the Supreme Court of India to protect certain important rights of prisoners. After the Maneka Gandhi case,[2] this article has been used against arbitrary actions of the executive especially the prison authorities. After that decision it has been established that there must be fair and reasonable procedure for the deprivation of the life and personal liberty of the individuals. The history of judicial involvement in prison administration shows that whenever the prison officials have subjected the inmates to brutal treatment the courts have intervened to protect their rights. The issue of prison conditions and environment has emerged as one of the predominant themes of correctional philosophy raising questions concerning inmate’s rights and fate of prison life.

Right to Fair Procedure

When we trace the origin of the prisoners’ right in India, the embryo can be found in the celebrated decision of A. K. Gopalan v. State of Madras.[3] One of the main contentions raised by the petitioner was that the phrase “procedure established by law” as contained in article 21 of the Constitution includes a ‘fair and reasonable’ procedure and not a mere semblance of procedure prescribed by the State for the deprivation of life or personal liberty of individuals.

The majority view in Gopalan was that when a person is totally deprived of his personal liberty under a procedure established by law, the fundamental rights including the right to freedom of movement are not available. It was held:

“There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder. In some cases, restrictions have to be placed upon free exercise of individual rights to safeguard the interests of the society: on the other hand, social control which exists for public good has got to be restrained, lest it should be misused to the detriment of individual rights and liberties.”

Another important decision was State of Maharashtra v. Prabhakar Pandurang.[4] In this case, the
court held that conditions of detention cannot be extended to deprivation of other fundamental rights consistent with the fact of detention. However, the courts did not in their actual decisions provide much relief to the prisoners. Even the violation of procedure established by the law in the Prisons Act or Jail Manuals did not entitle prisoners to any relief.[5]

Personal Liberty

The Supreme Court had to consider the relationship of Articles l9 and 21 with the prisoners’ rights in Kharak Singh v. State of U.P.[6] The Supreme Court contrasted Article 21 of the Constitution with the Fourth and Fourteenth Amendments to the United States Constitution.

The word ‘liberty’ in Article 21 is qualified by the word ‘personal’. The word ‘personal liberty’ in Article 21 is used as a compendious term to include within itself all varieties of right which go to make the personal liberties of men other than those within several classes of Article 19(1).

According to Subba Rao, J. who dissented in Kharak Singh, it is not correct to say that the expression ‘personal liberty’ in Article 21 excludes the attributes of freedom specified in Article 19. He brought out the relationship between Articles 19 and 21 by observing that the fundamental right of life and liberty have many attributes and some of them alone are found in Article l9. A person’s fundamental rights under Article 21 may be infringed only by law, such that law should satisfy the test laid down in Article l9. It is true that in Article 21 the word ‘liberty’ is qualified by the word ‘personal’ but this qualification is employed in order to avoid overlapping between those incidents of liberty which are mentioned in Article 21. An unauthorised intrusion into a person’s home and the disturbance caused to him is the violation of the personal liberty of the individual.

Maneka Gandhi case was the turning point in the human rights Jurisprudence especially in
personal liberty. Maneka Gandhi accepted the dissenting view of Justice Subba Rao in Kharak Singh. The expression ‘personal liberty’ in Article 21 is of the widest amplitude and covers every one of the rights which constitutes personal liberty of man. The personal liberties have been raised to the status of distinct fundamental right and given additional protection under Article 19.

The Extent of Judicial Interference

There may arise occasions which compel the prisoners to approach the courts for the redressal of their grievances.

The Supreme Court in Charles Sobraj[7] not only reiterated the power of courts to issue writs but also highlighted their duty and authority to see that the judicial warrant was not misused. The prisoners should get the protection of the fundamental rights guaranteed to the citizens under the
Indian Constitution against any arbitrary and discriminatory treatment by the prison authorities.[8]
Krishna Iyer, J. of the Supreme Court observed:

“Confronted with cruel conditions of confinement, the court has an expanded role. True, the right to life is more than mere animal existence, or vegetable subsistence. True, the worth of the human person and dignity and divinity of every individual inform articles 19 and 21 even in a prison setting. True constitutional provisions and municipal laws must be interpreted in the light of the normative laws of nations, wherever possible and a prisoner does not forfeit his part III rights.”

Considering the question of the rights available to the prisoners, the Supreme Court has rightly affirmed that imprisonment does not spell farewell to fundamental rights, though the courts may refuse to allow in full the fundamental rights enjoyed by free citizens. The court made it clear that the claims of prisoners against cruel and unusual punishments need not necessarily depend for their soundness upon specific constitutional provisions prohibiting such treatment. Thus it is evident that Charles Sobraj is a landmark decision in the “prisoner rights jurisprudence.”

Another opportunity for advancing human rights in the field of criminal jurisprudence came before the Supreme Court in Francis Coralie Mullin.[9] The right to life protected under Article 21 is not confined merely to the right of physical existence but it also includes within its broad matrix the right to the use of every faculty or limb through which life is enjoyed as also the right to live with basic human dignity.

The Supreme Court observed that as a necessary component of the right to life, the prisoner would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating ‘the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reasonable, fair and just. Justice Bhagwati further pointed:

“The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of ‘personal liberty’ guaranteed ‘under’ that Article. The expression “personal liberty” is of the widest amplitude and it includes the right to socialize with members of the family and friends subject, of course, to any valid prison regulations and under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, invalid as being violative of articles 14 and 21.”

The State cannot, by law or otherwise deprive any person of the right to live with basic human dignity. Torture or cruel, inhuman or degrading treatment or punishment which trenches upon human dignity would be impermissible under the Constitution. Thus the Supreme Court elevated immunity against torture or degrading treatment to the status of a fundamental right under Article 21, though it is not specifically enumerated as a fundamental right in the Constitution.[10]

The Supreme Court was not prejudiced by the fact that the petitioner was not a citizen of India. Human rights are universal, and the Supreme Court’s endorsement of this proposition is much in evidence in this decision. The extension of the understanding of ‘life’ to include human dignity is an unmistakable reflection of the court’s sensitivity to the pervasive aspect of human rights. The depth of understanding went beyond the words to the substance, and is now an inalienable part of Indian constitutional law.

Sunil Batra Cases

Awareness about prisoners’ rights was created among the people by the above mentioned decisions. But no substantial reforms have been made by the Central Government or the State Governments except the appointment of some Prison Reforms Committees.[11] In spite of this the Supreme Court has taken initiative in order to humanize jail administration to some extent. The two Sunil Batra cases are significant decisions in this direction.[12]
In Sunil Batra (I), the Supreme Court established that convicts are not merely by reason of conviction denuded of all the fundamental rights which they otherwise possess. The conviction deprives the prisoner the fundamental freedoms like the right to move freely throughout the territory of India and the right to practice a profession.

In Sunil Batra (II) Justice Krishna Iyer openly acknowledged the activist policy-making role of the judicial process, particularly in view of the legislative laxity, in the humanisation of the prison system and observed thus:

“Of course, new legislation is the best solution, but when law makers take far too long for social patience to suffer, as in this very case of prison reform, courts have to make-do with interpretation and carve on wood and sculpt on stone ready at hand not wait for far away marble structure”.

The judge gave a number of guidelines on the humanist reforms of the penal process and the prison administration. The Supreme Court has directed that the treatment of prisoners must be commensurate with his sentence and satisfy the tests of Articles 14, 19 and 21 of the Constitution. It expanded the scope of the writ of habeas corpus by recognising the right of a prisoner to invoke the writ against prison excesses inflicted on him or on a co-prisoner. Furthermore, the court gave many directions to improve the prison administration.

The post-conviction visits by the judges to the prison will bear many beneficial results. They reduce the possibility of the vindictive attitude of the jail authorities and help the prisoner to get suitable treatment. The visits give an opportunity to the judges to observe the impact of a particular punishment on the criminal, to learn directly whether or not it helps to reform the criminal and to understand how they should act in future to make the penal system functionally effective.

Highlighting the responsibility of the sentencing court to visit prisons and to guardian their sentences, Justice Krishna Iyer gave a new dimension to the sentencing power of courts. The popular prejudice that attaches itself to convicts did not deter the court in its attempt to eliminate prison injustice. The court expressly stated that conviction, however heinous an offence, did not make a non-person of a person. While imprisonment would deprive the convict of his personal liberty, his fundamental right did not otherwise stand automatically abrogated.

New Dimensions of Reformative Jurisprudence

The objectives of punishment justify the restrictions imposed upon the prisoner’s right to move about freely within the jail. But since prisoners are entitled to the fundamental rights, the restrictions should have a rational relationship with the working of the correctional system.

Judiciary can prescribe standards of treatment by jail administration if the convict is likely to become more sociopathic than what he was prior to the sentence. Justice Krishna Iyer, in L. Vijayakumar v. Public Prosecutor[13] stressed the need to keep first offenders who were young, away from the hardened criminals in jail, so as to provide the former with opportunities of reforming themselves into better citizens.

In Vijayakumar all the accused persons who were around seventeen years were sentenced to 2.5 years of imprisonment by the sessions court for robbing a bank with non-violent use of crude pistols and country bombs. The High Court enhanced the sentence to seven years rigorous
imprisonment. Even though the full bench of the Supreme Court did not interfere in the sentence passed, Justice Krishna Iyer gave various guidelines with regard to the treatment of prisoners to reduce their criminal tendencies. Justice Krishna Iyer pointed out that the court has the responsibility to see that punishment serves social defense:

“A hospital setting and a humanitarian ethos must pervade our prisons if the retributive theory, which is but vengeance in disguise, is to disappear and deterrence as a punitive objective gain success not through the hardening practice of inhumanity inflicted on a prisoner but by reformation and healing whereby the creative potential of the prisoner is unfolded. These values have their roots in Article 19 of the Constitution which sanctions deprivation of freedoms provided they render a reasonable service to social defense, public order and security of the state”.

The purpose of confinement is not to pass a person to the jail authorities to be punished vindictively. Confinement is the punishment and it has to be administered according to law. The responsibility of a judge is not over by rendering ea decision cni the guilt of the accused and by passing a sentence of punishment. The judge has a greater role to play.

In Sunil Batra (I)[14] Justice Krishna Iyer canvassed for positive experiments in rehumanisation
including meditation, music, arts of self-expression, games, useful work with wages, prison festivals, visits by and to families, even participative prison projects and controlled community life. He observed:

“The roots of our Constitution lie deep in the finer spiritual sources of social justice, beyond the melting pot of bad politicking, feudal cruelties and sublimated sadism, sustaining itself by profound faith in man and his latent divinity and the confidence that “you can accomplish by kindness what you cannot do by force” and so that it is that the Prison Act provisions and the Jail Manual itself must be revised to reflect their deeper meaning in the behavioural norms, correctional attitudes and human orientation for the prison staff and prisoners alike”.

The judges were unanimous in expressing their opinion in favour of a change in law. It was emphasised that there is a need for making the Jail Manual available to the prisoners. According to the court the decision on the necessity to put a prisoner in bar fetters under the power of Section 56 of the Prisons Act 1894 has to be made after application of mind of the peculiar and special characteristic of each case. The nature and length of each sentence or the magnitude of the crime committed by the prisoner do not seem to be relevant for the purpose. Putting prisoners in bar fetters continuously for a long period is a cruel and unusual punishment which is anathema to the spirit of the Constitution.

Prison is not only a place of confinement and deterrence but also an abode of rehabilitation and refinement. It is a revolutionary suggestion that the sentencing court has duty to visit prisons at intervals and to see that the convicts are treated according to law and in conformity with the norms of modern penological and correctional systems. There must be a procedure in the sentencing court itself for receiving complaints from convicted persons if their rights are infringed in jail. The present system of sentencing a person and forgetting him forever should change. Effective improvement in prison justice administration is possible if the judiciary has a say in the treatment of offenders in jail.

There is a well known saying in law that ‘justice delayed is justice denied’. It is implicit in the content of Article 21 because no procedure can be reasonable, fair and just which denies speedy trial to the accused. The Supreme Court in Hussainara Khatoon[15] pointed out that speedy trial, though not a specifically enumerated fundamental right, can be claimed by prisoners. The state is under a constitutional obligation to take all steps necessary for ensuring the constitutional right to speedy trial to the accused and the state cannot be permitted to deny this right on the ground that it has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. The court in its anxiety to protect and enforce this right of speedy trial did not remain content with mere formulation and recognition of right but proceeded further to add that the court is entitled to enforce this right by issuing necessary directives to the state which may include taking of positive action calculated to ensure speedy trial. The court thus adopted an activist approach and took positive steps.

Furthermore, in Khatri v. State of Bihar[16] the Supreme Court laid down that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure a person accused of an offence and it is implicit in the guarantee of Article 21.

Conclusion

Judicial extension into the prison administration is not a prohibited thing at present. On the
other hand, the interference is necessary and welcome to check arbitrary actions of jail authorities. Habeas corpus powers and administrative measures are the pillars to the implementation and realization of prisoners’ rights in our country.

Some of the pronouncements by the Indian Supreme Court, which emphasize the rights of convicts and the need for treating them in conformity with those rights, are notable milestones in the path towards finding new goals of a correctional and reformative prison justice administration. They do not let the prison gates remain closed for ever against a system of humane treatment of prisoners and against effective judicial supervision of such a system.

The present trend is that even after conviction, the judiciary has an effective supervising role with regard to the treatment of prisoners inside the jail, to make sure that their rights are protected, implemented and realized. When, a person is put in prison he loses some of the fundamental rights like the freedom of movement, freedom to form association etc. The prisoners are entitled to claim the residuary fundamental rights even inside the prisons. The
State is under a constitutional obligation to honour and protect their rights including the right to life and human dignity.

Shivam Jain Kakadia (V-III)

[1] Sunil Batra v. Delhi Administration AIR 1980 SC 1579

[2] Maneka Gandhi v. Union of India AIR 1978 SC 597

[3] A. K. Gopalan v. State of Madras AIR 1950 SC 57

[4] State of Maharashtra v. Prabhakar Pandurang AIR 1966 SC 424

[5] D. B. M. Patnaik v. State of Andhra Pradesh AIR 1974 SC 2093

[6] Kharak Singh v. State of U.P. AIR 1963 SC 1295

[7] Charles Sobraj v. Superintendent, Central Jail, Tihar AIR 1978 SC 1594

[8] “Prison Justice and the Court” G. Sadasivan Nair [1978] CULR 336

[9] Francis Coralie Mullin v. The Administrator, Union Territory of Delhi AIR 1978 SC 1594

[10] “Human Rights in the Criminal Justice System” P.N. Bhagwati, 27 JILI (1985) 1 at p.25.

[11] In 1980 the Government of India appointed Mulla Committee on Jail Reforms. Justice A.N. MulLa was the
Chairman of the Committee. Ismail Committee was appointed in Tamil Nadu.

[12] Sunil Batra (I) v. Delhi Administration, A.I.R. 1978 S.C. 1695; Sunil Batra (II) v. Delhi Administration, A.I.R. 19780 S.C. 1579

[13] L. Vijayakumar v. Public Prosecutor AIR 1978 SC 1485

[14] supra

[15] Hussainara Khatoon v. Union of India A.I.R. 1979 S.C. 1360

[16] Khatri v. State of Bihar A.I.R. 1981 SC 928

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