THE RIGHTS OF THE PRISONERS AND ARRESTED PERSONS IN INDIA: A COMPREHENSIVE LEGAL OVERVIEW BY - NIKITA BEGUM TALUKDAR
THE RIGHTS OF
THE PRISONERS AND ARRESTED PERSONS IN INDIA: A COMPREHENSIVE LEGAL OVERVIEW
AUTHORED BY - NIKITA
BEGUM TALUKDAR
Introduction
The
All-India Jail Reform Committee (1980–83) recommended various rights for
prisoners and measures for maintaining prison discipline. This led to the
gradual adoption of practices aimed at encouraging discipline through positive
inducements, such as remission of sentences for good conduct, payment of wages
for labor, the provision of facilities like canteens, and the granting of
privileges such as writing letters and meeting friends and relatives. Notably,
many of these so-called “benefits” have now been recognized by the judiciary as
fundamental rights of prisoners. It is well-established that a criminal
conviction does not strip a person of their humanity or reduce them to a
non-person. Consequently, prisoners are entitled to most rights available to
individuals outside the prison system, albeit subject to certain legal
restrictions. It is regrettable that a progressive country like India has yet
to codify the rights of prisoners. Nevertheless, it cannot be denied that the
Hon’ble judiciary has recognized an extensive list of prisoners’ rights, which
all authorities are expected to uphold in the absence of formal legislation.
However, in practice, these rights often remain confined to paper, with prison
authorities seldom adhering to them.
Both
the Supreme Court of the United States and the Supreme Court of India have
affirmed that prisoners remain human beings, natural persons, and legal
persons. Their status as prisoners does not negate their humanity or legal
identity. Therefore, any major punishment imposed within the prison system must
adhere to procedural safeguards, ensuring that prisoners’ rights are not left
to the arbitrary discretion of prison authorities.
In
this paper the author has explained the various rights of a prisoner and
arrested persons in India under the Constitution of India and the new Criminal
Codes 2023 which are the Bharatiya Nyaya Sanhita, 2023 and the Bhartiya Nyaya
Suraksha Sanhita, 2023.
Rights of the
Prisoner’s and arrested persons under the Constitution of India and New
Criminal Codes
The
Supreme Court has ruled that the conditions of detention must not result in the
deprivation of fundamental rights.
Prisoners retain all the rights enjoyed by free citizens, except those
necessarily restricted as a consequence of confinement. Furthermore, the rights
available to prisoners under Articles 14, 19, and 21, though limited in scope,
are dynamic and expand to meet the demands of evolving circumstances. “Article
21”, when read with “Article 19(1)(d) and (5)”, has a broader application than
its colonial origins, drawing its interpretation from the advancing standards
of decency and dignity that signify societal progress. The reasonableness of
restrictions under Article 19(5) and the avoidance of arbitrary discrimination
under Article 14 are fundamental to ensuring justice and equity within the
framework of prisoners’ rights.
The
Bharatiya Nyaya Sanhita (BNS), 2023, and the Bharatiya Nagarik Suraksha Sanhita
(BNSS), 2023, have introduced several provisions that impact the rights of
prisoners in India.
The
rights of the prisoners and arrested persons are mentioned below:
I.
Right to life and personal liberty
:
The
Hon’ble Supreme Court has adopted annotation of Article 21 and provided
connotation of “life” given by Field J. that “life means more than mere
animal existence. The inhibition against its deprivation extends to all those
limbs and faculties by which life is enjoyed. The provision equally prohibits
the mutilation of the body by the amputation of an arm or leg, or the putting
out of an eye or the destruction, of any other organ of the body through which
the soul communicates with the other world.” Article
22 of the Indian Constitution mandates that any detained person must be
informed of the reasons for their arrest.
Section
47 of the BNSS reinforces this by requiring that every police officer or person
arresting someone without a warrant must promptly communicate the full
particulars of the offence or other grounds for the arrest. The BNSS stipulates that an arrested
individual should be examined by a medical officer in the service of the
Central or State Government, or if unavailable, by a registered medical
practitioner, soon after the arrest.
II.
Right to live with human dignity:
In a progressive interpretation of Article 21, the Hon’ble Supreme
Court has held that the "right to live" extends beyond mere physical
survival. It encompasses the right to live with dignity and humanity,
reflecting a broader and more inclusive understanding of life. Expanding on this concept, the Hon’ble Supreme Court held that the
term ‘life’ encompasses more than mere existence. It includes the basic
necessities of life, such as adequate nutrition, clothing, shelter, and access
to facilities for reading, writing, self-expression, free movement, and social
interaction with others. Subsequently, the
Supreme Court expanded the interpretation of ‘life’ under Article 21, asserting
that it is not confined merely to the duration of existence. The Court held that
even in cases of execution by the death penalty, the right to life is violated
if the deceased’s body is not lowered for half an hour after the issuance of a
death certificate by the doctor.
The
Supreme Court emphasized that the right to life is a fundamental human right
guaranteed to every individual under “Article 21”, and even the State has no
authority to infringe upon it. The Court further affirmed that a prisoner,
despite being confined in jail, remains a human being and retains all
fundamental rights, including the right to life.
It
is now beyond dispute that convicts are not entirely stripped of their
fundamental rights. However, the liberty of a prisoner is inherently restricted
by the conditions of confinement. This makes the preservation of the limited
freedom they retain all the more significant.
III.
Right to health and medical
treatment:
The Hon’ble Supreme Court, in a
series of judgments, has recognized the "right to healthcare" as an
integral component of Article 21 of the Constitution. Article 21 imposes a duty
on the State to preserve life, and a government doctor, as an agent of the
State, is obligated to provide medical assistance to save lives. This
obligation extends to all doctors, whether in government or private practice,
who are professionally bound to use their expertise to protect life. No law or
State action can justify avoiding or delaying the fulfillment of this critical
duty. Given its absolute and paramount nature, any procedural law or statutory
provision that interferes with the discharge of this obligation cannot stand
and must yield to the higher duty of preserving life.
The
right to medical treatment is a fundamental human right. The Gujarat High Court
directed jail authorities to ensure proper care for ailing convicts. The
petitioners, who were convicted and incarcerated in the Central Prison,
Vadodara, suffered from serious health issues and were denied proper and timely
medical treatment due to a lack of jail escorts required to transport them to
the hospital. The Gujarat High Court expressed its shock over the situation and
promptly summoned the I.G. Prison and the Additional Chief Secretary, both of
whom issued necessary directives. The Court further held that negligent
officers would be held personally accountable for the oversight.
IV.
Right to speedy trial:
The
Supreme Court ruled that the right to a speedy trial is a fundamental right
under Article 21 of the Constitution. It stated that delays in the disposal of
cases amount to a denial of justice. Therefore, the court is obligated to take
appropriate measures to ensure prompt trials and the swift resolution of the cases.
The
Hon’ble Supreme Court has outlined detailed guidelines for ensuring the speedy
trial of an accused in a criminal case but chose not to set a fixed time limit
for the trial of offenses. It emphasized that the prosecution bears the
responsibility to justify and explain any delays. The Court affirmed that the
right to a speedy trial, as derived from Article 21, applies at all stages of legal
proceedings, including investigation, inquiry, trial, appeal, revision, and
retrial. Additionally, the Court stated that an accused cannot be denied the
right to a speedy trial simply because they failed to request it.
V.
Right to free legal aid:
A
significant portion of the prison population in the country comprises
undertrials and individuals whose trials are yet to begin. Therefore, access to
courts and legal resources is crucial to ensuring a fair trial for these
inmates, as mandated by Article 21 of the Constitution. The Supreme Court
strongly criticized the failure of Sessions Judges to appoint counsel for
impoverished accused individuals in serious cases. It emphasized that
defendants should never be denied legal aid from competent counsel. This obligation
includes providing the accused with the necessary legal documents and ensuring
the availability of counsel for their defence.
The
Supreme Court ruled that free legal assistance at the State's expense is a
fundamental right for any person accused of an offense that could endanger
their life or personal liberty. In
considering the right of prisoners to consult with a lawyer, the Court
emphasized that a detainee’s right to consult a legal advisor of their choice
is not limited to criminal proceedings. It extends to securing release from
preventive detention, filing writ petitions, or pursuing any civil or criminal
matter. The Court also stated that prison regulations cannot impose
unreasonable or arbitrary procedures to restrict or regulate meetings between a
detainee and their legal advisor.
VI.
Right to Consult and to be Defended
by Legal Practitioner :
Article
22(1) guarantees the right to secure the services of a lawyer, but it does not
mandate the State to provide legal aid. Instead, it obligates the State to
ensure that reasonable facilities are available for an arrested or detained
person to engage a lawyer of their choice.
The
right to consult with a lawyer arises immediately upon arrest.
In
Janardhan Reddy v. State of Hyderabad,
one of the key arguments raised by the petitioners was that in criminal cases
Nos. 17 & 18 of 1949, the accused were denied a fair trial because they
were not given the opportunity to instruct counsel, leaving them undefended
throughout the trial. It was argued that the entire trial was invalid due to
the denial of the right to be defended by a lawyer. Under the Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS 2023), the right of an accused person to legal
representation is articulated in Section 340, which states: “Any person
accused of an offence before a Criminal Court, or against whom proceedings are
instituted under this Sanhita, may of right be defended by an advocate of his
choice.”
This
provision ensures that individuals facing criminal charges have the unequivocal
right to select and be represented by legal counsel of their choosing, thereby
upholding the principles of fair trial and justice.
Additionally,
Section 341 of BNSS 2023 addresses legal aid, stipulating: “Legal aid
to accused at State expense in certain cases.” This section mandates the
provision of legal assistance at the state’s expense for accused individuals
who may not have the means to secure private legal representation, ensuring
equitable access to justice for all.
In
Nandini Satpathy v. P.L. Dani the
Supreme Court observed that Article 22(1) ensures that no person arrested shall
be denied the right to consult an advocate of their choice. This right,
however, extends beyond those under arrest or in custody, as it is fundamental
to the rule of law that anyone facing near-custodial interrogation should have
access to legal counsel. The Court further emphasized that the right against
self-incrimination is best protected by granting the accused the opportunity to
consult a lawyer. The presence of a lawyer, in certain circumstances, is
constitutionally guaranteed and serves as a safeguard to ensure the right to
silence, as outlined in Article 20(3). In this context, the Court referred to
the Miranda decision, which mandated that if an accused person requests
legal assistance during interrogation, it must be provided before questioning
proceeds.
In
Joginder Kumar v. State of U.P the
Supreme Court affirmed that an arrested person has the inherent right, under
Articles 21 and 22 of the Constitution, to have someone informed of their
arrest upon request and to privately consult with a lawyer. The Court
emphasized that an arrest cannot be made solely because it is within the police
officer's legal authority. While the power to arrest exists, the officer must justify
the necessity of the arrest. The Court pointed out that arrest and detention in
police custody can severely damage a person's reputation and self-esteem.
Therefore, no arrest should occur unless the police officer has reasonable
grounds, based on investigation, to believe that the complaint is genuine and
that the arrest is necessary due to the person’s involvement in the crime.
The
Supreme Court laid down the following requirements:
- An
arrested person, upon request, has the right to have a friend, relative,
or any person who is known to them, informed about the arrest and the
location of detention, as far as practicable.
- The
police officer must inform the arrested person of this right when they are
brought to the police station.
- An
entry must be made in the police diary, recording who was notified of the
arrest.
The
protections against the abuse of power must be derived from Articles 21 and
22(1) of the Constitution and enforced rigorously. The requirements outlined in
Joginder Kumar v. State of U.P must be adhered to in all cases of arrest
until appropriate legal provisions are enacted. Section 56(1) of the Police and
Criminal Evidence Act, 1984, in England, serves as a comparative reference. In
Joginder Kumar’s Case, there was a noticeable shift in judicial focus toward
ensuring the constitutional rights of arrested persons. A new interpretive
approach to Article 22(1) was adopted, with Article 21 being used as a guiding
framework to reinforce these protections.
VII.
Protection against instruments of restraint:
Instruments
of restraint, such as handcuffs, chains, irons, and straitjackets, must never
be used as a form of punishment. Additionally, chains or irons should not be
employed as restraints. Other forms of restraint may only be used under the following
conditions:
(a)
“As a precaution to prevent escape during a transfer, with the restraints
removed when the prisoner appears before a judicial or administrative
authority. (b) On medical grounds, as directed by the medical officer. (c) By
order of the director, if other methods of control fail, to prevent the
prisoner from harming themselves, others, or damaging property. In such cases,
the director must immediately consult the medical officer and inform the higher
administrative authority. The use and methods of applying instruments of
restraint shall be determined by the central prison administration, and they
must not be applied for any longer than absolutely necessary.”
VIII.
Handcuffing of undertrial prisoner
is unconstitutional:
In
a majority judgment, Hon'ble Justice Krishna Iyer ruled that the
provisions of the Punjab Police Rules, which mandated the handcuffing of every
undertrial accused of a non-bailable offense punishable by more than three
years of imprisonment, were in violation of Articles 14, 19, and 21 of the
Constitution of India. As a result, these provisions were declared
unconstitutional.
In
another case, the Supreme Court addressed a challenge by an undertrial prisoner
who was placed in bar fetters and kept in solitary confinement by the
Superintendent of the jail. The Court deemed this action unusual and contrary
to the spirit of the Constitution, declaring it a violation of the right to
freedom of movement.
The Court directed the Government to take appropriate action against the escort
party responsible for this unjust and unreasonable treatment of the petitioner.
The
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS 2023), which replaces the
Criminal Procedure Code (CrPC) of 1973, introduces specific provisions regarding
the use of handcuffs during arrests. Section 43(3) of BNSS permits
police officers to use handcuffs during the arrest of a person or while
producing such person before a court, considering the nature and gravity of the
offence.
IX.
Protection of custodial torture and
mal-treatment in prisons :
The
right to life and personal liberty may be limited to some extent when a person
is imprisoned, but it is not entirely revoked. Even while incarcerated,
individuals retain their fundamental rights, including the residual protections
afforded by Article 21. The State does not grant law enforcement officers the
right to take away a person's life or violate its essential aspects. If an
offender’s life is taken without following the due process of law, it constitutes
a clear violation of Article 21 of the Constitution. Similarly, an offender’s
life cannot be endangered through illegal physical abuse by jail authorities.
X.
Delay in release from jail amounts
to ‘illegal detention’:
The
Supreme Court expressed shock and concern over a disturbing case where a
person, despite being acquitted by the court, was unlawfully detained by jail
authorities for 14 years. The writ petition for habeas corpus, filed by the
petitioner seeking the release of the individual, revealed this shocking state
of affairs. The petitioner also sought compensation for the unlawful
incarceration, which resulted in the loss of 14 precious years of the
individual's life behind bars, even though he had been acquitted.
XI.
Right to compensation in case of
custodial violence :
In
response to the concerns raised by D.K. Basu through a letter regarding
custodial violence and deaths in police custody, the Supreme Court took the
matter seriously and treated the letter as a writ petition. On February 9,
1987, the Court issued a notice to the State regarding the issue. The Court
established the following principles:
- The
rights guaranteed under Article 21 of the Constitution cannot be denied to
convicts, undertrials, detenues, and other prisoners in custody, except in
accordance with the procedure established by law.
- Any
form of torture or cruel, inhuman, or degrading treatment falls within the
scope of Article 21, whether it occurs during investigation or otherwise.
XII.
Right to compensation in case of
custodial death:
The
Supreme Court observed that due to gross negligence by the jail authorities, an
undertrial prisoner, 'R', suffered serious injuries within the jail, which
ultimately led to his death. The petitioner, 'M', the mother of the deceased,
stated that 'R' was the sole breadwinner for the family, and his death left her
as a helpless widow with three sons to support. The Court held that it was the
duty of the jail authorities to protect the life of an undertrial prisoner. In
this case, the authorities failed to ensure the safety and security of 'R'.
Consequently, the Court directed the State to pay Rs. 2,50,000 to the
petitioner within six weeks.
Conclusion
In
conclusion, the rights of prisoners, undertrials, and detainees in India have
evolved significantly through judicial intervention, particularly under Article
21 of the Constitution. The Supreme Court has consistently emphasized that
prisoners retain their fundamental rights, including the right to life, dignity,
and protection from inhuman treatment, even while incarcerated. Cases
addressing custodial violence, denial of medical treatment, lack of legal
assistance, and unlawful detention highlight the need for continued reforms
within the prison system. Despite the judicial recognition of these rights,
practical implementation remains a challenge, with many instances of neglect
and abuse still being reported.
The
legal system has rightly identified the need for the state to provide
safeguards, including the right to a speedy trial, medical care, legal aid, and
protection from torture or mistreatment. However, the lack of codified laws on
prisoners’ rights and the inadequate resources allocated to address these
issues continue to hinder meaningful change.
Although
judicial precedents hold greater authority than legislation and are binding on
all courts in India, the absence of codified prisoner rights creates
significant gaps in awareness and implementation. It is strongly felt that
these rights should be systematically codified to ensure greater awareness
among state authorities and prisoners alike. Furthermore, many prisoners are
either unaware of their rights or do not know how to exercise them effectively.
Kharak Singh v.
State o f UP, AIR 1963 SC 1295.”
“Maneka Gandhi
v. Union o f India, AIR 1978 SC 597, and followed m Francis Coralie v. Delhi
Administration, AIR 1981 SC 746
Francis Coralie
v. Delhi Administration, AIR 1981 SC 746
“State of Andhra Pradesh v. Challa Ramkrishna
Reddy, AIR 2000 SC 2083.”
“DBM Patnaik v State o f Andhra Pradesh, AIR
1974 SC 2092, and Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
Parmannd Katara v. Union o f India, AIR 1989
SC 2039 : (1989) 4 SCC 286; also see Consumer Education and Research Center v.
Union o f India, (1995) 3 SCC 42; Kishore Brothers Ltd v. Employee’s State
Insurance corporation, (1996) 2 SCC 682.
“Kadra Pahadiya v. State of Bihar, AIR 1983 SC 1167.”
“Rachod Mathur
Waswa v. State o f Gujarat, AIR 1974 SC 1143
Sukdas v.
Arunachal Pradesh, AIR 1986 SC 991.”
“Francis Corahe v Delhi
Administration, AIR 1981 SC 746
