This article has been written by Shohom Roy, from Symbiosis Law School, Noida. This article examines the extent to which the freedoms guaranteed under Article 21 of our Constitution are exercised by people in prisons.
The Indian legal framework is governed by the principle that a sentence of imprisonment is justified only if it ensures the protection of society from crime. The prisons must act as centers of reformation that influence and guide individuals towards a law-abiding and self-reliant lifestyle during the years of imprisonment. The law mandates that since the incarceration of an individual deprives him of the right to liberty and self-determination, the prison system must not intensify the restrictions that are inherently present in the process of imprisonment. Article 21 of the Constitution guarantees the right to live with ‘dignity and honour’ and thereby safeguards every individual from inhuman, cruel or degrading treatment that offends the very idea of humanity. The extension of these fundamental rights to the prisoners along with the safeguards against cruelty in prison through the implementation of the Prisons Act, 1894 paints a rosy picture of the prison system of India. However, the actual living conditions of prisoners are inhumane. In spite of legislative action and judicial intervention by the Courts of India, the treatment of prisoners by state authorities is worse than many countries, lacking safeguards for civil liberties. Furthermore, a great majority of prisoners are subjected to harsh living conditions as compared to others.
Right to legal aid
Article 22 of the Constitution mandates that a person must be presented before a magistrate within 24 hours of his arrest or detention in custody. The magistrate might allow police custody for not more than 14 days which may be prolonged according to the directions of the judiciary. The detention of an arrested individual for an alleged crime whose punishment is under 10 years cannot exceed 60 days. These legal procedures are avoided by the state authorities under the Terrorist and Disruptive Activities Act, 1987, which was later replaced by the Prevention of Terrorist Activities, 2002. The law protects people from unreasonable detention through the legal mechanism of statutory bail. However, these safeguards are meaningless without a right to legal aid that allows immediate remedy in case of violation of fundamental rights through Article 32 and Article 226 of the Constitution.
Judges like Justice Krishna Iyer and Justice P.N Bhagwati have championed the cause of human rights and extended various safeguards to protect the interest of individuals in prison. In the case of M.H Hoskot v State of Maharashtra (1978), Justice Krishna Iyer brought the right to legal aid within the ambit of Article 21. The Court established that a defendant shall have access to the legal defense which must be provided by the government if the defendant is unable to bear the costs of appointing a legal counsel. The courts can exercise their powers of ensuring complete justice under Article 142 in light of Article 21 and Article 39A, to appoint legal counsel with the consent of the accused individual.
The Legal Services Authority Act, 1987 was enacted to provide free legal aid. However, the legislation suffers from various flaws and has been unable to provide every citizen with legal aid. In light of the movement for legal aid, the Committee for Implementing Legal Aid Schemes was constituted under the leadership of Justice P.N Bhagwati. The Committee drafted various model schemes that would act as guidelines for the states to formulate their respective legal aid and advice programs. However, most of these recommendations had never been implemented by the government authorities. The current system of panels of voluntary lawyers who represent individuals unable to appoint a lawyer themselves cannot cater to the needs of society. The voluntary nature of the work and the negligible amount of honorarium granted to the lawyers, dissuade them from participating in legal aid panels. For example, a report showed that only 165 junior lawyers among the 10,000 members of the Bar participated in the legal aid program in the Sessions Court of Bombay.
The abuse of power by government authorities has further crippled the movement for legal aid. Magistrates allow people appearing before the court with a legal representative to be remanded to police custody without examining the need for further investigation and questioning the accused by the police. Similarly, police officers try to violate the safeguards provided in Article 22 by not reporting an arrest immediately. In some cases, the accused individuals are detained beyond the legally permissible time limit. Without effective legal aid machinery in place, the right to life and personal liberty granted by Article 21 would be incomplete.
Right to liberty
The initial objective of imprisonment of individuals was to physically confine them to a certain specified place and restrict their interaction with society to deter the occurrence of crime. However, with a growth in global criminal jurisprudence, imprisonment may serve punitive, deterrence, reformative or rehabilitative purposes within society. Various human rights legislation and the intervention of the judiciary have facilitated a change in the imprisonment system and created obligations for the State to protect the people in prisons. Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty which can only be abrogated according to the procedure established by law. The expression ‘personal liberty’ must be interpreted in a broad sense.
In Bolling v. Sharpe (1954), the Supreme Court of America opined that the freedom of liberty cannot be narrowly construed to be the mere freedom from bodily restraint but includes all freedom to pursue all kinds of legally permissible activities. In AK Gopalan v. State of Madras (1950), the Supreme Court of India held that the Right to Personal Liberty under Article 21 includes the right to be free from all restrictions and encroachments that are imposed on an individual through direct or indirect means. The right to expedited trial and the right to bail are corollaries of the right to personal liberty.
The usage of the terms ‘jail’ and ‘prison’ interchangeably indicates the Indian attitude to group ‘undertrials’ or those awaiting trials with the convicted criminals. These ‘undertrials’ constitute about two-thirds of the prison population in India. The plight of the huge number of men, women, and children awaiting trial in the court of law was first highlighted in the case of Hussainara Khatoon v State of Bihar (1979). Justice P.N Bhagwati expressed anguish at the shocking state of affairs regarding the administration of justice. People charged with trivial offences that would attract light sentences of not more than a year were incarcerated for periods ranging from three to ten years. These people languished within the prison walls while being deprived of their fundamental rights due to a highly ineffective bail system until they were freed years later. Similar decisions were taken by the Apex Court in the cases of Mathew Areeparmtil and Ors v. the State of Bihar and Ors (1984); Raj Deo Sharma v. the State of Bihar (1998); Shaheen Welfare Association v Union of India and Ors (1996). However, even now, more than 20,000 bail applications are pending before the Patna High Court. The vacant seats in the judiciary coupled with the overburdening number of cases result in the maladministration of justice. Furthermore, lower courts have been reluctant to grant bails due to the apprehension that a pluralistic approach may entail criticisms from the High Court. Thus, exercising the right to an expedited trial and the right to seek bail is still difficult within India’s current criminal law framework.
Inequalities and distinctions
In most democratic countries, prisons are thought to be leveling institutions where the inmates are segregated depending on the nature of the crime committed, conditions of imprisonment, or their behaviour in the prisons. The Constitution of India strives to create a society of equals and guarantees equal treatment before the eyes of law under Article 14. Furthermore, any kind of discrimination has been prohibited by law, However, special privileges are given to the minority of prisoners who are economically and financially influential despite the nature of crimes committed as compared to the greater majority of prisoners from humble backgrounds. In certain cases, political prisoners are treated as privileged elites within the imprisonment system with access to many amenities that are not provided to the other inmates.
The prison systems in India are based on a colonial piece of legislation, i.e., the Prisons Act, 1894. Although several prison reform commissions have advocated the dire need to change the existing framework, except for a few states, no legislative action has been taken to give effect to these recommendations.
The All India Committee for Jail Reforms, headed by Justice Anandh Mulla, observed that the majority of prisoners are from the underprivileged sections of society. Those belonging to the upper and middle class can afford legal counsels and thereby are usually more successful in getting bail as compared to those who lack the means to appoint a lawyer.
One of the evils of the colonial system of imprisonment that is still alive within the walls of the prisons in India is the classification system. Inmates are divided into categories of A, B, and C. Those belonging to categories A and B are the minority class, who, by social status, education, or habit of life, have been accustomed to a superior lifestyle whereas the majority class belongs to category C. Due to the degrading classification system within the prisons, those belonging to Class A and B receive the food of good nutritive value, access to newspapers and various other amenities which are not provided to the poor, uneducated or low caste people in Category C. This is a serious violation of the right to equality and the right to be protected from discrimination. In certain cases, the upper categories are exempted from performing menial tasks and restraints like handcuffs and irons whereas the inmates from the lower categories receive the food of low quality and are sometimes deprived of even the basic necessities of life guaranteed under Article 21. This classification system is supported by state authorities in charge of handling the prisons. These corrupt officials demand pay-offs for designating inmates to a category that would provide access to better amenities. Some prisoners appoint private counsel that ensures that their clients are accorded with privileges in the prison. Thus, in a country like India that criminalizes untouchability and other kinds of discrimination while uplifting the socially backward sections through reservation mechanisms, the resources and lineage of a prisoner play an essential role in his life within the prisons.
The concept of “convict-officers” is a product of the colonial imprisonment system and should be abolished for good. Under this system, the Superintendent of a prison appoints three grades of convicts, namely: “convict watchmen”, “convict overseers” and “convict-wardens”, based on the time spent in incarceration. These convict officers perform the functions of prison guards and enjoy many privileges as compared to the rest. The inmates are guaranteed the basic necessities of life under Article 21. However, these convict officers abuse the power given to them and withhold food supplements and even blankets during the winter. The inmates are called upon to serve these convict officers or perform sexual services for them. The fundamental rights guaranteed under Article 21 languish in the dark and those coming from the underprivileged sections of the society are left to live in inhumane conditions within the prisons.
Lack of protection from torture
Torture in prisons and lock-ups is regarded as a routine procedure to extract confessions and information about the alleged crimes. The torture inflicted by police officers is euphemistically referred to as “third degree”. The term is derived from freemasonry, where the third degree refers to the highest degree or a master mason. In Indian prisons, it refers to the highest degree of questioning the accused. Article 21 of the Indian Constitution mandates that a person’s right to life and personal liberty can be suspended only according to the procedure established by law. The protection of “life” should not be interpreted as protection from death only. In the case of Munn v Illinois (1876), the Supreme Court of the USA held that ‘life’ is more than mere animal existence. It includes all those provisions and faculties by which life is enjoyed. Therefore, the protection of life extends to the prohibition of mutilation of the body by amputation of an arm or leg, destroying any organ of the body or any faculty by which the soul interacts with the outer world. However, time and again, reports of deaths in police custody flash across newspapers and other media channels. In the case of Sunil Batra v Delhi Administration (1979), the Court held that corruption and bribery to the point of barbarity amongst the state empowered authority were rampant. Although post-mortem examinations are carried out, it is rare for forensic experts to certify that the death was caused due to inhumane treatment and torture in police custody and not due to natural causes. While in some countries, torture is used by state authorities to extract a confession or to obtain a guilty plea. Sometimes torture is used as a tool to obtain information from political prisoners regarding some real or imagined conspiracy. However, in India, extra-judicial confessions are inadmissible at trial. Every citizen is guaranteed protection against self-incrimination under Article 20(3) of this constitution. The law ensures that the abuse of power by police officers does not lead to a gross miscarriage of justice. While coercive methods may be used to obtain information regarding accomplices involved in the alleged crimes, it still does not justify the use of ‘third-degree’ questioning. State authorities who are supposed to be the guardians of civil liberties are those who violate the fundamental rights of the citizens. Custodial torture is a naked violation of human dignity and violates some of the fundamental human rights accorded to every individual within this country. The extra-judicial killings in the form of encounters or “disappearance” by the police are another source of grave injustice. Suspected individuals are denied the right to defend themselves and are killed without following the procedure mandated by law. The risk is higher for women in prisons since they face a particular danger of custodial rape.
Solitary confinement also referred to as “the hole” in jails, has been condemned globally as an archaic and barbaric form of torture that could cause severe damage to the inmate. In the recent case of State Of Uttarakhand v. Mehtab S/o Tahir Hassan (2018), the Uttarakhand High Court abolished the system of keeping death row convicts in isolation after their sentencing. The court further opined that the time spent in isolation should be restricted to a maximum of 2-3 days and should be done only after the person has exhausted every sort of legal relief available in the country. The law mandates that an arrested person or undertrial individual should not be subjected to handcuffing in the absence of justifying circumstances. The use of ball fetters and handcuffing is a humiliating punishment. It violates the right to freedom of movement under Article 19 and the right to live with dignity and honour under Article 21. The use of such restrictions should be reported only when there is no other way of ensuring that the prisoner while being transported from one place to another, could not break free.
Lack of facilities for healthcare and welfare
The All India Jail Manual Committee, in the late 1950s, reported that overcrowding in Indian jails is a major problem. Cells and barracks that were meant for prisoners were used as storerooms, godowns, and workshops by prison authorities. The originally authorized accommodation of the prison was shrinking whereas the daily average population and the total admissions were significantly increasing. Today, Indian prisons are extremely overcrowded with the majority awaiting trial at a court of law. The lack of sanitation facilities, coupled with the absence of qualified personnel to deal with mental problems in prison hospitals, results in a dearth of healthcare and welfare facilities. An improvement in prison conditions would lead to human and sensible prison life. Physical and psychological torture from overcrowding, stinking toilets, lack of proper food and water supply, restrictions on movement, parading of women through the men’s ward for lack of proper separation, nonproduction of undertrials in courts, inadequate medical facilities is not only due to the malfeasance of the prison staff but due to the neglect of the statutory authorities in charge of prisons. There is a gross violation of human rights and the right to live with dignity and honour within these prisons.
Since the first case was reported in Wuhan, China the spread of the coronavirus had been unimaginable. The COVID-19 pandemic is an unprecedented global medical crisis. Decongestion of jails in India to fight the spread of the virus and implement strict social distancing measures could not achieve their intended targets. According to the Nelson Mandela Rules, access to health and medical care is of utmost importance and cannot be denied on any grounds. The arbitrary pardoning of prisoners while leaving vulnerable and low-risk offenders in prisons violates the right to life under Article 21 of the Indian Constitution. The release of under-trial prisoners and the provisions for proper medical care should be provided to every individual irrespective of their social status, education, financial capabilities, nature of the crime committed.
Right to work
The concept of rigorous labor during imprisonment was implemented for reformative purposes and not as a punishment. The intensity of labor depended upon the nature of crime and the duration of imprisonment. Prisoners are chosen for the jobs for which they are well suited by prison officials. The Supreme Court judgment in Dharambir & Anr v. State of Uttar Pradesh (1979) created a judicial precedent by directing prison authorities to engage a convict in agricultural labor since the person was well acquainted with the agricultural sector. The law recognizes the right of the state to employ prisoners sentenced to rigorous imprisonment to do hard labor even without their consent, But the activities should not be some meaningless work, and no form of punitive, repressive, or afflictive work should be given to the inmates.
However, a major issue arises regarding improper remuneration. The state had contended that a person due to the commission of a crime is always in debt to society and bears an obligation to compensate society. Since it is a reformatory practice, it should be regarded as a process of inculcating earning habits and self-dependency. Moreover, it was contended that the income earned from his work should be adjusted against the expenses borne by the state while providing necessities to the prisoners. However, forcing an individual to work without remuneration is an instance of “forced labor”, which is in contravention with Article 23 and Article 21 of the Constitution. The law should not discriminate between prisoners and free men and therefore, the principle of payment of minimum wages has been extended to prisoners. The application of the Minimum Wages Act, 1948 to the prisons has resulted in a much-needed reform in the prison system.
The Supreme Court, in the case of Mohammad Giasuddin v State of Andhra Pradesh (1977), has held that the provision for minimum wages should be applied retrospectively. The payment of minimum wages is done either through the direct transmission to the prisoner or through a common fund for this purpose. A portion of the remuneration is paid as compensation to the victims of the crimes for which the inmates have been convicted. However, the class system and the severe oppression from the prison authorities result in forced labor. The inmates are deprived of their wages and are subjected to hard labor, depending on their social status, education, or financial capabilities. As long as there is no effective legal framework within which the prison administrations are held accountable, the fundamental right guaranteed under Article 21 would be withheld from the prisoners.
A high powered committee formed by the Supreme Court of India to decongest jails and prevent the spread of COVID-19 recommend the release of prisoners on interim bail for 90 days, under a “Personal Bond” for undertrial inmates facing civil charges and senior citizens who are in custody for three months or more and facing trial in cases for which the maximum punishment would be of 10 years or less. However, the delay in implementation of the bail orders by governments made the Apex Court recommend a “secure, credible and authentic” channel for transmission of the orders for execution to the prison authorities directly. The innovative scheme named FASTER (Fast and Secure Transmission of Electronic Records) would result in the delivery of orders from District Courts, High Courts, and the Supreme Court to the concerned prisons through a digital platform. The ambit of the rights guaranteed under Article 21 of the Indian Constitution, read with the Universal Declaration of Human Rights, includes the “right to conjugal visits” and the “right to procreate” to prisoners. In the case of Jasvir Singh & Anr. v. the State of Punjab and Ors (2020), the Court directed the jail authorities to allow the petitioners to stay together for the sake of procreation. Similarly in another case, the Court stressed the importance of family bonds and relationships with spouses for the reformation of a prison inmate, while establishing that conjugal rights of prisoners is a very important aspect of the right to life under Article 21.
There is a dire need to introduce a complete reformation of the prison system in India. Awareness regarding the rights of the prisoners and increased accountability for the actions of the state empowered authorities could curb the abuse of power and exploitation of people. The fundamental rights granted to every individual are sacrosanct and should not be violated irrespective of the circumstances of the person unless according to the procedure established by law. Therefore, without a complete reformation of the prison systems and effective machinery responsible for safeguarding the rights of the individuals within the prison, the fundamental right to life and personal liberty under Article 21 shall forever be imprisoned.
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