Human rights

Legal Rights of Inmates (In Prisons)

Legal Rights of Inmates

Who is an inmate ?
• Definition as per Wharton’s Law Lexicon – An
inmate is a person confined in a prison, hospital or
other institution.
• Inmates are of two types –
1. Inmates of the police lock-ups – They are
of two types –
– Those who are in police custody remand,
– Those who are in the custody of the police for
preventive detention u/sec 151 of Cr.P.C.

Cont..


2. Inmates of jails or prisons – They are of four
– Those who are in judicial custody remand,
– The under-trials,
– The convicts, and
– The detenues undergoing preventive detention under
various enactments such as MPDA, COFEPOSA, etc.


• Legal rights of the inmates –
• In India, the inmates are considered to be
the basic indicator of Human Rights violations.
The allegedly insufficient accommodation, indiscriminate
handling of offenders, unhygienic conditions,
substandard water supply and insufficient food are some
of the general contentions against the executive
machinery in this respect.

Cont..


• Globally, the change in the trend of treating inmates
as out-casts to treating them as human beings set in
only in the last forty years with the introduction of
the Universal Declaration of Human Rights. But in
India, the change came only in the late Seventies,
through the judgements of an activist Supreme
Court.
• With a slight difference, the legal rights of the
inmates in the aforesaid two categories are the
same.


• Legal provisions – Over a period of time post
independence, the Indian legislature has made enough
provisions for safeguarding the rights of the inmates by
way of introducing the same in Chapter III of the Indian
Constitution which deals with the Fundamental Rights of
the Citizens and also through the Code of Criminal
Procedure, 1973. Besides these, the Higher Judiciary,
with its dynamic approach, has further extended these
safeguards by laying down invaluable precedents in the
judgements of various landmark cases.


• The Constitution of India –

• Although the Constitution directly deals with the
protection against arrest and detention in certain cases
through the provisions put forth in Art 22, there is no
specific provision in the Constitution which deals with
legal rights of the inmates.

• Hence the Supreme Court has adopted an activist role
and interpreted Arts 14 (Equality before law),

Cont..


• Arts 19 ( Protection of certain rights regarding freedom
of speech, etc.) and
• Arts 21 ( Protection of life and personal liberty) in Part III
along with
• Arts 38 (State to secure social order for the promotion of
the welfare of the people),
• Arts 39 (Certain principle of policy to be followed by
State), and
• Arts 39A (Equal justice and free legal aid) in Part IV to
spell out the various fundamental rights available to the
inmates.


• Accordingly, under Art 21, the various rights of the
inmates such as -
• getting free legal aid,
• sending uncensored letters to the family members,
• to read books along with their right against torture by the
authorities,
• right to get compensation for violation of the same, etc.
have been recognized and further enforced by the Higher
Judiciary in a number of landmark cases. We would see
these cases in the slides to come.


• Article 22 – Protection against arrest and detention in
certain cases —

• No detention in custody without being informed of the
grounds for arrest.
• No denial of the right to consult and to be defended by a
legal practitioner of his choice.
• Production before the nearest magistrate within 24 hours of
arrest excluding the time necessary for the journey from
the place of arrest to the court of the magistrate and no
detention in custody beyond the said period without the
authority of a magistrate.
Cont..

• These rules do not apply to i) an enemy alien; or ii) a
person who is arrested or detained under any law
providing for preventive detention.

• Even in cases of preventive detention – a detenue shall
be communicated the grounds of his detention and he
shall be afforded the earliest opportunity of making a
representation against the order.


• Francis Coralie v. Administrator Delhi –
In this case it was held that "there is implicit
in Art. 21 the rights to protection against torture
and human degrading treatment". In other
words a convicted man is not reduced from a
person to a non-person so as to be subject to
the whim of the prison administration.


Sunil Batra v. Delhi Administration –

The trend is clearly reflected in this case too where it
was held that keeping a man 'under sentence of death'
in solitary confinement is violative of Aft. 21 and that the
bar-fetters should not be put for an unusually long
period without justification. In this case, the SC laid
down five principles. -

Cont..


– First, under-trial prisoners should be separated from
convicted prisoners.
– Secondly, hard labour is not harsh labour. Hard
labour under S. 53 of the Indian Penal Code must be
given a humane meaning.
– Thirdly, young prisoners should not be exposed to
sexually frustrated adult prisoners.
– Fourthly, the visits of the family members of the
prisoner to him should be fairly increased.
– And lastly, confinement in irons should be allowed
only where safe custody is impossible.


• Hussainara Khatoon v. State of Bihar –
it was held that where under-trial prisoners have
been in jail for periods longer than the maximum term
to which they could have been sentenced if convicted,
then their detention in jail is unjustified and violative of
Aft. 21. Developing this, it further held that the right to
speedy trial is an integral and essential part of the
fundamental right to life and liberty enshrined in
Art.21 and the courts have wide powers to direct the
state to take proper measures like setting up new
courts, appointing more judges, etc.


D.K. Basu Vs State of West Bengal.
• In this case, the Hon’ble Supreme Court has laid
down specific guidelines required to be followed by
police officers while making arrests. Most of the
rights as enunciated in Art 22 of the Constitution
and the procedure laid down in sections 41 to 60 of
CrPC, as discussed in the earlier have been
reiterated in these guidelines. The gist of these
guidelines/ principles are as follows -:

Cont..


• Police officers to carry visible and clear identification
and name tags with their designations during arrests,
interrogation, etc.
• The particulars of all such police personnel to be
recorded in a register.
• Preparation of a memo of arrest which should be
attested by at least one witness and to be counter
signed by the arrestee. The memo shall contain the
time and date of arrest.

Cont..


• Information of the arrest & detention to be given to at

least one friend or relative of the arrestee as soon as

practicable.

• The person arrested must be made aware of his right

to have someone informed of his arrest or detention.

• The above facts should be entered into the diary.

Cont..


• Medical examination of the arrestee after his arrest

to be conducted and the ‘Inspection Memo’ signed

both by the arrestee and the police officer effecting

the arrest to be prepared and its copy provided to

the arrestee. The further medical examination by a

trained doctor every 48 hours during his detention in

custody. Cont..


• Copies of all the documents including the memo of
arrest should be sent to the Magistrate for his
record.
• The arrestee may be permitted to meet his lawyer
during interrogation, though not throughout the
interrogation.
• A police control room to be provided at all district
and State headquarters and information of the
arrest to be displayed outside the same.
Cont..


•The Criminal Procedure Code, 1973

• The newly introduced provisions vide sections 41(C) & 41
(D) – Establishment of Control Rooms at State and District
level. These Control Rooms to display the names and
addresses of all the inmates in PC along with the names
and designations of the police officers who made the
arrests. Control Rooms also to maintain database of the
same. – 41 (C)



• Right of the inmate in PC to meet an advocate of his

choice during interrogation though not throughout the

interrogation. – 41 (D)

• Sec 54 – Examination of the arrested person by medical

officer. The examination of the female inmate to be done

under the supervision of a female medical officer.


• Sec 55A - duty of the person having the custody of an
accused to take reasonable care of the his health and
safety.
• sec 57 – Person arrested not to be detained for more than
24 hours without the order of the magistrate.
• sec 58 – Police to report apprehensions of the persons
without warrant, whether such persons have been
admitted to bail or not, to the District Magistrate.


It has been well established that convicts are not by
mere reason of the conviction denuded of all the fundamental
rights which they otherwise possess. For example a man of
profession who is convicted would stand stripped of his right
to hold consultations while serving out his sentence; but the
Constitution guarantees other freedoms like the right to
acquire, hold and dispose of property for the exercise of
which incarceration can be no impediment. Likewise even a
convict is entitled to the precious right guaranteed by Art. 21
that he shall not be deprived of his life or personal liberty
except according to the procedure established by law.


• Sections 73 and 74 of the Indian Penal Code leave
no room for doubt that solitary confinement is by
itself a substantive punishment which can be
imposed by a court of law. It cannot be left to the
whim and caprice of prison authorities. The limit of
solitary confinement that can be imposed under
Court‘s order is strictly prescribed by the Penal
Code.


• Jail custody is something different from custody of a convict
suffering simple or rigorous imprisonment. The purpose
behind enacting s. 366(2) of the Code of Criminal
Procedure is to make the prisoner available when the
sentence is required to be executed. Unless special
circumstances exist, even in cases where a person is kept
in a cell apart from other prisoners with day and night
watch, he must be within the sight an sound of other
prisoners and be able to take food in their company.


Absent provision for independent review of preventive
and punitive A action, for discipline or security, such action
shall be invalid as arbitrary and unfair and unreasonable. The
prison officials will then be liable civilly and criminally for hurt to
the person of the prisoners. The State will urgently set up or
strengthen the necessary infra structure and process in this
behalf it already exists in embryo in the Act.
Legal aid shall be given to prisoners to seek justice from
prison authorities, and, if need be, to challenge the decision in
Court in cases where they are too poor to secure on their own.


If lawyer’s services are not given, the decisional process
becomes unfair and unreasonable, especially because the rule
of law perishes for a disabled prisoner if counsel is
unapproachable and beyond purchase.
By and large, prisoners are poor, lacking legal literacy,
under the trembling control of the jailor, at his mercy as it were,
and unable to meet relation or friends to take legal action.
Where a remedy is all but dead the right lives only in print.
Article 19 will be violated in such a case as the process will be
unreasonable. Article 21 will be infringed since the procedure
is unfair and is arbitrary.

Human rights

Empfohlen

Empfohlen

Weitere ähnliche Inhalte

Was ist angesagt?

Was ist angesagt? (20)

Ähnlich wie Human rights

Ähnlich wie Human rights (20)

Mehr von Naveen Sihag

Mehr von Naveen Sihag (20)

Human rights