Constitutional Rights of Prisoners

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    Constitutional rights of prisoners I Less than 200 years ago, the attitude to prisons, prisoners and punishment was brutal and barbaric. Recognition of the human being in the convicted offender is an idea that has been accepted after a long struggle with the state. The Indian socio-legal system is based on non-violence, mutual respect and human dignity of the individual. If a  person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life which constitutes human dignity. Even the prisoners have human rights  because the prison torture is not the last drug in the Justice Pharmacopoeia but a confession of failure to do justice to living man. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. Article 21 of the Constitution guarantees the right of  personal liberty and thereby prohibits any inhuman, cruel or degrading treatments to any person whether he is a national or foreigner. Any violation of this right attracts the  provisions of Article 14 of the Constitution which enshrines right to equality and equal protection of law. In addition to this, the question of cruelty to prisoners is also dealt with specifically by the Prison Act, 1894. If any excesses are committed on a prisoner, the prison administration is responsible for that. Any excesses committed on a prisoner by the police authorities not only attracts the attention of the legislature but also of the judiciary. The Indian judiciary,  particularly the Supreme Court in the recent past has been very vigilant against encroachments upon the human rights of the prisoners. Right to Legal Aid  The talk of human rights would become meaningless unless a person is provided with legal aid to enable him to have access to justice in case of violation of his human rights. This a formidable challenge in the country of India’s size and heterogeneity where more than half of the population lives in far-flung villages steeped in poverty, destitution and illiteracy. Legal aid is no longer a matter of charity or benevolence but is one of the constitutional rights and the legal machinery itself is expected to deal specifically with it. The basic philosophy of legal aid envisages that the machinery of administration of justice should be easily accessible and should not be out of the reach of those who have to resort to it for the enforcement of their legal rights. In fact legal aid offers a challenging opportunity to the society to redress grievances of the poor and thereby law foundation of Rule of Law. In India, judiciary has played an important role in developing the concept of legal aid and expanding its scope so as to enable the people to have access to courts in case of any violation of their human rights. In the case of M.H. Wadanrao Hoskot v. State of Maharashtra , the Court held that the right to legal aid is one of the ingredients of fair  procedure. If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, for want of legal assistance, there is implicit in the court under article 142 read with article 21 and 39-A of the Constitution, power to assign council for such imprisoned individual for doing complete justice.Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so required, assign comp etent counsel for the prisoners defense, provided the party doesn’t object to that lawyer.   Right to Speedy Trial  Right to speedy trial is a fundamental right of a prisoner implicit in article 21 of the Constitution. It ensures  just, fair  and reasonable procedure. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less right of accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. In the case of Hussainara Khatoon(I) v. State of Bihar  , a shocking state of affairs in regard to the administration of ustice came forward. An alarmingly large number of men and women, including children are behind prison bars for years awaiting trial in the court of law. The offences with which some of them were charged were trivial, which, even if proved would not warrant punishment for more than a few months, perhaps a year or two, and yet these unfortunate forgotten specimens of humanity were in jail, deprived of their freedom, for periods ranging from three to ten years without as much as their trial having commenced. The Hon’ble Supreme Court expressed its concerned and said that:  What faith can these lost souls have in the judicial system which denies them a bare trial for so many years and keeps them behind the bars not because they are guilty; but because they are too poor to afford bail and the courts have no time to try them. One reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in  pretrial detention is our highly unsatisfactory bail system. This system of bail operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the magistrate about their solvency for the amount of the bail and where the bail is with sureties as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. In Hussainara Khatoon (II) v. Home Secretary, State of Bihar  , the Court while dealing with the cases of undertrials who had suffered long incarceration held that a procedure which keeps such large number of people behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to be in conformity with the requirement of Article 21. In Mathew Areeparmtil and other v. State of Bihar and other  , a large number of people were languishing in jails without trial for petty offences. Directions were issued to release those persons. Further the court ordered that the cases which involve tribal accused concerning imprisonment of more than 7 yrs. should be released on execution of a  personal bond. In the case where trial has started accused should be released on bail on execution of a personal bond. In case where no proceedings at all have taken place in regard to the accused within three yrs., from the date of the lodging of FIR, the accused should be released forthwith under S.169 Cr. P.C. if there are cases in which neither charge-sheet have been submitted nor investigation has been completed during the last three years, the accused should be released forthwith subject to reinvestigation to the said cases on the fresh facts and they should not be arrested with out the permission of the magistrate. In the case of Raj Deo Sharma v. The State of Bihar  , the question before the court was whether on the facts and circumstances of the case, the prosecution against the petitioner is to be quashed on the ground of delay in the conduct of trial. The petitioner has never suffered incarceration. His application for bail was ordered on the day he appeared before the Court and presented the same. Allowing the appeal Supreme Court gave the following directions: 1 . In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not, within the said period and the court can proceed to the next step provided by law for the trial  of the case. 2.  In such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit. 3.  If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in ail or not, the court shall close the prosecution evidence on completion of three years from the date of recording the  plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case. In Shaheen Welfare Association v. Union of India and others , the court while delivering its judgment said that: In spite of such review, from the figures which we have cited above, it is clear that there is very little prospect of a speedy trial of cases under TADA in some of the States because of the absence of an adequate number of Designated Courts even in cases where a chargesheet has been filed and the cases are ready for trial.. But when the release of under-trials on bail is severely restricted as in the case of TADA by virtue of the provisions of Section 20 (8) of TADA, it becomes necessary that the trial does proceed and conclude within treasonable time. Where this is not  practical, release on bail which can be taken to be embedded in the right of a speedy trial may, in some cases, be necessary to meet the requirements of Article 21.  Right against Solitary Confinement, Handcuffing & Bar Fetters and Protection from Torture  Solitary Confinement in a general sense means the separate confinement of a prisoner, with only occasional access of any other person, and that too only at the discretion of the jail authorities. In strict sense it means the complete isolation of a prisoner from all human society. Torture is regarded by the police/investigating agency as normal practice to check information regarding crime, the accomplice, extract confession. Police officers who are supposed to be the protector of civil liberties of citizens themselves violate precious rights of citizens. But torture of a human being by another human is essentially an instrument to impose the will of the strong over the weak. Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heel it. An arrested person or under-trial prisoner should not be subjected to handcuffing in the absence of justifying circumstances. When the accused are found to be educated persons, selflessly devoting their service to public cause, not having tendency to escape and tried and convicted for bailable offence, there is no reason for handcuffing them while taking them from prison to court. In the case of Prem Shanker Shukla v. Delhi Administration , the petitioner was an under-trial prisoner in Tihar jail. He was required to be taken from jail to magistrate court and back periodically in connection with certain cases  pending against him. The trial court has directed the concerned officer that while escorting him to the court and back handcuffing should not be done unless it was so warranted. But handcuffing was forced on him by the escorts. He therefore sent a telegram to one of the judges of Supreme Court on the basis of which the present habeas corpus  petition has been admitted by the court. To handcuff is to hoop harshly and to punish humiliatingly. The minimum freedom of movement, under which a detainee is entitled to under Art.19, cannot be cut down by the application of handcuffs. Handcuffs must be the last refuge as there are other ways for ensuring security. There must be material, sufficiently stringent, to satisfy a reasonable mind that there is clear and present danger of escape of the prisoner who is being transported by breaking out of police control. Even when in extreme  circumstances, handcuffs have to be put on prisoner, the escorting authority must record contemporaneously the reasons for doing so. The judicial officer before whom the prisoner is produced has to interrogate the prisoner, as a ru le, whether he has been subjected to handcuffs and other ‘iron’ treatments and if he has been, the official concerned shall be asked to explain the action forthwith. In the case of D.K. Basu v. State of West Bengal , the Court treating the letter addressed to the Chief justice as a writ  petition made the following order: In almost every States there are allegations and these allegations are now increasing in frequency of deaths in custody described generally by newspapers as lock-up deaths. At present there does not appear to be any machinery to effectively deal with such allegations. Since this is an all India question concerning all States, it is desirable to issue notices to all the State Governments to find out whether they are desire to say anything in the matter. Let notices issue to all the State Government. Let notice also issue to the Law Commission of India with a request that suitable suggestions may be made in the matter. Notice be made returnable in two months from today. Custodial torture is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personally. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward. Fundamental rights occupy a place of pride in the Indian Constitution. Article 21  provides no person shall be deprived of his life or personal liberty except according to procedure established by law. Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression life or personal liberty has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defend himself by a legal  practitioner of his choice. The Court, therefore, considered it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures: 1.  The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. 2.  That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made, it shall also he countersigned by the arrestee and shall contain the time and dale of arrest. 3.  A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. 4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the  police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. 5.  The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. 6.  An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed; of the arrest and the names and particulars
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