Article 21 of the Constitution guarantees the right of life and personal liberty and thereby prohibits any inhuman, cruel or degrading treatments to any person, whether he is a national or foreigner. The Supreme Court of India, by interpreting Article 21 of the Constitution, has developed human rights jurisprudence for the preservation and protection of prisoners’ right to human dignity. A prisoner, be he a convict or under-trial or a detenue, does not cease to be a human being. They also have all the rights which a free man has but under some restrictions. Just being in prison doesn’t deprive them of their fundamental rights. Even when lodged in jail, they continue to enjoy all their fundamental rights.
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. Field, J. has expanded the connotation of life and rightly said that it is something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.
“Imprisonment does not spare farewell to human rights.”Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner’s prejudice, this Court’s writ will run, breaking through the stone walls and iron bars, to right the wrong and restore the rule of law.
After the judgment given by the Hon’ble Supreme Court in Maneka Gandhi v UOI the ambit of Article 21 has been extended to prisoner’s as well. The Article has been interpreted creatively and any procedure which is not ‘reasonable, just or fair’ can be struck down as unconstitutional. Thus, prisoners are still persons entitled to all constitutional rights unless their liberty has been curtailed by procedures that satisfy all the requirements of due process.
In this article the author has dealt with the following fundamental rights that have been made available to prisoners:
- Right against solitary confinement, handcuffing and bar fetters and protection from torture
- Right to speedy trial
- Right to free legal aid
RIGHT AGAINST SOLITARY CONFINEMENT
According to the Black’s Law Dictionary:
In a general sense, the separate confinement of a prisoner, with only occasional access of any other person, and that only at the discretion of the jailor; in a stricter sense, the complete isolation of a prisoner from all human society and his confinement in a cell so arranged that he has no direct intercourse with or sight of any human being, and no employment or instruction.
The vital components of solitary confinement are:
- Seclusion of the prisoner
- From sight of other prisoners and
- From communication from other prisoners
Thus, complete isolation from all human society is solitary confinement in its stricter sense.
Nature abhors a vacuum and man is a social animal. Thus placing people in solitary confinement makes them fall apart emotionally and mentally. This dreadful punishment to which many a sufferers are exposed, inflicts upon them an immense amount of torture and agony. The dehumanizing effect of solitary confinement has been rightly portrayed by Pandit Jawaharlal Nehru,
“Solitary confinement even for a short period is a most painful affair, for it to be prolonged for years is a terrible thing. It means the slow and continuous deterioration of the mind, till it begins to border on insanity; and the appearance of a look of vacancy, or a frightened animal type of expression. It is killing of the spirit by degrees, the slow vivisection of the soul. Even if a man survives it, he becomes abnormal and an absolute misfit in the world.”
After reading the aforementioned lines, one does not need to imagine how macabre this form of punishment is because it does not leave its scars on the body, visible to others eyes, but kills the soul, thus causing a pain which no one but the sufferer can understand. Man has a need for belonging, acceptance and approval which this punishment kills. Thus, solitary hardens the criminal, makes him desperate and breaks his spirit or makes him break out of there regardless of risk. In short, it is counter-productive.
It is beyond doubt that solitary confinement is a separate punishment which the court alone can impose .Section 73 of the Indian Penal Code talks about solitary confinement and lays down that solitary confinement as a punishment may be given to a sentence. However, it should not exceed a total of more than three months. This also, should not be imposed at a stretch for reasons aforementioned.
In Sunil Batra v Delhi Administration & Ors. Etc. the Court has strictly condemned solitary confinement, and held
“For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls out of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects protects the prisoner’s shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. The operation of Articles 14, 19 and 21 maybe pared down for a prisoner but not puffed out altogether.”
The Court has clearly stated that “the law is that for a prisoner all fundamental rights are an enforcing reality, though restricted by the fact of imprisonment.” Thus a prisoner does not forfeit personhood at the gates of the jail.
Solitary confinement as a punishment by courts or a disciplinary penalty by jail authorities should be strictly condemned. The Courts should reject solitary confinement as horrendous and it should not be ordered unless there are special features appearing in the evidence such as extreme violence or brutality in the commission of offence. They should strongly disapprove authorities in prisons who bring upon such a torture to prisoners because it is physically harsh on one’s person, destructive of morale and degrading to one’s esteem and dangerous to the maintenance of sanity. Even the Law Commission of India in its 42nd report has taken the view that solitary confinement is out of tune with modern thinking and should not find a place in the Penal Code as a punishment to be ordered by any criminal court.
RIGHT AGAINST BAR FETTERS AND HAND CUFFS
The human rights conscious Supreme Court has taken up the matter of bar fetters as well, along with solitary confinement in the case of Sunil Batra v Delhi Administration & Ors. Etc..
The case deals with the grievances of Charles Shobhraj who supplicated that many an inmates of the Tihar Jail were kept manacled without any consideration given by the Jail authorities to the bodily harms that were caused due to being continuously subjected to bar fetters. In case of Sobraj, he was kept in restraints for twenty four hours daily and everyday of the month religiously for nearly two years. The restraints continued inspite of wounds on heels and medical advice to the contrary.
It was held by the Court that even though confinement in irons is permitted for the safe custody of prisoners, such application must be governed by the imperative of Articles 14. 19 and 21. “Life and liberty are precious values. Arbitrary action which tortuously tears into the flesh of a living man is too serious to be reconciled with Articles 14, 19 and 21.”
The Court further laid down the key jurisdictional pre-conditions to confine a person in iron. These are
- Absolute necessity for fetters.
- Special reasons why no other alternative but fetters will alone secure custodial assurance.
- Record of those reasons contemporaneously in extenso
- Such record should not merely be full but be documented both in the journal of the Suprintendent and the history ticket of the prisoner. This latter should be in the language of the prisoner so that he may have communication and recourse to redress.
- The basic condition of dangerousness must be well grounded and recorded.
- Before preventive or punitive irons, natural justice in its minimal form shall be complied with.
- The fetters shall be removed at the earliest opportunity.
- There shall be a daily review of absolute need for fetters.
- If it is found that fetters must continue beyond a day, it shall be held illegal unless an outside agency like the District Magistrate or Sessions Judge, on materials placed, directs its continuance.
These requirements though large, are reasonably practical and reconcile security with humanity.
In Kishore Singh Ravinder Dev v State of Rajathan, the Court has held that bar fetters should be imposed only in rarest of the rare cases and that is also for convincing security reasons and must comply with the principles of natural justice.
In Prem Shankar Shukla v Delhi AdminstrationSupreme Court has held that handcuffing is prima facie inhuman and therefore unreasonable, over harsh and arbitrary. Manacles are mayhem on the human person and inflict humiliation on the bearer. Handcuffing not only punishes the sentencee humiliatingly, it vulgarizes the viewers as well.
“Iron straps are an insult and pain writ large, animalizing victim and keeper”
It was also observed that handcuffing being “sadistic, capricious, demoralizing and despotic” it was violative of Article 14 and the minimal freedom of movement which even a detainee was entitled to under Article 19 could not be cut down with cruelty to the handcuffs.
The only circumstance under which a person can be manacled is when there is no other reasonable way of preventing his escape. However, even in such extreme circumstances where handcuffs have to be put on the prisoners, the escorting authority must record reasons for doing so else under Article 21 the procedure would be unfair and bad in law. Also whenever an escorting officer handcuffs a prisoner he has to show the reasons to the Presiding Judge for his approval. If however, the court directs that the handcuffs should be removed then no escorting authority can overrule judicial direction.
In conclusion it can be said that bar fetters and handcuffing are barbaric in nature. They wound the body and cause agony to the mind and person alike. Krishna Iyer, J. has rightly said, “If irons must rule the jail community, there is jejune justice in our prison campuses.’ Manacling a person not only assaults his flesh but also hinders his free movement and strikes his sense of dignity. Iron bars do not ensure a people’s progress. They are unconstitutional and therefore should not be used. However, this method can be resorted to only when there is no other practical way of forbidding escape of the prisoner, he being so dangerous and desperate and the circumstances hostile to safe keeping.
PROTECTION FROM TORTURE
Torture of a human being by another human being is essentially an instrument to impose will of the strong over the weak. Custodial torture is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward.
There have been many an instances where the police have arrested a person without warrant and then subjected him to torture in order to extract information, confessions etc from him. The torture or injury caused on the body of the arrested person leads to his deaths. However, what is deplorable is that every effort is made by police officials to hush up such shocking affairs and deaths in custody are not shown in the records of the lock-ups.
Fundamental rights occupy a place of pride in the Indian Constitution. Article 21 provides that no person would be deprived of his life and liberty except according to procedure established by law. The Supreme Court in D.K. Basu v State of Bengal has held;
“Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of …