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.”[1]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.[2]

After the judgment given by the Hon’ble Supreme Court in Maneka Gandhi v UOI[3] 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


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[4],

“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[5].

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.


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.[6].

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

  1. Absolute necessity for fetters.
  2. Special reasons why no other alternative but fetters will alone secure custodial assurance.
  3. Record of those reasons contemporaneously in extenso
  4. 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.
  5. The basic condition of dangerousness must be well grounded and recorded.
  6. Before preventive or punitive irons, natural justice in its minimal form shall be complied with.
  7. The fetters shall be removed at the earliest opportunity.
  8. There shall be a daily review of absolute need for fetters.
  9. 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[7], 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 Adminstration[8]Supreme 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”[9]

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.


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[10] has held;

“Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. The law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation with that view to solve crime. End cannot justify means. The interrogation and investigation into crime must be in true sense purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind closed doors what the demands of our legal order forbid.”

Krishna Iyer, J. in Sunil Batra v Delhi Administration & Ors. Etc[11]has mentioned how technology of torture is growing more sophisticated all over the world. A few torture techniques that he talks of are- ‘wet submarine’ which is near suffocation of a prisoner by immersing him in water or many a times in urine; the ‘dry submarine’ is the same thing, except that a plastic bag is tied over the prisoner’s head to deprive him of oxygen. ‘The telephone’ is another common technique which consists in delivering sharp blows in both ears simultaneously, which often causes excruciating painful rapture of the ear drums. ‘The helmet’ involves putting a helmet over the head of a torture victim to magnify his own screams.

One does not need to mention more examples to show how horrifying and appalling subjecting prisoners to torture can be. It need not merely be physical, there may be mental torture and psychological torture as well, calculated to create fright and submission to the demands or commands of the police authorities.

In State of Madhya Pradesh v Shyamsunder Trivedi[12]the Supreme Court has opined that due to exaggerated adherence to and insistence upon establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situations and the peculiar circumstances of a given case, there is often miscarriage of justice. tortures in police custody, receive encouragement from this type of an unrealistic approach of the Courts because it reinforces the belief in the mind of the people that no harm can be caused to the police as there would hardly be any evidence available to the prosecution to directly implicate them with the torture.

Thus, the two possible safeguards against custodial torture are:

  • Transparency of action
  • Accountability

With a view to bring transparency, presence of the counsel of the arrestee at some point of time during interrogation must be allowed as this would deter the police from using third degree methods during the process. Also, if at all there are cases of custodial violence, then the police personnel should be held accountable for them. They should be accordingly punished and should not be allowed to go scot-free.

Also, training and orientation of police force consistent with basic human values is the need of the hour. They need to be infused with basic human values and made sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach of the police personnel handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable form of interrogation.[13]

The Law Commission has also recommended in its 113th Report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there is evidence that the injury was caused during the period when the person was in custody of the police, then the court may presume that the injury was caused by the police officer having custody of that person during that period. Unfortunately, the suggestion has not been made applicable yet.


The constitutional guarantee of speedy trial is an important safeguard to prevent undue and oppressive incarceration prior to trial; to minimize concern accompanying public accusation and to limit the possibilities that long delays will impair the ability of an accused to defend himself.

Speedy trial is a concept which deals with speedy disposal of cases to make the judiciary more effective and to impart justice as fast as possible. Justice delayed is justice denied. Speedy trial is of the essence of criminal justice and, therefore, delay in trial by itself constitutes denial of justice.

The Supreme Court in Hussainara Khatoon & Ors v Home Secretary, State of Bihar[14] has held:

“Article 21 confers fundamental right on every person not to be deprived of his life or liberty except in accordance with procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be ‘reasonable, fair and just.’ If a person is deprived of his liberty under a procedure which is not ‘reasonable, fair or just,’ such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Any procedure prescribed by law for depriving a person of his life and liberty cannot be ‘reasonable, fair or just’ unless that procedure ensures a speedy trial for the determination of the guilt of such person. No procedure which does not ensure a reasonable quick trial can be regarded as ‘reasonable, fair or just’ and would fall foul of Article 21. There can, therefore be no doubt, that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.”

Thus, the Court has held that right to speedy trial is a fundamental right which is available to all prisoners. Mere closing of cases by pronouncing verdicts quickly is not enough. The courts must ensure that the trial is ‘expeditious’ in the sense that the case ought to be tried efficiently and the accused should not feel wronged because of the speedy trial. Even though it is not specifically enumerated as a fundamental right, it is implicit in the broad sweep of Article 21. The Court has to interpret this Article creatively rather than literally. “Expeditious trial and freedom from detention are part of human rights and basic freedoms. Any judicial system that allows incarceration of men and women for long periods of time without trial denies human rights to such undertrials and withholds basic freedoms from them.”[15]

In Kartar Singh v State of Punjab[16]the court has held that concept of speedy trial is read into Article 21 as an essential part of fundamental right to life and liberty. It begins with the arrest of a person and consequent incarceration and continues at all stages like investigation, trial, appeal etc.

In the case Abdul Rahman Antulay v. R.S. Nayak[17], the bench declared certain aspects and guidelines regarding speedy trial and quashing of cases should depend upon nature of the case. Accordingly, right to speedy trial is the right of the accused. It encompasses all stages, namely-investigation, inquiry, trial, appeal, revision and re-trial. Merely because a prisoner does not demand his right to speedy trial, he cannot be denied of it. This is not a defence available to the State. Speedy trial is also essential from the point of view of the accused in the sense that:

  • Period or remand should be justified and should be as short as possible
  • Worry, anxiety, expense and disturbance in conducting the trial should be minimal
  • Undue delay may well result in impairment of the ability of the accused to defend himself

Ordinarily, when the court concludes that there has been infringement of fundamental rights, it either quashes the charges or conviction of the accused, as the case maybe. However, in certain cases the nature of offence is such that if the proceedings are quashed, then that would be gross miscarriage of justice. In such a case, the court may resort to other options like giving an order to conclude trial within a fixed time where the trial is not concluded or reduce the sentence where the trial has concluded, as would deem to be just and equitable.

Justice Krishna Iyer while dealing with the bail petition in Babu Singh v. State of UP, remarked, “Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.” It can thus be said that it is absolutely essential that persons accused of offences should be speedily tried. The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that it has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus. The State is under a constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by it.


Legal Aid implies giving free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority.It 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.

The Supreme Court has taken an activist approach in the matter of speedy trial and held in Hussainara Khatoon & Ors. v Home Secretary, State of Bihar[18]

The procedure under which a person may be deprived of his life or liberty should be ‘reasonable fair and just.’ Free legal services to the poor and the needy is an essential element of any reasonable fair and just procedure. A prisoner who is to seek his liberation from the court’s process should have legal services available to him.

In the prisons of India, there are quite a large number of under-trial prisoners languishing for long periods of time. Many remain in jail for periods longer than the maximum term for which they could have been sentenced, if convicted. Shockingly, most of the sufferers are those living in penury, they being unable to reap the benefits of the legal system as they are too poor to afford lawyers. Thus, they lose faith in justice and law becomes an instrument of injustice for them.

In Khatri & Others v. St. of Bihar & others[19] Bhagvati J. observed:
“Right to free legal aid, just, faiR and reasonable procedures is a fundamental right (Khatoon’s Case). It is elementary that the jeopardy to his personal liberty arises as soon as the person is arrested and is produced before a magistrate for it is at this stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remain to police or jail custody. This is the stage at which and accused person needs competent legal advice and representation. No procedure can be said to be just, fair and reasonable which denies legal advice representation to the accused at this stage. Thus, state is under a constitutional obligation to provide free to aid to the accused at every stage.”

Article 39A of the Constitution of India talks of equal justice and free legal aid and directs the State to provide free legal aid to those in need of it. Thus, it emphasizes that free legal service is an inalienable element of ‘reasonable, fair, and just’ procedure for without it a person suffering from economic or other disabilities would be deprived of the opportunity of securing justice. The State should take prompt steps to carry out its obligation to provide free legal services to every accused person who is in peril of losing his constitutional liberty and who is unable to defend himself through a lawyer by reason of his poverty or indigence. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21.

The matter of Legal Aid was also referred to the Law Commission to make recommendations for making the legal aid program an effective instrument for rendering social justice. in its 14th report, the law commission since legal aid is a service which should be provided by the State to the poor, it should make provisions for funds to provide legal aid. The legal community must play a pivotal role in accepting the responsibility for the administration and working of the legal aid scheme. It owes a moral and social obligation and therefore the Bar Association should take a step forward in rendering legal aid voluntarily. These would include representation by lawyers at government expenses to accused persons in criminal proceedings, in jails and in appeals.

In conclusion, I would say that legal aid should be given to prisoners to seek justice from prison authorities. If lawyer’s services are not provided then 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, the prisoners are poor, who are unaware of their rights and cannot afford to engage a lawyer for themselves. “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 arbitrary.[20]”


Life is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that Right. 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 from their fundamental rights. Even when lodged in the jail, he continues to enjoy all his Fundamental Rights. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights. The importance of affirmed rights of every human being needs no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens.

The Supreme Court has gone a long way fighting for their rights. Freedom behind bars is part of our constitutional tryst and index of our collective consciousness. Transformation of consciousness is the surest security measure against the atrocities that are committed on the prisoners. Therefore, the need of the hour is to train the police and prison authorities so that they take prisoners’ rights seriously. The Prison Manual is no Bible and the prisoner is not a non-person and so also the jailor is not an absolute monarch. A prisoner is not a temporary slave of the State and is entitled to the fair process of law. Prison power must bow before judge power if fundamental freedoms are in jeopardy.

Winston Churchill has rightly said, “the mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization any country.”

[1] Charles Shobhraj v Supdt. Central Jail, Tihar, New Delhi AIR 1978 SC 1514

[2] Ibid.

[3] AIR 1978 SC 597

[4] Sunil Batra v Delhi Administration & Ors. Etc.(1978) 4 SCC 409

[5] Ibid.

[6] AIR 1978 SC 1675

[7] AIR 1981 SC 625

[8] AIR 1980 SC 1535

[9] Prem Shankar Shukla v Delhi Administration

[10] (1997) 1 SCC 416

[11] AIR 1978 SC 1675

[12] (1995) 3 SCC 343

[13] D.K. Basu v State of West Bengal

[14] AIR 1979 SC 1377

[15] Ibid.

[16] (1994) 3 SCC 569

[17] (1984) 2 SCR 495

[18]AIR 1979 SC 1377

[19](1981)1 SCC 635

[20] AIR 1978 SC 1675

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