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Chapter 1Introduction
1.0 Overview
Imprisonment is one of the common modes of punishment available to the courts
to deal with the persons who commit criminal offences. Prisons are places to keep the
offenders in confinement with a view to restrict their personal liberty. The period of
confinement varies with the gravity of offence committed. A prisoner, however, does not
cease to be a human being after being confined to the four walls of the prison. Prisoners
lose only those rights which are abridged or proscribed by law. Though, they get deprived
of their right to personal liberty, yet they remain entitled to some basic human rights,
which are sacrosanct despite imprisonment. Right to life with a minimum standard of
living, right to health care, right to human dignity, right to humane treatment, protection
against torture, protection against discrimination on grounds of race or caste, right to
education, right to reformation, right to expeditious trial, right to legal aid, right to
protection of motherhood and childhood, right to culture and right to information are the
basic minimum rights that a prisoner is not supposed to forego even when in captivity.
National Human Rights Commission of India has also observed that when an
individual is in custody, it means that he is in the custody of the State. Therefore, it is the
direct concern and responsibility of the State to ensure that his human rights are
protected.1 Places of incarceration are largely impenetrable to the outside world.
Inaccessibility and lack of accountability and transparency coupled with indifference of
people outside towards prisoners lead to gross infringement of their basic human rights.
Historical evolution of prison administration tells that punitive imprisonment was
extensively used in India, China, Egypt, Assyria, Babylon and Rome from times
immemorial. Death, mutilation and fine were common forms of punishment. Gradually it
came to be realised that the process of imprisonment involving detention in isolation
1 National Human Rights Commission of India, D.O. No. 10/19/2005-PRP&P, 5 December 2006
2
from family and community could itself be considered as punishment in place of old
corporal punishment.2
In the ancient times, we have references of Mamertine Prison in Rome which was
constructed around 640-616 BC by Ancus Marcius. It is an ancient prison at the foot of
the Capitoline Hill. The Mamertine Prison consists of two gloomy underground cells
where Rome's vanquished enemies were imprisoned and where they usually died, either
of starvation or strangulation. The lower room of the remaining part is known as the
Tullianum after its builder Servius Tullius (6th century BC). This part served as a place
not for punishment but for detention and execution of condemned criminals. The ancient
historian Sallust said it was 12 feet below the ground and ‘neglect, darkness and stench
make it hideous and fearsome to behold.3
In the United Kingdom, by the 16th and 17th Centuries, prison tended to be a
place, where people were held before their trial or while awaiting punishment.
Imprisonment with hard labour was beginning to be seen as a suitable sanction for petty
offenders by the mid-18th century. Transportation was a much-used method for disposing
of convicted people. Convicts were shipped to the British colonies like America (until the
end of the American War of Independence in 1776), Australia and Tasmania.
Transportation was curtailed at the end of the 18th century. Later on, prison hulks were
made as an alternate mode of punishment. Prison hulks were ships which were anchored
in the Thames, Portsmouth and Plymouth. Those sent to them were employed in hard
labour during the day and then loaded, in chains, onto the ship at night. The life on the
hulks was in appalling conditions, especially the lack of control and poor physical
conditions.4
In 1777, John Howard condemned the prison system as disorganised, barbaric
and filthy. He called for wide-ranging reforms including the installation of paid staff,
outside inspection, a proper diet and other necessities for prisoners. In 1791, Bentham
designed the panopticon. This prison design allowed a centrally placed observer to
survey all the inmates, as prison wings radiated out from this central position. The 19th
century saw the birth of the state prison. The first national penitentiary was completed at
2 Mohanty, et al.: Indian Prison Systems, APH Publishing, Delhi, 1990, p. iv3 www.sacred-destinations.com/italy/rome-mamertime-prison.htm4 The Howard League for Penal Reform, 2006 [www.howardleague.org/31/?0=]
3
Millbank in London in 1816. It held 860 prisoners, kept in separate cells, although
association with other prisoners was allowed during the day. In 1842, Pentonville prison
was built using the panopticon design. This prison is used till today. In 1877, prisons
were brought under the control of the Prison Commission. The Criminal Justice Act,
1948 abolished penal servitude, hard labour and flogging. It also presented a
comprehensive system for the punishment and treatment of offenders. In April 1993, the
Prison Service became an Agency of the government. This new status allows for greater
autonomy in operational matters, while the government retains overall policy direction.5
In the ancient India, Kautilya, Jatakas, Harsacharita, Hiuen-Tsang make a mention
of prison life. The prison system in medieval India resembled that of ancient India.
Imprisonment as a form of punishment was introduced in India by the British
Government in 1773. The Prison Reform Committees were formed in 1836, 1864, 1877,
1888, 1892 and 1920. The Prison Act of 1894 is based on the recommendation of the
Prison Reforms Committee of 1892. This was followed by the Prisoners Act of 1900. In
the post independence period, in 1952, Dr. W. C. Reckless, the United Nations expert
submitted his report on Prison Administration in India. In 1983, A. N. Mulla Committee
submitted its report on Indian Jail Reforms.6
We have references from the Mahabharata7, where Kansa threw his sister Devaki
and her husband Vasudeva into jail. Kautilya8 refers to the Chamberlain (sannidhátá)
who was responsible for construction of the armoury and the jail (bandhanâgâra),
besides treasury-house, trading-house, store-house of grains and other important
storehouses. Arthasastra9 further describes that the jail should be well guarded with
many compartments provided with separate accommodation for men and women.
During the period of the Sultanate, there were no regular prisons. Only old forts
and castles were used as prisons. During the time of Emperor Akbar, there were two
kinds of prisons; one for criminals who had committed serious offences and the other for
5 Ibid.6 Supra Note 27 www.crystalinks.com/avatars.html8 Gairola, Vachaspati: Arthasastra of Kautilya, Chaukhamba Vidyabhawan, Varanasi, 2003, pp.95-96.9 Ibid.
4
ordinary criminals. Important nobles and princes guilty of treason and rebellions were
imprisoned in fortresses situated in different parts of the country.10
The Cellular Jail in the Andaman Islands is a live example of blatant violation of
basic human rights of the prisoners. Port Blair became a penal colony at the end of the
nineteenth century. From 1896, the construction of Cellular Jail was started and it was
completed in 1906, with 698 tiny solitary cells. The Jail was constructed with seven
wings, spreading out like a seven-petal flower. In its centre, it had a tower with a turret.
Connected to this were the three-storey high seven wings with 698 isolated cells. This is
why it is called the Cellular Jail. The Cellular Jail initially housed thieves and smugglers,
but later on freedom fighters and political activists were sentenced to two decades of
imprisonment on these islands, which came to be known as ‘Kala Pani’ or Black Water.11
The first modern prison in India, Central Jail, was constructed in 1846 in Agra on
the recommendations of Macaulay Committee constituted by the British Government.
This was followed by construction of Central Prisons at Bareilly and Allahabad in 1848,
at Lahore (now in Pakistan) in 1852, at Chennai in 1857, at Bombay, Varanasi in 1864
and at Lucknow in 1867.12
Model Prison Manual, 2003 and Draft National Policy on Prison Reforms, 2007
prepared by the Bureau of Police Research and Development of India (BPRD) have
provided benchmarks for reforms in the prisons and protection of the rights of the
prisoners.
Punjab State has seven Central Jails located at Patiala, Bathinda, Ferozepur,
Amritsar, Gurdaspur, Jalandhar and Ludhiana. In addition, there are six District Jails
situated in Nabha, Sangrur, Faridkot, Kapurthala, Ropar and Hoshiarpur. There are also
two Open Air Jails at Nabha and Kapurthala. The State has a Women Jail as well as one
Borstal Jail at Ludhiana. In addition, there are nine Sub Jails situated at Fazilka, Moga,
Mukatsar, Patti, Barnala, Malerkotla, Phagwara, Dasuya and Pathankot. The Amritsar
Central Jail was constructed in 1957, as a District Jail and later upgraded as Central Jail
in 1969.
10 Tamil Nadu Prison Department: [www.prisons.tn.nic.in/history.htm]11 History of Andaman Cellular Jail: [www.andamancellularjail.org/History.htm]12 Sastry, G.U.G.: Criminology, S.V.P. National Police Academy, Hyderabad, 1999, p. 184
5
1.1 Administration of Prisons: Theory and Practice
Though, isolated and punished for committing crimes, yet the prisoners are a part
and parcel of our society. In the modern society, after wide recognition of reformative
theory of punishment, jails are no longer punitive institutions; rather they are being
developed in the shape of corrective institutions. The administration of prisons in India is
regulated by the Indian Prisons Act of 1894 and Prison Manuals of various States. There
are various provisions and guidelines for the general well-being and rights of the
prisoners. However, there is a wide gap between the theory and practice. Human rights
violations are very common in the prisons of India. Punjab is no exception to this
malaise. Keeping a person in custody only means that his or her liberty has been
restricted. Despite being imprisoned in the jail, a person is entitled to all other
fundamental rights, like right to human dignity, right to minimum needs, right to access
to law, right to communication, right to be released on due date, etc. The study of human
rights violations and suggestions for the protection of these rights becomes an important
area; whereupon the present researcher has focused during his research.
1.1.1 General Living Condition and Overcrowding
In the prisons, various types of prisoners are lodged such as convicts, undertrials,
men, women, foreign nationals, internees and civil prisoners. Many of them are drug-
addicts, habitual offenders, professional criminals, sexual perverts etc. There is no
adequate classification and segregation of prisoners. Normally professional criminals and
casual offenders are kept together and often given similar treatment. It requires scientific
and logical separations of prisoners on the basis of crime and quantum of criminality
from the reforms point of view also. For instance, it is not advisable to keep an undertrial
along with convicted prisoners. In fact, there should be separate institutions for keeping
the undertrials till the completion of trial process, as a person is presumed to be innocent
unless proved guilty and convicted by law. Similarly, it is not appropriate to keep a
person charged with offences like dowry and simple hurt alongwith a gang of contract-
killers or drug peddlers. For the purpose of reforms and rehabilitation, it is essential to
classify the prisoners and separate them on the basis of categories like convict-undertrial,
professional-casual, habitual-first offender and house them in separate rooms or cells.
6
Overcrowding and congestion are the major problems of Punjab Jails. Due to
inadequate premises in the jails, the number of prisoners is far more than the capacity.
This results in overcrowding and congestion. The authorized accommodation of Jails in
Punjab is 9854. However, the total population of prisoners is 14073.13 Amritsar Central
Jail has been maintaining over 2500 prisoners against the actual capacity of 1000.
Consequently, it creates other related problems like poor sanitary conditions, unhygienic
environment and improper care of prisoners. As per Punjab Jail Manual14, each berth
should be six and a half feet long, two and a quarter feet broad and eighteen inches high
and shall be constructed with a slight slope down from the head. The toilets are dingy and
unhygienic. These toilets are working on old pattern rather than flush system. The
number of toilets is also very less in proportion to the number of inmates. This constitutes
a major human rights issue.
Food, drinking water, clothing, clean atmosphere and accommodation are basic
needs of a human being. Prisoners are entitled to proper food, drinking water, suitable
accommodation and regular medical check-up. The quality of food provided to the
prisoners cannot be termed satisfactory from humanitarian point of view. There are
obvious flaws in the quality of the raw materials as well as preparation and distribution of
food. The improvement in the overall food condition is essential keeping in mind the
health and hygiene of the inmates.
1.1.2 Contact With Outside World
It is a basic right of every prisoner to maintain contacts with his or her relatives,
family members and legal advisors. Every prisoner is entitled to be provided reasonable
facilities to interact with the relatives through interviews and also to correspond through
letters. Similarly prisoners are entitled to have meetings with their legal advisors. .Punjab
Jail Manual has also made adequate provisions for interviews.15 However, there is no
uniform procedure to regulate the interviews in a prison like that of Amritsar, where more
than 2500 prisoners are kept. Chaos and mismanagement can be witnessed in the
interview rooms. There is lack of proper streamlined procedure which would give an
13 Office of the AIG, Punjab Jail Department, 200514 Manual for the Superintendence and Management of the Prisons in Punjab, 1996, Para 89115 Ibid. Para 468
7
equal and fair opportunity to every prisoner to meet his or her family members and
friends. There are genuine complaints that the influential and rich prisoners are given
more time, facility and preference over the poor and weak ones. Therefore, there is a
pressing need to evolve an effective and well-accepted plan to streamline the process of
meetings and interviews.
1.1.3 Human Rights of Undertrial Prisoners
The number of undertrials in the jails outnumbers the convicts. Due to the
excessive delay in the trials, many persons have to undergo a considerable period of
confinement under judicial custody. Unnecessary detention of the undertrials amounts to
violation of human rights. Only those undertrials should be detained, who are desperate
criminals and are in a position to influence the judicial process and are in a position to
influence or induce the witnesses and the complainants. Unchecked and undeterred
arrests by the police aggravate the situation.
A prisoner detained in judicial custody is entitled to be tried within a reasonable
period of time. Speedy trial is the basic right of the accused. It is an old saying that justice
delayed is justice denied. Dr. A. P. J. Abdul Kalam, former President of India, also
expressed his concern over the time taken by courts in deciding cases and suggested to
speed up the judicial process with minimum adjournments.16
All the persons arrested under law are entitled to be provided free legal aid.
Everybody has a right to consult a legal advisor of his or her choice. In case a person is
not capable of hiring the services of a lawyer, it is the responsibility of the state to
provide a lawyer at the cost of the state. The Legal Services Authorities Act, 1987 has
been enacted to give this facility a statutory base. For this purpose, Legal Services
Authorities have been constituted at the district and state levels, besides National Legal
Services Authority at the centre. However, poor and needy persons are still languishing in
the jails devoid of the legal benefits under these provisions.
On several occasions, the undertrials are not produced before the courts by the
police on the grounds of their engagements with the VVIP duty or under the pretext of
16 The Tribune, Chandigarh, 27 March 2006.
8
some other law and order duty. As a result of this, the trial gets delayed. The procedure of
production of undertrials in the courts needs reexamination to ensure justice.
There are instances where poor persons are involved in minor and petty offences
and are languishing in the jails because they are not in a position to arrange for the
lawyers and sureties due to poverty. There are many persons in the jail against whom
charge-sheets have not been filed by the police despite expiry of the stipulated 60 or 90
days as per the Code of Criminal Procedure, 1973. However, they continue to rot in the
jail only because of their poverty. To keep a person in judicial custody, without
chargesheeting, amounts to serious violations of the human rights.
There are instances where many persons are acquitted by the trial court.
However, they have already undergone a considerable period of imprisonment while
pending trials. It is a serious violation of basic rights of a person who suffers for no fault
of his own. If a court of law declares a person innocent and the person has already
undergone 2-3 years or even more in the judicial custody, the person after release finds
himself nowhere in the society and thus law and justice are meaningless for him.
1.1.4 Human Rights of Foreigner Prisoners
Amritsar, being a border district, there are a number of foreigners in the Amritsar
Central Jail. The plight of these prisoners is very miserable. Outside the prison, nobody is
there to look after them. They cannot meet their relatives and friends. They cannot defend
themselves during the trial as they do not have their relatives here. The advocates
provided by the District Legal Service Authority do not take interest to defend them
properly because of various reasons. They even do not know the names of the advocates
provided to them.
A number of foreign nationals are languishing in the jails even after completion of
their sentence awaiting clearance by the concerned Embassies. They are called internees
and are living in a pitiable condition. Technically, they are residing in a camp made for
this purpose. A part of Amritsar Jail has been declared as a camp for housing the
internees of the Punjab State. It is a gross violation of human rights to keep them under
custody despite the fact that they have completed their period of imprisonment. Most of
them are poor persons who crossed the border in search of jobs or were planted by the
9
trans-border intelligence agencies. Majority of them are from Pakistan and Bangladesh.
Various agencies from India and the concerned countries are involved in the process of
deportation of the internees. However, there is an inordinate delay in completing the
necessary formalities for the deportation of these internees. This issue is required to be
studied in depth so that the violations of human rights of the internees could be protected.
Besides this, the plight of women inmates is very miserable in the Indian jails.
Though efforts have been made to improve the living condition of women in the jails and
several guidelines have been issued in this regard by the Supreme Court of India and the
National Human Rights Commission, there have been continuous violations of their
human rights. Women cannot even move freely in the male dominated central jails. The
conditions of children residing with their mothers are more pitiable and are repugnant to
their tender ages.
All these issues are related to the rights of prisoners. The prisoners have to stay in
the jails without having power to express their views even about their basic problems and
difficulties. Despite Jails being places to keep the lawbreakers in confinement with a
view to restrict their personal liberty, their other entitlements are being grossly violated.
1.2 Review of Literature
Human Rights of Prisoners is comparatively a new and perceptive area of study
from research point of view. Though, we find literature in the shape of guidelines on the
rights of prisoners by the United Nations Organisation, National Human Rights
Commission, Jail Manuals and Judgments of Supreme Court of India and High Courts,
we do not find much literature on the rights of prisoners in the form of empirical studies
particularly on various aspects of problems of prisoners. The present study is purely
empirical in nature as it is based on practical orientation of the rights of prisoners.
Therefore, it becomes a humble attempt to fill the gap of the practical aspects of the
literature.
For the convenience and clarity of the present study, review of the literature is
divided into four parts:
1. Guidelines given by the United Nations and other National & InternationalHuman Rights Organisations
2. Various Acts, Rules, Jail Manuals and Committee Reports
10
3. Guidelines given by the Supreme Court of India and High Courts
4. Books, Journals, Research Studies and Reports
1.2.1 Guidelines given by the United Nations and other National and InternationalHuman Rights Organisations
(a) Standard Minimum Rules for the Treatment of Prisoners17 is the first major United
Nations document which advocates the rights of the prisoners. As per these rules, the
purpose and justification of a sentence of imprisonment or a similar measure deprivative
of liberty is ultimately to protect the society against crime. This end can only be achieved
if the period of imprisonment is used to ensure, so far as possible, that upon his return to
the society the offender is not only willing but able to lead a law-abiding and self-
supporting life.
Putting stress on the basic human needs of the prisoners like food, drinking water,
health and hygiene, the Rules say that every prisoner shall be provided by the
administration at the usual hours with food of nutritional value adequate for health and
strength, of wholesome quality and well prepared and served. Drinking water shall be
available to every prisoner whenever he needs it.18 The sanitary installations shall be
adequate to enable every prisoner to comply with the calls of nature when necessary and
in a clean and decent manner.19 Adequate bathing and shower installations shall be
provided so that every prisoner may be enabled and required to have a bath or shower, at
a temperature suitable to the climate, as frequently as necessary for general hygiene
according to season and geographical region, but at least once a week in a temperate
climate.20
Further, the Rules say that where sleeping accommodation is in individual cells or
rooms, each prisoner shall occupy by night a cell or room. If for special reasons, such as
temporary overcrowding, it becomes necessary for the central prison administration to
make an exception to this rule, it is not desirable to have two prisoners in a cell or room.
17 Standard Minimum Rules for the Treatment of Prisoners (1955) adopted by the First United NationsCongress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, andapproved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076(LXII) of 13 May 1977.
18 Ibid., Rule 2019 Ibid. ,Rule 1220 Ibid., Rule 13
11
Where dormitories are used, these shall be occupied by prisoners carefully selected as
being suitable to associate with one another in those conditions. There shall be regular
supervision by night, in keeping with the nature of the institution.21 All accommodation
provided for the use of prisoners and in particular all sleeping accommodation shall meet
all requirements of health, due regard being paid to climatic conditions and particularly to
cubic content of air, minimum floor space, lighting, heating and ventilation. 22
Advocating the right of communication, the Standard Minimum Rules say that
Prisoners shall be allowed under necessary supervision to communicate with their family
and reputable friends at regular intervals, both by correspondence and by receiving
visits.23
Regarding right to education, Rule 77 says, “Provision shall be made for the
further education of all prisoners capable of profiting thereby, including religious
instruction in the countries where this is possible. The education of illiterates and young
prisoners shall be compulsory and special attention shall be paid to it by the
administration. So far as practicable, the education of prisoners shall be integrated with
the educational system of the country so that after their release they may continue their
education without difficulty.”
As per Rule 84 the undertrial prisoners are presumed to be innocent and shall be
treated as such. Rule 85 says that the undertrial prisoners shall be kept separate from
convicted prisoners and young undertrial prisoners shall be kept separate from adults and
shall in principle be detained in separate institutions.
(b) The second most important document on basic rights of prisoners is Body of
Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.24 It advocates the basic human rights and dignity of the prisoners and
says, ‘All persons under any form of detention or imprisonment shall be treated in a
humane manner and with respect for the inherent dignity of the human person.’ Principle
21 Ibid., Rule 0922 Ibid., Rule 1023 Ibid., Rule 3724 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonmentadopted by UN General Assembly Resolution 43/173 of 9 December 1988
12
6 of this Resolution prohibits any kind of torture, cruel behaviour, inhuman or degrading
treatment of prisoners.
As per Principle 17 of this Resolution, “A detained person shall be entitled to
have the assistance of a legal counsel. He shall be informed of his right by the competent
authority promptly after arrest and shall be provided with reasonable facilities for
exercising it. If a detained person does not have a legal counsel of his own choice, he
shall be entitled to have a legal counsel assigned to him by a judicial or other authority in
all cases where the interests of justice so require and without payment by him if he does
not have sufficient means to pay.”
Principle 19 of this Resolution is related with the right of prisoner to correspond
with the members of his family and friends. A detained or imprisoned person shall have
the right to be visited by and to correspond with, in particular, members of his family and
shall be given adequate opportunity to communicate with the outside world, subject to
reasonable conditions and restrictions as specified by law or lawful regulations.
Principle 38 of this Resolution lays stress on quick trial and provision of bail. A
person detained on a criminal charge shall be entitled to trial within a reasonable time or
to release pending trial. Principle 39 of this Resolution further says that “Except in
special cases provided for by law, a person detained on a criminal charge shall be
entitled, unless a judicial or other authority decides otherwise in the interest of the
administration of justice, to release pending trial subject to the conditions that may be
imposed in accordance with the law”.
Principle 16 of this Resolution is related with the ‘foreigner prisoners’ which
makes provision for immediate consular access or correspondence with the diplomatic
mission of the Country of which he is a national.
(c) The third UN document related with the rights of prisoners is Basic Principles for
the Treatment of Prisoners.25 It provides for the treatment of prisoners with respect due
to their inherent dignity and value as human beings. It prohibits any kind of
discrimination on the grounds of race, colour, sex, language, religion, political or other
25 Basic Principles for the Treatment of Prisoners, adopted and proclaimed by UN General AssemblyResolution 45/111 of 14 December 1990 of the UNO
13
opinion, national or social origin, property, birth or other status. It also advocates for
protecting the basic rights set out in the International Covenant on Civil and Political
Rights. It also describes the right of prisoners to take part in cultural activities and
education aimed at the full development of the human personality. It further lays stress on
the rehabilitation of the prisoners in the society after release through community
participation and support from social institutions.
(d) Commonwealth Human Rights Initiative in the “Recommendations on Prisoners
Rights" (1995) advocates to adopt measures to ensure freedom of communication
between the prisoner and members of his or her family who should be permitted periodic
visits under conditions which while safeguarding security do not impair privacy of
communication. Legal aid should be given to an accused at the first point of contact with
the police. The right of a prisoner to see a lawyer of his/her choice should be ensured.
Meetings with the lawyer may be subject to reasonable regulation as to time and place
but not held within the hearing of prison officials. Urgent steps should be initiated to
reduce the delays in bringing prisoners to trial. While prisoners serve their terms, their
inner creativity should be developed so that when they are released, they can be more
easily integrated into the society. It was stressed that with a view to affording greater
access to and interaction with the family, the criteria for giving parole should be relaxed.
(e) National Human Rights Commission of India (NHRC) speaks on the problems of
undertrial prisoners which have now assumed an alarming dimension. Almost 80 percent
of prisoners in Indian jails are undertrials. The majority of undertrial prisoners are people
coming from poorer and underprivileged sections of the society with rural background.
Indeed in most of the jails, there is predominance of undertrials. Many of them who have
committed petty offences are languishing in jails because their cases are not being
decided early for reasons which need not reiterated. On the general living conditions of
the prisoners the Commission says, “It is an unfortunate reality that the living conditions
of prisoners in most of the jails in the various States and Union Territories leave much to
be desired. Overcrowding is the main reason for this a principal reason being the
14
presence of undertrial prisoners who languish in jail for long periods because of the
slowness of the judicial process."26
For the overall mental and physical growth and development of the prisoners the
National Human Rights Commission of India says:
i) “As prisoners have a right to a life with dignity even while in custody, they
should be assisted to improve and nurture their skills with a view to promoting
their rehabilitation in society and becoming productive citizens. Any restrictions
imposed on a prisoner in respect of reading materials must therefore be
reasonable.
ii) In the light of the foregoing, all prisoners should have access to such reading
materials which are essential for their recreation or the nurturing of their skills
and personality, including their capacity to pursue their education while in prison.
(iii) Every prison should, accordingly, have a library for the use of all categories
of prisoners, adequately stocked with both recreational and instructional books
and prisoners should be encouraged to make full use of it. The materials in the
library should be commensurate with the size and nature of the prison population.
(iv) Further, diversified programmes should be organized by the prison authorities
for different groups of inmates, special attention being paid to the development of
suitable recreational and educational materials for women prisoners or for those
who may be young or illiterate. The educational and cultural background of the
inmates should also be kept in mind while developing such programmes.” 27
1.2.2 Various Acts, Rules, Jail Manuals and Committee Reports
Prison as a subject of legislation has been placed under Entry 4 in List-II [State
List] of the Seventh Schedule of the Constitution of India. Hence, prisons in different
States vary in their organization, rules and models. All the States have their own Manuals
based upon the Prisons Act, 1894, which is a central legislation.
Articles 14, 21 and 22(1) of the Constitution of India make it obligatory for the
State to ensure equality before law and a legal system which promotes justice on a basis
26Annual Report 2002-03, National Human Rights Commission of India, New Delhi
27 National Human Rights Commission, Guideline No. 68/5/97-98, 1 March 2000
15
of equal opportunity to all. Article 39-A provides that State shall secure that the operation
of the legal system promotes justice on a basis of equal opportunity, and shall in
particular, provide free legal aid by suitable legislation or schemes or in any other way to
ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disability. In 1987, the Legal Services Authorities Act was enacted to
give a statutory base to legal aid programmes throughout the country on a uniform
pattern.
Legal aid strives to ensure that Constitutional pledge is fulfilled in letter and spirit
and equal justice is made available to the poor, downtrodden and weaker sections of the
society. A detained or imprisoned person shall be entitled to communicate and consult
with his legal counsel. A detained person shall be entitled to have the assistance of a legal
counsel. He shall be informed of his right by the competent authority promptly after
arrest and shall be provided with reasonable facilities for exercising it.
The All India Jail Reforms Committee, which worked during 1980-83, has
elaborated the rights to basic minimum needs for the prisoners. These include right to
fulfillment of basic minimum needs such as adequate diet, health, medical care and
treatment, access to clean and adequate drinking water, access to clean and hygienic
conditions of living accommodation, sanitation and personal hygiene, adequate clothing,
bedding and other equipment.
The Bureau of Police Research and Development prepared Model Prison Manual
for all the States, in the year 2003. It defines all the rights of the prisoners in detail.
Realizing the need of education to the inmates, it says that ‘education of
prisoners’ benefits the society as well as it leads to their rehabilitation and self-
sufficiency. Education reduces the tendency to crime. This would mean less crime, fewer
victims, fewer prisoners, more socially productive people and less expenditure on
criminal justice and law enforcement.28
Describing the rights to communicate with outside world, the Manual says, “On
admission every prisoner should submit a list of persons who are likely to interview
him/her and the interview shall be restricted to such family members, relatives and
friends. The conversation at the interviews shall be limited to private and domestic
28 Model Prison Manual, 2003, Para 13.01
16
matters and there shall be no reference to the prison administration and discipline and to
other prisoners or politics. The number of persons who may interview a prisoner at one
time shall ordinarily be limited to three."29 Vocational training programmes should be
designed to suit the needs of prisoners sentenced to short, medium and long term
imprisonment.30 It also suggests to liaise with the department of technical education and
other institutions to impart vocational training and also to award regular Certificate and
Diploma after successful completion of the courses.
Concerned over the time taken by courts in deciding cases, the former President
of India, Dr. A.P.J. Abdul Kalam31 suggested that a study be conducted to examine the
judicial delays. Inaugurating a seminar on narcotic drugs and psychotropic substances,
Dr. Kalam said, “Of course, there is a need to speed up the judicial process with
minimum adjournment.” He further said: “Probably, it may be useful to conduct a case
study of hundred cases to examine the number of adjournments and the duration it has
taken to settle the case on an average.”
The Punjab Jail Manual says that the different categories of prisoners for the time
being confined in every jail should be kept in separate institutions, part of institutions,
units taking into account their sex, age, condition of health, criminal record, the legal
reason for their detention and necessities for their treatment.32
1.2.3 Guidelines given by the Supreme Court of India and High Courts
The Supreme Court of India has given some landmark judgments, which are
treated as Magna Carta in the administration of prisons in India. The most important
judgment is Sunil Batra vs. Delhi Administration33. It gives legal sanction to the Standard
Minimum Rules for Prisoners as recommended by the United Nations.34
In a number of judgments on various aspects of prison administration, the
Supreme Court of India has laid down three broad principles:
a. A person in prison does not become a non-person.
29 Ibid., Para 08.0330 Ibid., Para 14.1031 The Tribune, Chandigarh, 27 March 200632 Supra Note 14, Para 49533 Sunil Batra vs. Delhi Administration, (1978) 4 SCC 49434 Supra note 17
17
b. A person in prison is entitled to all human rights within the limitations of
imprisonment.
c. There is no jurisdiction in aggravating the suffering already inherent in the
process of incarceration.
The Supreme Court of India in Sunil Batra vs. Delhi Administration35 says that, whether
inside prison or outside, a person shall not be deprived of his guaranteed freedom save by
methods ‘right, just and fair’.
The Apex Court has given directions to provide free legal aid to the poor and
needy persons and to introduce ‘Transcendental Meditation’ for maintaining the dignity
of the ‘inner man’. Prison houses are part of Indian earth and the Constitution cannot be
held at bay by jail officials….Drug racket, alcoholism, smuggling, violence, theft,
unconstitutional punishment by way of solitary cellular life and transfers to other jails are
not uncommon.
The Apex Court rightly raised the question and answered,
“Are prisoners’ persons? Yes, of course. To answer in thenegative is to convict the nation and the Constitution ofdehumanization and to repudiate the world legal order,which now recognizes rights of prisoners in theInternational Covenant on Prisoners’ Rights to which ourcountry has signed assent”.36
Concerned over the stigma, children born in jail to accused women carry for life,
the Supreme Court has directed jail authorities across the country to ensure that all such
expectant mothers be sent to hospitals outside the prison for delivery. Also laying down
various guidelines regarding welfare of women jail inmates and their children, the court
said that the purpose of ensuring the delivery of child outside the prison hospital was to
avoid mention of jail's name in the birth certificate of the child, so as to save him of
‘stigma’. A child below six years of age is permitted under the law to live with his or her
mother in the jail if there is no reasonable arrangement in the family or there are no
relatives to look after the child. Protection of the fundamental rights of such children,
35 Supra Note 3336 Sunil Batra vs. Delhi Administration,36 (1980) 3 SCC 488
18
their proper education and healthcare were the responsibilities of the State and the same
could not be allowed to be violated.37
Hearing on a Public Interest Litigation seeking directions to the Government of
India and other respondents to initiate steps to facilitate the release and return of Indian
citizens languishing in various Pakistani jails despite their prison term having ended, a
Division Bench of the Punjab and Haryana High Court ordered to pay the compensation
of Rs 10,000 for every year that he spent in jail after the completion of his sentence, to
each of the 42 Pakistani prisoners, who have been kept in the Punjab jails despite the
completion of their term.38
1.2.4 Books, Journals, Research Studies and Reports
In his research study, Sandhu (1968) has discussed the impact of longer
imprisonment on human beings and also has taken up the concept of group therapy of
prisoners. The concept of background factors of prisoners has also been taken into
consideration, but the bare human vis-à-vis prisoners needs of food, drinking water and
accommodation and more so the human rights of prisoners has not been touched by
him.39
Robert Albert(1974), in his book Correctional Treatment of Offenders lays stress
on the various aspects of rehabilitation of offenders like role of environment in the field
of rehabilitation, treatment for juvenile delinquents etc. More so, he has provided a
model of secondary education in prisons in detail. However, we do not find the
phenomenon of human rights focusing on the fundamental needs mentioned above, on
which the present researcher desires to concentrate.40
37 R.D. Upadhyay vs. State of Andhra Pradesh & others, Writ Petition (Civil) 559 of 1994, Supreme CourtCases38
World Human Rights Protection Council through its chairman, Advocate Ranjan Lakhanpal vs. State of
Punjab, CWP Number 10069/2005 decided on April 26, 2006
39 Sandhu H.S.: A study of prison Impact, Punjab University Publication, Chandigarh, 196840 Roberts, R Albert: Correctional Treatment of Offenders, Charles C. Thomas Publishers, Springfield,1974
19
Duffe and Fitch41 (1976) deal with prisons institutions and the origins of
contemporary prisons in detail and also throw light on future prisons. More so, the
regular functioning and day-to-day routine of prisoners have been touched in an
evaluative way to justify the yardsticks of criminal justice system. But the basic
phenomena like food, clothing, drinking water as well as speedy justice are missing,
which are fundamentals of human rights. Much stress has been laid on impact of pre-
convictional operations on the correctional strategies. The rights of indigent dependents
in correctional systems have been discussed in detail, but human rights of undertrials are
not touched.
Describing the concept of open prisons, Jones and Cornes (1977) highlight on the
successful working of open prisons alongwith requisite infrastructure required. However,
the basic needs and rights of prisoners are missing.42
Carter and Glaser (1977) underline correctional institutions with special reference
to the topics like use of prisons with comparative outlook with the concepts like crisis in
prison population from various angles. Organizational and administrative aspects have
been elaborately discussed in this work.43
Rahi in his study The Functioning of Punjab Prison44 has contributed in the field
of historical development of prisons and operational impact of correctional system in
Punjab. This research work deals with structure of prisons staff, educational programmes
in prisons, trade and vocational training, cultural, religious as well as sports programmes.
Goffman (1961) in his essay Characteristics of Total Institutions provides us a
summary of one of his key concepts, that of the “Total Institution.” In defining this
concept, Goffman delineates the key features of totalitarian social systems. Should a
person reside in such a system, it encompasses his or her whole being. It undercuts the
resident's individuality. It disregards his or her dignity. It subjects the individual to a
regimented pattern of life that has little or nothing to do with the person's own desires or
41 Duffee, David and Fitch, Robert: An Introduction to Corrections, Goodyear Publishing Company,California, 197642 Jones, Howard and Cornes, Paul: Open prisons, Routledge and Kegan Paul, London, 197743 Carter, Robert Melvin and Glaser, Daniel: Correctional Institutions, Lippincott Company, Philadelphia,197744 Rahi, Malkiat Singh : The functioning of Punjab Prison: An Appraisal in the Context of CorrectionalObjectives, submitted to GNDU, 1987
20
inclinations. And it is inescapable. A prison is a kind of Total institution and a prisoner is
an inmate as per this principle.45
Dangwal46 (1995) in Kiran Bedi’s biography states her viewpoint, “ my day and
night observation rounds of the jails revealed that a nexus of staff, drug peddlers and
prisoner addicts were holding jail 4 of Tihar to ransom. The dispensaries were
pathetically short of alternative drugs for prisoner-addicts and they had no option but to
continue with their habits and become totally dependent on, and subservient to, the drug
mafia operating within the jail. Nothing was possible; nothing could be done for the
prisoners, till this rampant evil was rooted out.” This work is quite revealing regarding
the jail administration.
According to Kiran Bedi47 (2005), the foreign inmates’ plight was no different
from that of their Indian counterparts. But their agony was magnified due to problems of
communication, food habits, cultural differences, lack of visitors, shortage of money and
shabby clothing.
Malhotra48 (2003) deals with promotion of human rights on the part of non-
governmental organizations. A complete Chapter has been contributed to the introduction
and classification of Non-Governmental Organisations (NGO). This project evaluated the
critical aspects of NGO’s functioning.
Ritu (2004)49 observed that crime was less among educated females since they
were more aware of the law and can evaluate their actions. Bedi50 (2005) expressed that
women prisoners were subjected to the most humiliating experiences, which robbed them
of what little dignity and self-respect they reached the prison with.
On the basis of the review of the literature, the following basic human rights issues
emerge:
i) Lack of proper accommodation, overcrowding and sanitation
45 Goffman, Erving: Asylums: Essays on the Social Situation of Mental Patients and Other Inmates, AnchorBooks, New York, Doubleday,1961[www.diligio.com/goffman.htm]46
Dangwal, Parmesh: I dare! Kiran Bedi A Biography, USB Publishers’ Distributors Ltd, New Delhi, 199547 Bedi, Kiran: It’s always Possible, Sterling Publishers Private Limited, New Delhi, 200548 Malhotra, Rajni: Role of Non Governmental Organisation in the Promotion and Protection of HumanRights- A Study with Special Reference to Punjab, submitted to GNDU in 200349 Ritu: Causes and Consequences of Criminality among Women in North-Western India—A Micro LevelAnalysis (Ph. D. Thesis), P.A.U. Ludhiana, 2004.50 Supra Note 46
21
ii) Lack of proper food, drinking water, medical care, health and hygiene
iii) Improper and inadequate contact with outside world
iv) Problems of undertrial prisoners
v) Problems of foreigners
vi) Problems of women and children
The abovementioned studies have dealt with the problems of prisons and
prisoners in isolation. Prisoners’ rights and prison conditions is a new area of study with
humanistic approach. No such study in an empirical manner has been conducted so far in
depth to know the problems of prisoners and various human rights issues especially in the
context of the Punjab Jails. Therefore, there is a need of a comprehensive study covering
all relevant aspects of the right of prisoners. The present study is a humble attempt to fill
this gap. It envisages throwing an insight into various aspects of the human rights of
prisoners especially in the environment of the Punjab Jails in general and Amritsar
Central Jail in particular.
1.3 Aims and objectives
The proposed study aims to examine the basic human rights issues of prisoners in
Indian jails, with particular reference to Amritsar Central Jail. The main objectives of this
study are:
i. To examine the existing living conditions in the jails
ii. To evaluate the problems faced by the undertrial prisoners due to delay in the
disposal of cases
iii. To learn the problems faced by the foreign inmates in the jails
iv. To appraise the basic rights of the women prisoners and their children
v. To examine and evaluate the human rights issues of the prisoners
vi. To propose a proactive action plan to ensure protection of human rights of the
prisoners
While looking at the rights of undertrial prisoners, this research study will also
evaluate the average time duration and average number of adjournments in the trials of
22
the cases in the courts. This area is required to be studied in detail to ensure proper
justice.
The present research aims to examine the prevailing conditions in the jails from
human rights perspective in particular.
1.4 Methodology
The universe of the study is Amritsar Central Jail. The research methodology
includes the collection of data from primary and secondary sources. Primary data for the
study was collected through a structured interview schedule, participant observation and
brief case studies. Primary data have been collected to know the socio-economic status of
the prisoners, actual living conditions and troubles faced by them with the help of
interview schedule prepared for the specific groups.
Amritsar Central Jail has two sections – Central Jail- I and Central Jail- II. Central
Jail- I has five barracks and four cells including one separate barrack for women inmates.
In the barrack No. 4 and 5, convicted prisoners are accommodated in normal
circumstances. Central Jail- II is also known as Security Jail, where hardcore and
desperate inmates are accommodated and most of them are undertrials. It has four
barracks and four cells. In one of the cells of Central Jail- II, only condemned51 prisoners
were lodged. This cell was kept out of the preview of the study as these inmates are not
permitted to be interviewed.
Prison population is not of a permanent character. New people come and others
go out from the prison everyday. Given the transient nature of prison population, it is
often very difficult to find an adequate and representative sample which could form the
basis of study. To obviate this difficulty, recourse was taken to draw large sample sizes
aimed at minimizing the errors. Finally, a sample size of 300 prison inmates' respondents
was chosen for intensive study. Every barrack and cell was given due representation
while taking sample for the study. Out of these 300 inmates, 200 inmates were undertrials
and one hundred were convicted including women and detenues.
51 Condemned prisoners are those who have been awarded death sentence.
23
The Interview Schedule was prepared to know the various aspects which include
socio-economic conditions, general living conditions, communication and education and
the rights of undertrial prisoners. It was divided into five parts as under:
Part A: Socio-economic status of prisoners
Part B: General living conditions inside jail
Part C: Undertrial prisoners
Part D: Interview and Communication
Part E: Education
Apart from Amritsar Central Jail, the present researcher visited some other jails of
Punjab to get acquainted with prison conditions and human rights issues before
preparation of Interview Schedule. He visited Ludhiana Central Jail, Jalandhar Central
Jail, Patiala Central Jail, Chandigarh Jail and Women Jail of Ludhiana for this purpose.
He recorded his observations in the form of field notes and finally drafted the human
rights issues prevalent there. In the light of these issues, an Interview Schedule was
prepared for collection of data. This Interview Schedule was pretested to make it more
accurate and precise. In this connection, 20 inmates were interviewed. A dummy thesis
was prepared on the basis of these 20 interviews. The final Interview Schedule was
prepared after eliminating irrelevant questions and adding some relevant questions.
Thereafter, it was translated into Punjabi language. For the collection of data, English and
Punjabi both the versions were used. A copy of the Interview Schedule, both English and
Punjabi version are enclosed for reference as Annexure 1 and 2.
To study the human rights of undertrial prisoners and the delay in trial of the cases,
opinions of Judges, Investigating Officers, Prosecutors, Lawyers and Prison officials
were collected through personal interviews with them. Secondary data have been
collected from the Journals of National Human Rights Commission, Bureau of Police
Research and Development and National Crime Records Bureau especially regarding
overcrowding and related problems, average time taken by the courts in the disposal of
cases, etc. These were supplemented by information obtained from the office of the
Superintendent of Amritsar Central Jail and Tihar Jail, Delhi regarding foreign inmates.
Observation method has also been used additionally to get information regarding living
conditions especially about the accommodation, drinking water, preparation and
24
distribution of food, sanitary conditions etc. However, most of the data have been
collected through personal interviews of the prisoners.
The difficulty faced by the researcher during collecting such data was that the
prison inmates generally refrain from talking about prison conditions and the facilities
available or their absence in the jail. It is very thorny business for a researcher to
establish rapport with the prisoners since they are wary about revealing themselves. To
overcome this drawback, some educated inmates were associated with the study. Ten
such inmates were identified and were briefed about the nature and purpose of the study.
The core issues were discussed with them in detail for one week. Thereafter, they were
requested to start collection of data through the Interview Schedule. It took considerable
cajoling and persuasion to open up and answer the questions posed to the respondents.
They had to be constantly assured that the study being conducted is strictly for academic
purposes and would have no legal bearing on their cases. Only then were they willing to
participate in the study and provide responses to various questions posed to them and talk
relatively openly.
After collection of data, it was tabulated with the help of a computer
programming in ‘Microsoft Access’ especially designed for this purpose by the
researcher. However, tabulation of unstructured questions was done manually. The
responses were presented in tabular form and comparison of variables was done in
percentage. To make the comparison more presentable, the Bar diagram, Pie chart, Line
diagram and other statistical applications were used as per requirement.
Foreigner prisoners lodged in the jails have some specific problems as they are
not in a position to enjoy some of the privileges available for the native inmates.
Therefore, there was a need to examine the human rights issues related with them
separately. For this purpose, an information sheet was designed to collect required
information in respect of all 88 prisoners of foreign background. Some part of the
information sheet was filled in by interviewing the inmates and some information was
obtained from the Prison Office. Some of the Prison Officers dealing with the foreigners
were also interviewed. Some of the inmates were found mentally unsound and, therefore,
partial information could be obtained in that respect.
25
Similarly, it was observed during the study that women inmates are also a
neglected lot in the prisons. Approximately 100 women were lodged in Amritsar Central
Jail at the time of data collection. The needs and requirements of women often differ
from their male counterparts. Women need gender-specific facilities for healthcare, to
help them in childbirth, to care for their children in prison, to receive counselling to guard
against the possibility of rape and sexual assault and to maintain contact with their
dependants outside the prison. Therefore, information was collected about women
inmates through exhaustive interviews. For this purpose, ten women inmates were
selected and interviewed.
1.5 Chapter Plan
The study has been divided into the following chapters:
Chapter One: Introduction
This Chapter highlights the nature and scope of this study throwing light on the
human rights of prisoners besides review of literature, aims and objectives and research
methodology.
Chapter Two: Socio-economic Profile of the Prisoners
This Chapter emphasizes upon socio-economic characteristics of prison inmates with
special reference to Amritsar Central Jail. This helps to be acquainted with the socio-
economic, demographic and cultural characteristics of the inmates like age, sex, category,
education, linguistic background etc on the basis of sample collected for the study.
Chapter Three: Prison Overcrowding and Human Rights
This Chapter deals with prison overcrowding and its implications. Overcrowding
results in deterioration of the general living conditions of the prisoners. This chapter also
discusses the nature and extent of overcrowding with special reference to Amritsar
Central Prison. It also looks at causes and consequences of overcrowding and suggests
remedial measures.
Chapter Four: General Living Conditions of Prisoners and Human Rights
This Chapter underlines general living conditions of prisoners especially in the
context of Amritsar Central Jail. This includes basic human needs like food, drinking
26
water, medical facilities and accommodation and sanitation. A person in any kind of
detention cannot be deprived of basic human needs.
Chapter Five: Right to Communication
This Chapter deals with prisoners’ contact with their relatives, friends and outside
world. Every prisoner either convicted or undertrial is entitled to communicate with his or
her family members, relatives and friends on regular basis within the framework of rules
and guidelines. This chapter details about the provisions made in various manuals or
guidelines regarding contact with outside world, their practical applicability and further
suggestions for improvements.
Chapter Six: Human Rights of Undertrial Prisoners
This Chapter highlights specific human rights issues of prisoners facing trials in the
courts. It includes treatment of undertrials, delay in the trial, legal aid and vexatious arrest
besides other human rights aspects.
Chapter Seven: Prisoners’ Right to Education
This Chapter describes right to education for the prisoners and also the role of
education in the reformation of prisoners as well as prison system.
Chapter Eight: Human Rights of Foreigner Prisoners
This Chapter examines specific rights having bearing on the status of foreigner
prisoners. It also throws light on the plight of internees detained in the jails even after
completion of the period of imprisonment.
Chapter Nine: Human Rights of Women Prisoners
This Chapter deals with general living conditions and human rights issues of women
inmates and their children.
Chapter Ten: Summary and Conclusions
This is the last Chapter which summarizes the present study and provides specific
recommendations and suggestions to protect the basic human rights of the prison inmates.
…………..