July 1, 2018:
Human Rights of Undertrial Prisoners with Special Reference to Woman Undertrial Prisoners By Puspita Sinha (Download PDF)
The Author, Puspita Sinha is a 3rd Year student of ICFAI University, Tripura. She is currently interning with LatestLaws.com.
Abstract
A human may be under conviction or prison still he /she possesses some basic human right for surviving a dignified life. In that article a constitutional right of prisoners was shown along with the interpretation of proper case studies for the justification of the law. And also specify about the importance of international mandate relating to women prisoners. Also the implication of 7th schedule of the Indian Constitution thereof.
INTRODUCTION
Law of the land was evolved through various sociological principles, digest and commentaries moreoverprecedent and legislation. A person who committed crime had to undergo the penance. He was alsorequired to undergo punishment.
According to Manu, the danda alone governs all protectedbeings, alone protects them, watches over them while they sleep, the wise they declare it (to beidentified with) the law. Kautilya uses the word for administration of justice and he uses the word danda; for science of Government .The human rights are said to be the natural and basic birth rights of all human beings without any discrimination.All human beings are entitled to some basic rightsby virtue of being as a member of natural family. Everyone is equally liable for all these basic andinalienable, natural or birth rights of human. Human rights are also available to person under detentionincluding convicted or under trial prisoners.Prison systems are primarily designed and run by men for the incarceration of men. In every country ofthe world, women are a small minority of those incarcerated. As a result they find themselves held infacilities and under conditions that, at best, have been poorly adapted for the male model or atworst, are the same as those for men. Although women remain a small percentage of the total number in prison but their numbers are increasing day by day.
Other than basic human needs right to life also enables a person to avail the guarantees of protection in cases of criminal justice administration. Theright to life also includes the right to justice which includes fair trial. The focus of interesting penology isthe individual and the goal is salvaging him for society (Sirohi, 2004). This study relates to the rightsrelated to the women convicts, under trials and offenders in the aspect of right to life.
CONSTITUTIONAL RIGHTS FOR THE PRISONERS IN INDIA
Part III and Part IV of the Indian Constitution enumerated various principles of human rights specifiedunder International Bills of rights. Article 14 of Indian Constitution provides equality before law and equal protection of laws, it states that; State shall not deny to any person equality before the law orequal protection of the laws within the territory of India.
Article 19 provides for protection of allfreedoms like to freedom of speech and expression ,to assemble peaceably and without arms, to formassociations or unions, to move freely throughout the territory of India ,to reside and settle in any part ofterritory of India, to practice any profession or to carry any occupation trade or business.
Article 20 provides for protection in respect of conviction for offences(1) No person shall be convicted of anyoffence except for violation of a law in force at the time of the commission of the act charged as anoffence, nor be subjected to a penalty greater than that which might have been inflicted under the lawin force at the time of the commission of the act charged as an offence ,nor be subjected to a penaltygreater than that which might have been inflicted under the law in force at the time of the commissionof the offence.(2) No person shall be prosecuted and punished for the same offence more than once.(3)No person accused of any offence shall be compelled to be a witness against himself.
Article 21 protects right to life with personal liberty except according to procedure established by Article 22 provides (1) No person who is arrested shall be detained in custody without being informed, as soon asmay be ,of the grounds for such arrest shall be detained in custody without being informed ,as soon asmay be ,of the grounds for such arrest nor shall he be detained the right to consult and to be defendedby a, legal practitioner of his choice.(2) Every person who is arrested and detained in custody shall beproduced before the nearest magistrate within a period of twenty four hours of such arrest excludingthe time necessary for a journey from the place of arrest to the court of the magistrate and no suchperson shall be detained in custody beyond said period without the authority of a magistrate.
Seventh schedule of Indian Constitution also states about Article 246 and in second list i.e. State list Entry No 4 provides for law making power of State Government on the matter of prisons.
The Supreme Court carried the ratio of habeas corpus case (ADM JABALPUR v. SRIKANT SUKLA) that Article 21 is the sole repository of life and liberty and during the emergency when liberty issuspended, due to presidential proclamation suspending Article 21.
INTERNATIONAL MANDATE RELATING TO CUSTOIDIAL RIGHT OF WOMEN
Women prisoners are found to suffer from variety of health hazard in the custodial environment. Arecent study on women prisoners in the UK reported that imprisonment impacted their health negatively. The initial shock of imprisonment, separation from families and serious mental problemeffects their own mental health.
According to Amnesty International on woman in prison women are denied essential medical resources and treatments especially during pregnancy.
Article 46 Clause 3 says about institutional services, it states that, to secure forgoing ends personnel shallbe appointed on a full-time basis as professional prison officers and have civil service status withsecurity of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequateto attract and retain suitable men and women, employment benefits and condition of service shall befavorable in view of the nature of the work. (THE UNITED NATIONS RULES FOR THE TREATMENT OF WOMAN PRISONERS)
RIGHTS OF UNDERTRIAL PRISONERS IN INDIA
- RIGHT TO SPEEDY TRIAL
In Hussainara Khatoon (II) v. Home Secretary, State of Bihar, the Court while dealing with the cases ofunder trials who had suffering from the long time held that a procedure which keeps such large numberof people behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so asto be in conformity with the requirement of Article 21.
- No handcuffing
In the absence of justifying circumstances an arrested person or under trial prisoners should not besubjected to handcuffing.In Perm Shankar Sukla v Delhi Administration,held that when the accused are found to beeducated,selflessly devoting their work to public good on bail able offence there is no reason forhandcuffing while taking them prison to the Court.
- Right to legal Aid
In Madhav Hayawadan Rao Hosket v. State of Maharashtra, Three Judges Bench of Supreme Court comprising of Justice V.R Krishna Ayer, Justice D.A Desai and Justice O.Chinnappa Reddy while reading Articles 21 and 39-A, Section 142 and Section 304 of IPC declared that the Government was under duty bound to provide legal services for the accused persons.
- RIGHTS AGAINST INHUMAN TREATMENT OF PRISONERS
Article 21 provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. And human rights is a part and parcel of dignified life. So that the expression of personal life include gurantee against toture and assault by the State or its functionaries.
IN THE CASE OF A.K GOPALAN V. UNION OF INDIA1
In that case the petitioner A.K Gopalan, a communist leader was detained under the Preventive Detention Act, 1950. He was challanged that the validity of his detention under the Act on the ground,that it was violative of his right to freedom of movement under Article 19(1)(d) which is the very essence of personal liberty guranteed by Article .21 Of the Indian Constitution.
- RIGHT TO BE INFORMED AND TO MEET FAMILY MEMBERS AND FRIENDS
IN THE CASE OF SUNIL BATRA (II) v. DELHI ADMINISTRATION
Where the Supreme Court recognized that the right of the prisoners to be visited by their friends and relatives. The Court favoured their visits but subject to search and discipline and other security criteria. Visit to prisoners by family and friends are solace in insultation, and only a dehumanized system can derive vicarious delight in depriving prison inmates of this humane amenity. These rights are inherent in Articles 21 and 22(1) of the Comstitution and require be recognizing and protecting.
- RIGHT TO ENGAGE LAWYERS
IN THE CASE OF HUSSAINARA KHATOON v. HOME SECRETARY, BIHAR
Honourable Supreme Court states that it is the Constititional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indegence or incommunicado situation to have free legal services provided to him and State and the State is under Constitutional duty to provide a lawyer to such person if the needs of justice so require. If free legal services are not provided the trial itself may be vitiate as contradict Article 21.
- NARCO ANALYSIS OR BRAIN MAPPING
In the emerging development of science and technology Narco analysis, polygraph test and brain mapping found to be most wanted tools for investigating agencies. But unfortunately the process was termed as breach of right to privacy of a prudent man. Such test was priviously conducted many a times in Arushi murder Case, Abu Salem case, Pragya Thakur case etc.
In the case of SELVI AND ORS v. STATE OF KARNATAKA3
Supreme Court judgment holding the use of narco analysis brain mapping amd polygraph test on accused, suspects and witnesses without their consent is unconstitutional, and violation of the right to privacy.
Conclusion
Separate woman prisons are essential to keep the women prisoners 2. Women prisoners being womanseparate prison is required according to their necessities.The increasing number of under trial prisonersis also must be reduced do decrease the burden of judiciary. Moreover the reformative ideology is mustbe implemented accordingly so that after releasing from the jail a person must not be suffer from socialnegligence and successfully can exercise right to profession and run his or her family.
- AIR 1950 SC 27
- International Journal of law and Jurisprudence studies: ISSN:2348-8212 volume2 Issue3.
- Criminal Appeal No 1267 of 2004.
