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Vinita Singh


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Guaranteed under Indian Constitution

BY- Vinita Singh B.A. LLB

“Human rights are those minimal rights, which every individual must have against the State, or other public authority, by virtue of his being a ‘member of human family’ irrespective of any consideration.”

– Justice Durga Das Basu



Human beings are born equal in dignity and rights. These are moral claims which are inalienable and inherent in all individuals by virtue of their humanity alone, irrespective of caste, colour, creed, and place of birth, sex, cultural difference or any other consideration. These claims are articulated and formulated in what is today known as human rights.



“In our world prisoners are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from driftwood juveniles to heroic dissenters”.

– Justice V.R. Krishna Iyer

The word “prisoner” means any person for the time being in a prison as a result of any requirement imposed by a court or otherwise that he be detained in legal custody. A prisoner also known as an inmate is anyone who is deprived of liberty against their will. This can be by confinement, captivity, or by forcible restraint.


“Convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess.”

– Justice V.R. Krishna Iyer

The Indian socio-legal 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.

It is the human life that necessitates human rights. Being in civilized society organized with law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. Even if the person is confined or imprisoned because of his wrong, he is entitled to their rights unaffected by the punishment for wrongs, simply because if a person under trial, his rights cannot be discarded as a whole.

“No one shall be subject to torture or cruel, inhuman or degrading treatment of punishment”

– (UDHR, 1948)

Prisoners have basic legal rights that can’t be taken away from them. These include:

• The right to food and water.

• Protection from bullying, violence and racial harassment.

• Being able to get in contact with solicitor.




Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is a national or foreigner.

Article 21- Protection of life and personal property;

No person shall be deprived of his or personal liberty except according to procedure established by law.

The Article 20(1) ,protect the person from ex post facto laws or retroactive criminal legislation; i.e. when at the time, he committed the crime, if no conditions of harsh labour was prescribed by the court, then, it cannot be enacted or inflicted upon him, for which the imprisonment is prescribed.

The Article 20(2), it has been provided that no person shall be put into trouble twice, for the same offence, (rights against double jeopardy) i.e. the principle of nemo debet vis vexari.

Article 20(3), provides for the protection against ‘testimonial compulsion’, i.e. the protection against compulsion to be a witness is only confined to persons accused of an offence. A right against self- incrimination is given under this.

Right to speedy trial is a fundamental right of a prisoner implicit in article 21 of the Constitution. It ensures just, fair and reasonable procedure. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less right of accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

Article 19; “freedom of speech and expression”, “freedom to become member of an association” and also the rights to acquire, hold and dispose property are enjoyed by the prisoners even they are behind bars, within the limitations of the prison.

To handcuff is to hoop harshly and to punish humiliatingly. The minimum freedom of movement, under which a detainee is entitled to under Article 19, cannot be cut down by the application of handcuffs. Handcuffs must be the last refuge as there are other ways for ensuring security.

Article 14; gives the right to equality and equal protection before laws. So, prisoners too have their own rights. If any excesses committed on a prisoner, by the police is considered as a violation of rights and it warrants the attention of the legislature and judiciary. The right to meet friends, relatives and lawyers are provided under article 14 and article 21. Such rights are reasonable and non-arbitrary. Even prison regulations recognize the right of prisoners to have interview with a legal adviser necessary, in a reasonable manner. Right to free legal aid is also provided under this article 14 and 21.

Article 22(1), The prisoner also has the right to consult and to be defendant by a lawyer under this article.

Article 22(4) to (7) provides special safeguards for the protection of prisoner’s rights. A prisoner has the right to be informed about the grounds on which he was arrested, under this article.

Article 39(A), The state shall secure that the operation of the legal system promotes justice, on the 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 disabilities

If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, for want of legal assistance, there is implicit in the court under article 142 read with article 21 and 39 A of the Constitution, power to assign council for such imprisoned individual for doing complete justice. Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so required, assign competent counsel for the prisoners defense, provided the party doesn’t object to that lawyer.



The Indian Supreme Court has been active in responding to human right violations in Indian jails and has, in the process, recognized a number of rights of prisoners by interpreting Articles 21, 19, 22, 32, 37 and 39 A of the Constitution in a positive and humane way.

Given the Supreme Court’s overarching authority, these newly recognized rights are also binding on the State under Article 141 of the Constitution of India which provides that the Law declared by the Supreme Court shall be binding on all courts within the territory of India.


Following are the reasons cited in various case laws for which prisoner’s rights were recognized and upheld by the Indian judiciary.

• “Convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess”

– Justice V.R. Krishna Iyer

• “Like you and me, prisoners are also human beings. Hence, all such rights except those that are taken away in the legitimate process of incarceration still remain with the prisoner. These include rights that are related to the protection of basic human dignity as well as those for the development of the prisoner into a better human being.”

– (Charles Shobraj vs. Superintendent, 1978)

• If a person commits any crime, it does not mean that by committing a crime, he/she ceases to be a human being and that he/she can be deprived of those aspects of life which constitutes human dignity.

• It is increasingly being recognized that a citizen does not cease to be a citizen just because he/she has become a prisoner.

• Prisoners depend on prison authorities for almost all of their day to day needs, and the state possesses control over their life and liberty, the mechanism of rights springs up to prevent the authorities from abusing their power. Prison authorities have to be, therefore, accountable for the manner in which they exercise their custody over persons in their care, especially as regards their wide discretionary powers.

• Imprisonment as punishment is now rethought of as rehabilitative punishment. This involves a philosophy that individuals are incarcerated so that they have an opportunity to learn alternative behaviours to curb their deviant lifestyles. Correction, therefore, is a system designed to correct those traits that result in criminal behaviour. The rehabilitative model argues that the purpose of incarceration is to reform inmates through educational, training, and counseling programmes. This development and growth requires certain human rights without which no reformation takes place.

• Disturbing conditions of the prison and violation of the basic human rights such as custodial deaths, physical violence/torture, police excess, degrading treatment, custodial rape, poor quality of food, lack f water supply, poor health system support, not producing the prisoners to the court, unjustified prolonged incarceration, forced labour and other problems observed by the apex court have led to judicial activism (NHRC, 1993).

• Overcrowded prisons, prolonged detention of under trial prisoners, unsatisfactory living condition and allegations of indifferent and even inhuman behaviour by prison staff has repeatedly attracted the attention of critics over the years. Unfortunately, little has changed. There have been no worthwhile reforms affecting the basic issues of relevance to prison administration in India.

– (Justice A N Mulla Committee, 1980-83)



Infliction of Custodial violence is illegal as well as unconstitutional, but even then, it is still in practice. Custodial Violence is a violation of fundamental human rights and freedoms, according to Universal Declaration of Human Rights regarding custodial torture and abuse of power by law enforcement authorities.


Even though there are a number of articles in constitution and many sections in the Criminal Procedure Code, 1973, Indian Penal Code, 1860 and Evidence Act, 1872, which safeguards the interest of the prisoners, the question of whether there is a proper implementation, is an important aspect to be noted. Even in this present scenario, we find many cases of torturing to death in the police stations, infliction of custodial violence upon the prisoners, etc.

Are the rights of the prisoners guaranteed to them enforced in an effective manner?


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