I must state at the very inception that I am completely in favour of respecting the legal and basic rights of accused and even prisoners as have been conferred on them by our Constitution and penal laws . No doubt , many accused and prisoners land up in prison after committing the worst crimes but still it is the duty of law makers and police in whose custody they remain that they are not deprived of their legal and basic rights owing to the depravity of the barbaric acts committed by them because two wrongs can never make a right . Needless to say , they must be punished but only in accordance with law and not in any other way . Noway .
It cannot be denied that not only in earlier times but even now the collective anger of people against criminals many times get vented on streets even when they are in police custody as people want instant justice and are not prepared to wait for decades as they feel accused can get away by exploiting the legal loopholes . This perception is totally misconceived and the earlier it is done away with , the better it shall be . We all must believe in the law of the land and should not take it in our own hands because that would only invite anarchy and lawlessness . Police and our Courts must be allowed to do their job properly without any interference from any quarter .
It is noteworthy to mention here that our Indian legal system is premised on reformative theory and rehabilitative strategy of punishment which lays emphasis on reformation , rehabilitation and preserving the human dignity of even prisoners . Have no doubt : A prisoner or an accused committing a heinous crime cannot be a valid ground to deny them their basic legal rights under any circumstances and it is the bounden duty of the police and the judiciary to ensure that they are able to avail of all their legal and basic rights as have been conferred on them by our Constitution and legal system . This is in fact the real strength of our democratic system which must be preserved under all circumstances .
Just because a heinous crime has been commissioned , it does not in anyway signify that the accused or the prisoner who has committed it is disentitled of his legal rights and basic human rights . This is exactly what even our Supreme Court which is the highest Court in India has time and again emphasised sharply . It is the bounden duty of all the High Courts and all the other lower Courts to follow it lock , stock and barrel . It needs no repetition that the judicial decisions of our various Courts have always accorded supremacy to giving due regard to the legal and basic rights of accused and prisoners and these include right to legal aid , right not to be tortured , right to have interaction with family members in the manner permitted by law , right to get medical aid whenever required etc . Such rights can be restricted only in rare circumstances and that too when it involves the security interests and have to be justified strongly by jail authorities before the concerned Courts .
Be it known , our Constitution too incorporates the basic human rights which are enshrined in Part III and which all citizens , not just lawyers or those in the legal arena should be fully aware of . It is the bounden duty of the judiciary to ensure that it is implemented completely in letter and spirit and those violating it under any circumstances are taken to task and not allowed to roam scot free . As for instance , Article 20 provides for protection in respect of conviction for offences . Article 20 ( 1 ) stipulates that , “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence , nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence .” Further , Article 20 ( 2 ) states that , “No person shall be prosecuted and punished for the same offence more than once .” In State of Rajasthan v. Hat Singh , AIR 2003 SC 791 , it was held that to attract applicability of Article 20 ( 2 ) there must be a second prosecution and punishment for the same offence for which the accused has been prosecuted and punished previously . A subsequent trial or a prosecution and punishment are not barred if the ingredients of the two offences are distinct . Among other relevant and important case laws on Article 20 ( 2 ) are Makbool v. State of Bombay , AIR 1953 SC 325 , Kalawati v. State of Himachal Pradesh , AIR 1953 SC 131 , State of Bombay v. Apte , AIR 1961 SC 578 , Raja Narayan Lal Bansilal v. Manek Phioz Mistry , AIR 1961 SC 29 , Leo Roy v. Superintendent , District Jail , AIR 1958 SC 29 and Assistant Customs Collector v. Melwani , AIR 1970 SC 962 . It was held in all these cases that the object of this provision is to avoid the harassment which must be caused to a person for successive criminal proceedings where only one crime has been committed .
Also , Article 20 ( 3 ) which is a very important safeguard provision entails that , “No person accused of any offence shall be compelled to be a witness against himself .” It has been held time and again in several cases like Dastagir v. State of Madras , AIR 1960 SC 756 , State of Bombay v. Kathi Kalu , AIR 1961 SC 1808 , RK Dalmia v. Delhi Admn. , AIR 1962 SC 1821 , Joseph v. Narayana , AIR 1964 SC 1552 ( 1556 ) , Veera Ibrahim v. State of Maharashtra , AIR 1976 SC 1167 , Nandini v. Dani , AIR 1978 SC 1025 and Balkishan v. State of Maharashtra , AIR 1981 SC 379 , paragraph 70 that the protection given to the accused commences as soon as a formal accusation is made , whether before or during prosecution . It follows that the lodging of a First Information Report , the filing of a complaint in court or the issue of a show-cause notice under a special criminal statue brings Article 20 ( 3 ) into play . but there must be a proceeding contemplating action against a particular person . However , in Dastagir v. State of Madras , AIR 1960 SC 756 , it was held that the immunity under Article 20 ( 3 ) does not extend to compulsory production of material objects or compulsion to give specimen writing , specimen signature , finger impression or compulsory exhibition of the body or giving of blood specimens . Again in State through SPE and CBI , A.P. v. M Krishna Mohan AIR 2008 SC 368 , it was held that taking specimen fingerprints and handwritings from accused is not hit by Article 20 ( 3 ) as being “witness against himself” .
Now coming to Article 21 which personally speaking , I consider as the very “heart and soul” of the Constitution . It clearly lays down that , “No person shall be deprived of his life or personal liberty except according to procedure established by law .” Even Article 3 of the Universal Declaration of Human Rights , 1948 explicitly declares that every one has the right to life , liberty and security of person . Many important case laws on various topics connected with the basic and legal rights of accused and prisoners have been decided by the Supreme Court . I shall dwell only on some of them which are landmark because it is just not possible to discuss too many case laws pertaining to the legal and basic rights of prisoners and accused and these are as follows : –
1. Cruel Punishment – In Inderjeet v. State of Uttar Pradesh , AIR 1979 SC 1867 , it was held by the Supreme Court that a punishment which is too cruel or torturesome is unconstitutional .
2. Mandatory Death Sentence – In Mithu v. State of Punjab , AIR 1983 SC 473 , paragraphs 23-25 , it was held by the Supreme Court that compulsory death sentence for murder committed by a life convict undergoing the sentence of imprisonment for life ( Section 303 , IPC ) is unconstitutional .
3. Right Of Bail – i ) In Hussainara Khatoon v. Home Secretary , State of Bihar , AIR 1979 SC 1360 , it was held by the Supreme Court that pre-trial release on personal bond ( i.e. without surety ) should be allowed where the person to be released on bail is indigent and there is no substantial risk of his absconding .
ii ) Section 50 ( 2 ) of Cr PC entails that it is the duty of the arresting officer or the duty of the Magistrate to inform the person of the offence with which he/she is being charged and also whether it is a bailable or not .
iii ) Under Section 436 ( 1 ) of Cr PC , if it is bailable , then the police officer or the Magistrate is duty bound to release the person then and there if he/she is prepared to give bail .
iv ) Under Section 436 ( 1 ) of Cr PC , where the person is arrested for a bailable offence or if security proceedings are initiated against him/her under the Code of Criminal Procedure , 1973 he/she can as a matter of right ask to be released on bail .
v ) Proviso to Section 436 ( 1 ) of Cr PC states that the arresting police officer or the Court before which the person is produced has the power to release him or her on his or her executing a bond without sureties for his or her appearance in Court thereafter .
vi ) Section 440 ( 1 ) of Cr PC mandates that neither the police officer nor the Magistrate can fix the bail amount as too high without due regard to the facts and circumstances of the case . For instance , in Moti Ram v. State of Madhya Pradesh , AIR 1978 SC 1594 , it was held that if a prisoner has been charged with stealing anything worth Rs. 1,000 he/she cannot be obligated for a bail amount of Rs. 10,000 .
vii ) Orissa High Court held in Dharmu v. Rabindranath , 1978 Cr LJ 864 ( Ori HC ) that the arresting police officer would be guilty of the offence of wrongful confinement ( Section 342 , IPC , 1860 ) , if he/she does not inform the arrested person about his/her right to bail in bailable offences or fixes too high a sum as the bail amount and thereby refuses to release on bail and detains the person .
viii ) First proviso to Section 437 ( 1 ) of Cr PC stipulates that even in case of a non-bailable offence , Court can direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail .
ix ) Under Section 437 ( 6 ) of Cr PC , if the case of an under-trial prisoner accused of a non-bailable offence is pending before a Magistrate and more than 60 days have elapsed after the first date for the recording of evidence was fixed then he/she has the right to be released on bail subject to the satisfaction of the Magistrate . The Magistrate has to record reasons for not doing so .
x ) It has been emphasized time and again by learned Judges of Supreme Court like Justice Krishna Iyer that , “Bail is the rule and jail is the exception .”
xi ) Section 50 ( 2 ) of Cr PC states that , “Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence , he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf .”
4. Protection From Torture Or Custodial Crimes – In Sheela Barse v. State of Maharashtra , AIR 1983 SC 378 , it was held by the Supreme Court that the right against custodial violence arises from Article 21 . In yet another landmark case of DK Basu v. State of West Bengal , AIR 1997 SC 610 paragraph 36 , it was held by the Supreme Court that , “For custodial death , the writ court can award compensation . Custodial death has been described as “one of the worst crimes in a civilised society , governed by the rule of law .” It was also held that , “Custodial torture is a naked violation of human dignity and degradation which destroys , to a very large extent , the individual personally . The expression life or personal liberty has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries .” Let me also point out here that in this case , the Court issued the following requirements to be followed compulsorily in all cases of arrest or detention :
1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate , visible and clear identification and name tags with their designations . The particulars of all such police personnels who carry out the arrest or handle interrogation of the arrestee must be recorded in a register .
2. The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness , who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made , it shall also be counter-signed by the arrestee and shall contain the time and date of arrest .
3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up , shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed , as soon as practicable , that he has been arrested and is being detained at the particular place , unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee .
4. The time , place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal aid organisation in the district and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest .
5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained .
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is .
7. The arrestee should , where he so requests , be also examined at the time of his arrest and major and minor injuries , if any , present on his / her body , must be recorded at that time . The “inspection memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee .
8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody or by a doctor who is on the panel of approved doctors appointed by Director , Health Services of the concerned State or Union Territory . The Director , Health Services should prepare such a panel for all tehsils and districts as well .
9. Copies of all the documents including the memo of arrest , referred to above , should be sent to the Magistrate for his record .
10. The arrestee may be permitted to meet his lawyer during interrogation , though not throughout the interrogation .
11. A police control room should be provided at all district and State headquarters , where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest , within 12 hours of effecting the arrest and it should be displayed conspicuously on the notice-board of the police control room .
Let me make it clear here that the Court also made it clear that failure to comply with the guidelines should , apart from rendering the official concerned liable for departmental action , also render him liable to contempt of the Court and the proceedings for contempt may be instituted in any High Court of the country , having territorial jurisdiction over the matter . The requirements to above flow from Articles 21 and 22 ( 1 ) of the Constitution and needs to be strictly followed . These would apply with equal force to the other Governmental agencies like Directorate of Revenue Intelligence , Directorate of Enforcement , Coastal Guard , CRPF , BSF , CISF , the State Armed Police Intelligence agencies like the Intelligence Bureau , RAW , CBI , CID , Traffic Police , Mounted Police and ITBP . These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by Courts from time to time in connection with the safeguarding of the right and dignity of the arrestee . The Court directed that these directions shall be widely circulated amongst the concerned authorities and personnels , and would be broadcasted on the All India Radio and Doordarshan .
In Kishore Singh v. State of Rajasthan , AIR 1981 SC 3393 , the Supreme Court held that the use of “third degree” method by police is violative of Article 21 and directed the government to take necessary steps to educate the police so as to inculcate a respect for the human person . I must point out here that the Supreme Court in Sunil Batra v. Delhi Administration , AIR 1978 SC 1675 , Sita Ram v. State of Uttar Pradesh , AIR 1979 SC 745 , Javed v. State of Maharashtra , AIR 1985 SC 231 , paragraph 4 and Sher Singh v. State of Punjab , AIR 1983 SC 465 held that , “An undertrial or convicted prisoner cannot be subjected to a physical or mental restraint –
( a ) which is not warranted by the punishment awarded by the court , or
( b ) which is in excess of the requirements of prisoners discipline , or
( c ) which constitutes human degradation .”
Article 5 of the Universal Declaration of Human Rights , 1948 declares that no one shall be subjected to torture or cruelty , inhuman or degrading treatment or punishment . The US Supreme court in case of Munn v. People of Illinois observed that life is not merely an animal existence . The souls behind the bar cannot be denied the same because such person does not cease to be a human being . Just being in prison doesn’t deprive them from their fundamental rights .
5. Custodial Deaths – In Shakila Abdul Gafar v. Vasant Raghunath Dhokle AIR 2003 SC 4567 , the deceased died due to brutal police assault and lack of timely medical aid . The Supreme Court expressed great concern for defect in the present criminal law due to which police atrocities and custodial crimes go unpunished and suggested amendments to Evidence Act as recommended by the Law Commission . In Raghbir Singh v. State of Haryana AIR 1980 SC 1087 , due to theft , the police took into custody a few suspects and began to torture them as part of the process of investigation . This led to death of one of the suspects . Medical examination revealed that death was caused due to asphyxiation . The police investigator was convicted under Section 302 , IPC and awarded life sentence . The Court held the problem of custodial tortures to be violative of Article 21 of the Constitution . In Nilabati Behera v. State of Orissa , ( 1993 ) 2 SCC 746 , the Supreme Court awarded compensation of Rs. 1,50,000 to the mother of the deceased who died in the police custody due to beating .
6. Compensation For Violation Of Article 21 – In Rudal Shah v. State of Bihar , ( 1983 ) 4 SCC 141 as also in Sebastian M. Hongray v. Union of India , AIR 1984 SC 1026 , the Supreme Court has held that the Court has power to award monetary compensation in appropriate cases where there has been violation of the constitutional right of citizens . In Rudal’s case , the Supreme Court held that the illegal detention of a person after his acquittal in trial , for 14 long years violated his fundamental right under article 21 . The Court probably for the first time had awarded monetary compensation of Rs. 30,000 to the person illegally detained . In Bhim Singh v. State of Jammu and Kashmir , ( 1985 ) 4 SCC 677 , the Court awarded a sum of Rs. 50,000 to the petitioner as compensation for the violation of his constitutional right of personal liberty under Article 21 of the Constitution . In this case , the petitioner who was an MLA was arrested and detained in police custody and deliberately prevented from attending session of the Legislative Assembly . In Dhananjay Sharma v. State of Haryana , AIR 1995 SC 1795 , the Supreme Court held that right to compensation for illegal detention is a fundamental right under Article 21 of the Constitution . In People’s Union for Democratic Rights v. Police Commissioner , Delhi Headquarter ( 1989 ) 4 SCC 730 , a labourer was taken to the police station for doing some work . He was severely beaten when he demanded wages after completing his work . He ultimately succumbed to the injuries . It was held by the Supreme Court that the State was liable to pay Rs. 75,000/- as exemplary compensation to the family of the deceased . In Saheli v. Commissioner of Police , AIR 1990 SC 513 , the Supreme Court directed the Delhi administration to pay Rs. 75,000/- as exemplary compensation to the mother of a 9 years old child who died due to beating by the police officer . In Kewal Pati v. State of Uttar Pradesh , ( 1995 ) 3 SCC 600 , the Court has awarded compensation to the widow of a convict who was killed in jail by a co-accused while serving his sentence under Section 302 IPC as it resulted in deprivation of his life contrary to law and in violation of Article 21 . A prisoner does not cease to have constitutional right except to the extent he has been deprived of it in accordance with law . His death was caused due to the failure of jail authorities to protect him . Accordingly , the Court directed the Government to pay a compensation of Rs. 1,00,000 to the widow and children of the deceased .
7. Right Against Handcuffing – No arrested person or under-trial prisoner should ever be subjected to handcuffing in the absence of justifying circumstances by the police . In State of Maharashtra v. Ravikant S. Patil , ( 1991 ) 2 SCC 373 , an under-trial prisoner was handcuffed and paraded on streets . He was suspected to be involved in a murder case . The Bombay High Court held that handcuffing and parading of the petitioner was unwarranted and violative of Article 21 and directed the Inspector of Police who was responsible for this , to pay Rs. 10,000 by way of compensation . The Supreme Court too upheld the judgment but held that the police official was not liable personally as he acted as an official . In Prem Shankar v. Delhi Administration , AIR 1980 SC 1535 , the Supreme Court added yet another projectile in its armoury to be used against the war for prison reform and prisoners rights . In this case , the validity of certain clauses of Punjab Police Rules were challenged as violation of Articles 14 , 19 and 21 of the Constitution . Justice Krishna Iyer ( now retired ) of the Supreme Court while delivering the majority judgment held that provisions in paras 26 , 22 of the Punjab Police Rules that every undertrial who was accused of a non-bailable offence punishable with more than three years jail-term would be handcuffed , were violative of Articles 14 , 19 , 21 of the Constitution . It was also held that handcuffing should be resorted to only when there is “clear and present danger of escapee” breaking out of the police control and for this there must be clear material , not merely an assumption . In special circumstances the application of iron is not ruled out . But even where in extreme cases , handcuffing is to be put on the prisoner , the escorting authority must record simultaneously the reasons for doing so otherwise under Article 21 of the Constitution , the procedure would be unfair and bad in law . This is implicit in Article 21 which insists upon fairness , reasonableness and justice in the procedure for deprivation of life and liberty . It was also held that , “Handcuffing is prima facie inhuman and , therefore , unreasonable , is overharsh and at the first flush , arbitrary . Absence of fair procedure and objective monitoring , to inflict ‘irons’ is to resort to zoological strategies repugnant to Article 21………”
In Sunil Gupta v. State of MP , ( 1990 ) 3 SCC 119 , the petitioners were educated persons and social workers , who were remanded to judicial custody were taken to court from jail and back from court to the prison by the escort party handcuffed . They had staged a dharna for a public cause and voluntarily submitted themselves for arrest . They had no tendency to escape from the jail . In fact , they even themselves refused to come out on bail but chose to continue in prison for the public cause . It was held by the Supreme Court that this act of the escort party was violative of Article 21 of the Constitution . There was no reason recorded by the escort party in writing for this inhuman act . The Court directed the government to take appropriate action against the erring escort party for having unjustly and unreasonably handcuffing the petitioners . Handcuffing is permitted only in extraordinary circumstances . In Citizen for Democracy v. State of Assam , ( 1995 ) 3 SCC 743 , the Supreme Court expressed serious concern over the violation of the law laid down by that Court in Prem Shankar Shukla’s case against handcuffing of undertrial or convicted prisoners by the police authorities . In this case , Mr Kuldip Nayar an eminent journalist in his capacity as President of “Citizen for Democracy” through a letter brought out to the notice of the Court that the seven TADA detenues lodged in the hospital in the State of Assam were handcuffed and tied with a long rope to check their movement . Security guards were also posted outside the hospital . The Court treated the letter as a petition under Article 32 of the Constitution and held that handcuffing and in addition tying with ropes of the patient-prisoners who are lodged in the hospital is inhuman and in violation of human rights guaranteed to an individual under international law and the law of the land . Where a person is arrested by the police without warrant and the police officer is satisfied on the basis of the above guidelines that it is necessary to handcuff such a person he may do so till the time he is taken to the police station and thereafter his production before the Magistrate . Further use of fetters thereafter can only be under the orders of the Magistrate . The Magistrate may grant the permission to handcuff the prisoner in rare cases . I must add here that the Supreme Court has given directions to the Union of India to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in the following cases : –
( i ) Prem Shankar Shukla v. Delhi Administration , AIR 1980 SC 1535 .
( ii ) Altemesh Rein v. Union of India , AIR 1988 SC 1768 .
( iii ) Citizens for Democracy v. State of Assam , AIR 1996 SC 2193 .
( iv ) Charles Shobhraj v. Superintendent , Central Jail , AIR 1978 SC 1514 .
( v ) T. Vatheeswaran v. State of Tamil Nadu , AIR 1983 SC 361 ( 2 ) .
8. Right To Speedy Trial – In Hussainara Khatoon ( No. 1 ) v. Home Secretary , State of Bihar , AIR 1979 SC 1360 followed also in Kadra Pahadiya v. State of Bihar , AIR 1982 SC 1167 , a petition for a writ of habeas corpus was filed by a number of undertrial prisoners who were in jails in the State of Bihar for years awaiting their trial . The Supreme Court held that “right to a speedy trial” a fundamental right is implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution . Speedy trial is the essence of criminal justice . Let me point out here that in America speedy trial is one of the constitutionally guaranteed right under the Sixth Amendment . Bhagwati , J. , ( as he then was ) held that although , unlike the American constitution speedy trial is not specifically enumerated as a fundamental right , it is implicit in the broad sweep and content of Article 21 as interpreted in Maneka Gandhi’s case . It was held that no procedure which does not ensure a reasonable quick trial can be regarded as ‘reasonable , fair or just’ . For this reason , the Supreme Court ordered the Bihar Government to release forthwith the undertrial prisoners on their personal bonds . In Hussainara Khatoon ( No. 2 ) AIR 1979 SC 1369 and Hussainara Khatoon ( No. 3 ) AIR 1979 SC 1377 cases the Supreme Court reiterated the same view . In Kartar Singh v. State of Punjab , 1994 Cri LJ 3139 , it was held that speedy trial is a component of personal liberty .
In Raj Deo Sharma v. The State of Bihar , AIR 1998 SC 3281 , the question before the Court was whether on the facts and circumstances of the case , the prosecution against the petitioner was to be quashed on the ground of delay in the conduct of trial . The petitioner had never suffered incarceration . His application for bail was ordered on the day he appeared before the Court and presented the same . Allowing the appeal , the Supreme Court gave the following directions : –
( a ) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years , whether the accused is in jail or not , the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not , within the said period and the court can proceed to the next step provided by law for the trial of the case .
( b ) In such cases as mentioned above , if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence , the trial Court shall release the accused on bail forthwith on such conditions as it deems fit .
( c ) If the offence under trial is punishable with imprisonment for a period exceeding 7 years , whether the accused is in jail or not , the Court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed , whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case .
In a landmark judgment in Abdul Rehman Antulay v. RS Nayak , AIR 1992 SC 1630 , the Supreme Court has laid down detailed guidelines for speedy trial of an accused in a criminal case but it declined to fix any time limit for trial of offences . The burden lies on the prosecution to justify and explain the delay . The Court held that the right to speedy trial flowing from Article 21 is available to accused at all stages namely the stage of investigation , inquiry , trial , appeal , revision and retrial . The concerns underlying the right to speedy trial from the point of view of the accused are : –
( i ) the period of remand and pre-conviction detention should be as short as possible . In other words , the accused shall not be subjected to unnecessary or unduly long detention point of his conviction .
( ii ) the worry , anxiety , expense and disturbance to his vocation and peace resulting from an unduly prolonged investigation , inquiry or trial shall be minimal ; and
( iii ) undue delay may result in impairment of the ability of the accused to defend himself whether on account of death , disappearance or non-availability of witnesses or otherwise .
The Court said that the accused cannot be denied the right of speedy trial merely on the ground that he had failed to demand a speedy trial . As regards the time limit the Court said that it has to be decided by balancing the attendant circumstances and relevant factors , including nature of offence , number of accused and witnesses , the workload of the court etc. No time limit can be fixed for speedy trial . If the Court comes to the conclusion that the right to speedy trial of an accused has been infringed the charges for the conviction shall be quashed . But this is not the only course open . The nature of offence and other circumstances may be such that quashing of proceedings may not be in the interest of justice . In such a case it may make an order that the trial may be concluded within a fixed time and where it is concluded reducing the sentence .
In Raghubir Singh v. State of Bihar , ( 1986 ) 4 SCC 481 , the accused persons who were being tried for waging war against the State filed writ petitions under Article 136 before the Supreme Court for quashing the proceedings before the Special Judge on the ground of violation of their right to speedy trial under Article 21 of the Constitution . The Court held that there was no delay in investigation and trial of their cases warranting the quashing of proceeding against them . The Court held that the right of a speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by Article 21 . But the question whether the right to speedy trial was infringed depends upon various factors . Was the delay owing to the nature of the case ? Was the delay caused by the prosecuting agency ? Was it due to the tactics of the defence ? In the instant case , it was found that the delay was caused due to the tactics of the accused as they did assert their rights which was evident from the number of petitions filed before the Magistrate , and the special judge from time to time . The delay in investigation and trial was the outcome of the nature of the case and the general situation prevailing in the country .
Now coming to a very recent landmark case , in Sanjay Chandra v. CBI , AIR 2012 SC 830 , well known as 2G scam case with which we all are familiar , the appellants facing charges under Sections 420-B , 468 , 471 and 109 of IPC and Section 13 ( 1 ) ( d ) of Prevention of Corruption Act , 1988 , were denied bail by the Special Judge , CBI and also by the High Court . The Supreme Court directed the appellants to be released on bail subject to certain conditions and held that , “In determining whether to grant bail both the seriousness of the charge and severity of punishment should be taken into consideration . Bail is not to be denied merely because of the sentiments of community against the accused . The detention of undertrial prisoners in jail custody to an indefinite period violates Article 21 . Every person detained or arrested is entitled to speedy trial . It looks that the appellants have to remain in jail longer than the period of detention , if they are convicted .
9. Delay In Speedy Justice Violates Article 21 – In Moses Wilson v. Karturba , AIR 2008 SC 379 , the suit was filed in 1947 for a sum of Rs. 7000/- and continued for 60 years and had not been disposed of until now . The Supreme Court expressed concern in delay in disposal of cases and directed the concerned authorities to do needful in the matter urgently before the situation goes totally out of control . Because of delay in disposal of cases people in this country are fast losing faith in the judiciary . In Vakil Prasad Singh v. State of Bihar , AIR 2009 SC 1822 , the Supreme Court has again emphasized the need for speedy investigation and trial of constitutional protection enshrined in Article 21 of the Constitution . In Hardeep Singh v. State of MP , AIR 2012 SC 1751 , the accused was acquitted of the charge of cheating after more than ten years of stretched trial . The Divisional Bench awarded him a compensation of Rs. 70,000/- without prejudice to any claim for damages . The Supreme Court enhanced the amount of compensation to Rs. 2,00,000/- thinking it to be just as the accused had undergone a lot of mental trauma .
10. Fair Trial Includes Fair Investigation – In Nirmal Singh Kahlon v. State of Punjab , AIR 2009 SC 984 , the Supreme Court has held that fair trial includes fair investigation . Fair investigation and fair trial are concomitant to preservation of fundamental right of an accused under Article 21 of the Constitution .
11. Right Of Appeal – In Dilip S. Dahanekar v. Kotak Mahindra Co. Ltd. , ( 2007 ) 6 SCC 528 , it was held by the Supreme Court that the right of appeal from a judgment of conviction as under Section 374 of Cr PC is a fundamental right . It is obvious . Neither can be interfered with or impaired nor can it be subjected to any condition .
12. Right To Be Informed Of Grounds Of Arrest And To Consult And Be Defended By A Lawyer – Article 22 ( 1 ) of the Constitution says that , “No person who is arrested shall be detained in custody without being informed , as soon as may be , of the grounds for such arrest nor shall he be denied the right to consult , and to be defended by a legal practitioner of his choice” . This provision has been inserted to basically check the arbitrary arrest of the accused and to make the accused aware why the arrest is being made so that he can explore his/her legal options and consult a lawyer and be defended by one of his/her own choice . In Tarapada v. State of West Bengal , AIR 1951 SC 174 , it was held by the Supreme Court that the right to be informed of grounds of arrest is necessary to enable the arrested person to know the grounds of his arrest and to prepare for his defence . Article 22 is in the nature of a directive to the arresting authorities to disclose the grounds of arrest of a person immediately . The words used in Article 22 ( 1 ) are ‘as soon as may be’ which means as nearly as is reasonable in the circumstances of a particular case . Article 9 of the Universal Declaration of Human Rights , 1948 affirms that none shall be subjected to arbitrary arrest , detention or exile .
In State of MP v. Shobharam , AIR 1966 SC 1910 , it was held by the Supreme Court that if the grounds of arrest is delayed it must be justified by ‘reasonable circumstances’ . This right of being informed of the grounds of arrest is not dispensed with by offering to make bail to the arrested person . In a landmark judgment in Joginder Kumar v. State of UP , ( 1994 ) 4 SCC 260 , the Supreme court has laid down guidelines governing arrest of a person during the investigation . This is intended to strike a balance between the needs of police on one hand and the protection of human rights of citizens from oppression and injustice at the hands of law enforcing agencies . The Court has held that person is not liable to arrest merely on the suspicion of complicity in an offence . There must be some reasonable justification in the opinion of the police officer effecting the arrest that such arrest was necessary and justified . Let me also shed some light here on the fact that the National Police Commission in its third report has pointed out that power of arrest is one of the chief sources of corruption in the police . According to the report , nearly 60 percent of the arrests were either unnecessary or unjustified . In Gopalan v. State of Madras , AIR 1950 SC 27 and also in Hansmukh v. State of Gujarat , AIR 1981 SC 28 , it was held by the Supreme Court that information about grounds of arrest is mandatory under clause ( 1 ) of Article 22 of Constitution . Section 303 of Cr PC also stipulates that , “Any person accused of an offence before a Criminal Court , against whom proceedings are instituted under this Code , may of right be defended by a pleader of his choice .”
13. Right To Free Legal Aid At State’s Expense – Where a person is not having enough means to engage a lawyer , Section 304 of Cr PC which deals with legal aid to accused at State expense in certain cases comes into play . It states that –
1. “Where , in a trial before the Court of Session , the accused is not represented by a pleader , and where it appears to the Court that the accused is not represented by a pleader , and where it appears to the Court that the accused has not sufficient means to engage a pleader , the Court shall assign a pleader for his defence at the expense of the State .
2. The High Court may , with the previous approval of the State Government , make rules providing for –
( a ) the mode of selecting pleaders for defence under sub-section ( 1 ) ;
( b ) the facilities to be allowed to such pleaders by the Courts ;
( c ) the fee payable to such pleaders by the Government , and generally , for carrying out the purposes of sub-section ( 1 ) .
3. The State Government may , by notification , direct that , as from such date as may be specified in the notification , the provisions of sub-sections ( 1 ) and ( 2 ) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before the Courts of Session .”
Delhi High Court held in Matloob v. State ( Delhi Admn. ) , ( 1997 ) 3 Crimes 989 ( Del ) that the entitlement to free legal aid is not dependent on the accused making an application to that effect and the court is obliged to inform the accused of his right to obtain free legal aid . In Suk Das v. Union Territory of Arunachal Pradesh , ( 1986 ) 5 SCC 401 , the Supreme Court has held that failure to provide free legal aid to an accused at the State cost , unless refused by the accused , would vitiate the trial . He need not apply for the same . It was also held that free legal aid at the State cost is a fundamental right of a person accused of an offence and this right is implicit in the requirement of reasonable , fair and just procedure prescribed by Article 21 . This right cannot be denied to him on the ground that he has failed to apply for it . The Magistrate is under an obligation to inform the accused of this right and inquire that he wishes to be represented on the State’s cost , unless he refused to take advantage of it . In this case , the appellant was tried and sentenced to two years imprisonment under Section 506 read with Section 34 , IPC . He was not represented at the trial by any lawyer by reason of his inability to afford legal representation . The High Court held that the trial was not vitiated since no application was made by him . On appeal the Supreme Court set aside the conviction on the ground that he was not provided legal aid at the trial which was violative of Article 21 of the Constitution .
In Veena Sethi v. State of Bihar , AIR 1983 SC 339 , the Free Legal Aid Committee , Hazaribagh brought to the notice of the Court through a letter about certain prisoners being illegally detained in Hazaribagh jail for two or three decades for no fault of theirs and the prisoners were released on Court’s orders . In MH Hoskot v. State of Maharashtra , AIR 1978 SC 1548 , the Supreme court applied the ruling of case of Maneka Gandhi v. Union of India , AIR 1978 SC 597 . Regarding the right to free legal aid , Justice Krishna Iyer declared , “This is the State’s duty and not Government’s charity .” It was held that if a prisoner is unable to exercise his constitutional and statutory right of appeal including special leave to appeal for want of legal assistance , there is implicit in the Court , under Article 142 , read with Articles 21 and 39-A of the Constitution , the power to assign counsel to the prisoner provided he does not object to the lawyer named by the Court . Equally , is the implication that the State which sets the law in motion must pay the lawyer an amount fixed by the Court . In State of Maharashtra v. Manubhai Pragaji Vashi , ( 1995 ) 5 SCC 730 , the State of Maharashtra had denied grants-in-aid of the private recognized Law Colleges on the ground of paucity of funds . The Court held that this could not be the reasonable ground for denial of grant-in-aid to such colleges . The Court in this case has considerably widened the scope of the right to free legal aid . The Court held that in order to provide “the free legal aid” it is necessary to have well-trained lawyers in the country . This is only possible if there are adequate number of law colleges with necessary infrastructure , good teachers and staff . Since the Government is unable to establish adequate number of law colleges , it is the duty of the Government to permit establishments of duly recognized private law colleges and afford them grants-in-aid on similar lines on which it is given to Government recognized law colleges . This would facilitate these colleges to function effectively and in a meaningful manner and turn out sufficient number of well-trained or properly equipped law graduates in all branches year after year . This will in turn enable the State and other authorities to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability . The right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21 . Article 39A provides “equal justice” and “free legal aid” . It means justice according to law . In a democratic polity , governed by the rule of law , it should be the main concern of the State to have a proper legal system . The Court therefore directed the State to afford grant-in-aid to the private colleges in order to ensure that they should function effectively and turn out sufficient number of law graduates in all branches every year which will in turn enable the State to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability .
In Rajoo alias Ramakant v. State of Madhya Pradesh , AIR 2012 SC 3034 , the appellant in a gang rape case convicted by the trial court preferred an appeal to the High Court but there he remained unrepresented . The High Court did not inquire the appellant whether he needed legal assistance and upheld his conviction . The case records were remitted back to the High Court for a fresh hearing as the High Court had not provided the appellant an opportunity of obtaining legal assistance . This is the obligation of the court to inquire the accused or convict whether he or she requires legal representation at State expense . Neither the Constitution nor the Legal Services authorities Act makes any distinction between a trial and an appeal for purpose of providing free legal aid to an accused or a person in custody .
14. Right To Fair Trial – In Rattiram v. State of MP through Inspector of Police , AIR 2012 SC 1485 , it was held by the Supreme Court that , “Fair trial is the heart of criminal jurisprudence and , in a way , an important facet of democratic polity that is governed by the Rule of Law . Denial of fair trial is crucification of human rights . It is ingrained in the concept of due process of law” . Article 10 of the Universal Declaration of Human Rights , 1948 states that everyone is entitled in full equality in fair and public hearing by an independent and impartial tribunal , in the determination of his rights and obligations and of any criminal charge against him .
15. Right Against Delayed Execution – In TV Vatheeswaran v. State of Tamil Nadu , AIR 1981 SC 643 , a two-Judge Bench of the Supreme Court held that delay in execution of death sentence exceeding 2 years would be sufficient ground to invoke the protection of Article 21 and the death sentence would be commuted to life imprisonment . In Sher Singh v. State of Punjab , AIR 1983 SC 465 , the three-Judge Bench of Apex Court agreed with this view that prolonged delay in the execution of a death sentence was an important consideration for invoking Article 21 for judging whether sentence should be allowed to be executed or should be converted into sentence of imprisonment . Prolonged detention to await the execution of a sentence of death is an unjust , unfair and unreasonable procedure and the only way to undo the wrong is to quash the death sentence . However , the Court held that this cannot be applied as a rule in every case and each case should be decided on its own facts . The Court should consider whether the delay was due to the conduct of the convict ( where he pursues series of legal remedies ) , the nature of offence , its impact on the society , its likelihood of repetition , before deciding to commute the death penalty into a sentence of life imprisonment .In the instant case the delay was found to be due to the conduct of the convict and therefore it was held that the death sentence was not liable to be quashed . Accordingly , the Court overruled the decision in TV Vatheeswaran’s case .
But in Javed Ahmad v. State of Maharashtra , AIR 1985 SC 231 , where the delay in execution of death sentence of more than 2 years and the conduct and behaviour of the accused in the jail , evident from the report of the jail authorities show that he was showing genuine repentance it was held that the death sentence could be commuted to life imprisonment . Ultimately , in Triveni Ben v. State of Gujarat , AIR 1989 SC 142 , a five Judge Bench of the Supreme Court held that undue long delay in execution of the death sentence will entitle the condemned person to approach the Court for conversion of death sentence into life imprisonment , but before doing so the court will examine the nature of delay and circumstances of the case . No fixed period of delay could be held to make the sentence of death inexecutable . In the present case the death penalty of the accused was converted into life imprisonment .
16. Right To Be Lodged Appropriately Based On Proper Classification –
i) All female prisoners have the right to be lodged separately from all male prisoners , either in separate prisons or in a separate building of the same prison complex . Section 27 ( 3 ) of the Prisons Act , 1894 states that both male and female under-trial prisoners have the right to be lodged separately from male and female convicts separately .
ii ) First time under-trial and convict prisoners involved in minor offences have the right to be lodged separately from habitual criminals and those involved in serious offences as per Section 27 ( 3 ) of the Prisons Act , 1894 . In Charles Sobhraj v. Superintendent , Tihar Jail , AIR 1978 SC 1514 , it was held by Apex Court that classification of prisoners ( under prison rules ) on the basis of ordinary or dangerous prisoners and prisoners under sentence of death is valid .
iii) Similarly adolescent and non-habitual female prisoners involved in trivial offences have the right to be lodged separately from habitual and older prisoners .
iv ) Civil prisoners have the right to be lodged separately from criminal prisoners .
v ) In Rakesh Kaushik v. BL Vig , Superintendent , Central Jail , Delhi , AIR 1981 SC 1767 , it was held by apex Court that inequality and discrimination on the basis of social and financial status of prisoners is prohibited . Affluent criminals cannot be treated with luxury while lowly indigents are treated as pariahs .
17. Rights Of Women Prisoners – i) As per Section 24 ( 3 ) , Prisons Act , 1894 , a woman prisoner admitted to jail can be searched for prohibited items and injuries only by a matron appointed for the jail under the orders of the medical officer and only with strict regard to decency and away from the view of all male officers and prisoners .
ii ) Every woman prisoner has the right to be examined and treated as far as possible only by a lady doctor and lady assistant even when she is taken to a hospital outside the jail .
18. Right To Clean Environment – Section 13 of Prisons Act , 1894 stipulates that every prisoner has the right to a clean and sanitized environment in the jail free from any kind of disease-ridden or disease-causing atmosphere . It is the responsibility of the medical officer of the jail to ensure that the environment of the jail is sanitised .
19. Right To Medical Examination And Timely Medical Services In Prison – i) Section 24 ( 2 ) of Prisons Act , 1894 states that every prisoner has the right to be examined by the Medical Officer soon after admission to determine whether he or she is suffering from any contagious diseases ; or has any wound or injury on his/her body sustained during torture in police custody or during transport to the jail , as well as to determine the class of labour he/she is fit for if he/she has received a sentence of rigorous imprisonment .
ii ) Every prisoner has the right to be attended to and treated for any disease from which he/she is suffering by a competent doctor at the time of admission to the jail or which he/she contracts while in jail .
iii ) Section 26 ( 3 ) of Prisons Act , 1894 provides that a prisoner has the right not to be forcibly discharged from the jail against his/her will if he/she is suffering from any acute or dangerous disease and until the medical officer certifies that he/she is fit to be discharged .
iv ) Section 26 ( 2 ) of Prisons Act , 1894 lays down that every prisoner has the right to be medically examined by the medical officer before being transferred to any other jail . He/She can be transferred only once the medical officer certifies that the prisoner is free from any serious illness which would otherwise have rendered transfer dangerous .
v ) Section 29 of Prisons Act , 1894 states that every prisoner confined to a solitary cell , either as punishment or for any other reason , has the right to be visited and examined by a medical officer or medical subordinate at least once in a day .
vi ) Section 35 ( 2 ) of Prisons Act , 1894 stipulates that prisoners , who are undergoing rigorous imprisonment as part of their sentences or are engaged in hard labour on their own , have the right to be medically examined by the medical officer from time to time and their weight examined and recorded in their history tickets once in every fortnight by the medical officer .
vii ) Section 35 ( 3 ) of Prisons Act , 1894 says that if the medical officer after any periodical examination of any such prisoner is of the opinion that the prisoner is not fit for the particular kind of hard labour , then he shall not be employed for such labour but shall be placed on such other kind of labour as the medical officer may consider suitable for him .
viii ) Section 39A of Prisons Act , 1894 entails that the Superintendent has the power to send a prisoner for special treatment to a hospital or asylum outside the jail if the condition of the prisoner so demands .
20. Right Not To Be Put In Solitary Confinement Beyond A Certain Period – Section 73 of IPC lays down that , “Whenever any person is convicted of an offence for which under this Code the Court has power to sentence him to rigorous imprisonment , the Court may , by its sentence , order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced , not exceeding three months in the whole , according to the following scale , that is to say –
a time not exceeding one month if the term of imprisonment shall not exceed six months ;
a time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year ;
a time not exceeding three months if the term of imprisonment shall exceed one year” .
Section 74 of IPC dealing with limit of solitary confinement states that , “In executing a sentence of solitary confinement , such confinement shall in no case exceed fourteen days at a time with intervals between the periods of solitary confinement of not less duration than such periods ; and when the imprisonment awarded shall exceed three months , the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded , with intervals between the periods of solitary confinement of not less duration than such periods .”
Craving my readers indulgence , I would also like to mention here that under Section 30 ( 2 ) of the Prisons Act , 1894 every prisoner under sentence of death shall be confined to a cell apart from all others prisoners and shall be placed by day and by night under the charge of a guard . Justice Krishna Iyer ( now retired ) of the Supreme Court stated quite categorically in Kishor Singh Ravinder Dev v. State of Rajasthan , AIR 1981 SC 625 that , “Solitary confinement has to be resorted to only in the rarest of rare cases for security reasons to make it in consonance with Article 21 of the Constitution .”
21. Right Against Bar Fetters – In Sunil Batra v. Delhi Administration , AIR 1978 SC 1675 ( Para 187 ) , the Court laid down following set of conditions precedent for placing bar fetters on prisoners , which are applicable to all prisoners : –
( i ) absolute necessity for fetters ;
( ii ) special reasons why no other alternative but fetters will alone secure custodial assurance ;
( iii ) record of those reasons contemporaneously in extensor ;
( iv ) such record should not merely be full but be documented both in the journal of the Superintendent and the history ticket of the prisoner . This later should be in the language of the prisoner so that he may have communication and recourse to redress ;
( v ) the basic condition of dangerousness must be well grounded and recorded ;
( vi ) all these are conditions precedent to ‘irons’ save in a great emergency ;
( vii ) before preventive or punitive irons ( both are inflictions of bodily pain ) natural justice in its minimal form shall be complied with ( both audi alteram and the nemo judex rules ) ;
( viii ) the fetters shall be removed at the earliest opportunity . That is to say , even if some risk has to be taken it shall be removed unless compulsive considerations continue it for necessities of safety ;
( ix ) there shall be a daily review of the absolute need for the fetters , none being easily conceivable for nocturnal manacles ;
( x ) if it is found that the 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 .
In other part of the Sunil Batra’s judgment , the Supreme Court dealt with the case of Charles Sobhraj v. Supdt. Central Jail , Tihar , AIR 1978 SC 1514 . His grievance was against the disablement , by bar fetters of undertrials and for unlimited duration . The judge visited the Tihar jail and saw Shobhraj standing in chains in the yard , with iron on wrists , iron on the ankles , iron on waist and iron to link up firmly riveted at appropriate places . There were a number of undertrial prisoners with bar fetters in the jail and many of them were minors . Reacting sharply to the plea of prison authorities based on security aspect , the Court observed : “Assuming a few are likely to escape , would you shoot a hundred prisoners or whip everyone everyday or fetter all suspect to prevent one jumping jail ? These wild apprehensions have no value in our human order , if Articles 14 , 19 and 21 are the prime actors in the Constitutional play …. 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 or 19 or even by way of abundant caution .”
Justice Krishna Iyer himself by relying on Sunil Batra’s case , proclaimed in Prem Shankar Shukla v. Delhi Administration , AIR 1980 SC 1535 that handcuffing is prima facie inhuman and , therefore , not reasonable , is over harsh and at the first flush arbitrary . To inflict ‘irons’ was said to be to resort to zoological strategies repugnant to Article 21 . In Kishore Singh’s case , AIR 1981 SC 625 also it was stated in the same vein that this can be done only in the rarest of rare cases . In Kadra Pahadiya v. State of Bihar , AIR 1981 SC 939 , it was held that undertrial prisoners too cannot be kept in leg irons .
22. Right To Parole – Parole is granted to a prisoner to alleviate the rigorous life of prison and to enable him/her to spend some time with family . In State of Haryana v. Nauratta Singh , AIR 2000 SC 1179 , it was held by the Supreme Court that parole relates to executive action taken after door has been closed on a convict . During parole period there is no suspension of sentence but sentence is actually continuing to run during that period also . In Suresh Chandra v. State of Gujarat , AIR 1976 SC 2462 , it was held by the Supreme Court that , “Parole , by which it is meant conditional liberation , that is , living in accordance with specified rules , is a provision , which is prevalent in various countries of the world . Ours is one of them . the advantage of parole is that it provides an opportunity for the offender to attempt adjustment to the community under the guidance of the parole officer . He is expected to obey certain rules that restrict his activities and associates under the advice of his parole officer . While giving the offender this opportunity , the community is partially protected from further criminal activities during the parole period , for the offender may be immediately returned to prison without a trial until the expiration of his original sentence if he commits another crime or breaks any of the rules imposed upon him by the conditions .”
23. Rights Of Prisoners To Have Interview – In Prabha Dutt v. Union of India , AIR 1982 SC 6 , the Supreme Court held that it would be a part of fundamental freedom of the press to interview prisoners sentenced to death . In another case , Francis Coralie Mullin v. Union Territory of Delhi , AIR 1981 SC 746 , the Supreme Court held that a detenue has a fundamental right to have interview with his legal advisor and family members and that it is a part of his fundamental right under Article 21 . Recently in a landmark case – R Raja Gopal v. State of Tamil Nadu , AIR 1995 SC 264 , the supreme Court held that even a prisoner condemned to death also has a fundamental right to privacy under Article 21 .
24. Right Not To Be Publicly Hanged – In Attorney General of India v. Lachma Devi , AIR 1986 SC 467 , it was held by the Supreme Court that the execution of death sentence by public hanging is barbaric and violative of Article 21 of the Constitution . It is true that the crime of which the accused have been found to be guilty is barbaric ; a barbaric crime does not have to be visited with barbaric penalty such as public hanging .
25 . Right To Adequate Clothing And Food – It is the right of prisoners or accused to get substantial food and adequate clothing and it is the bounden duty of jail authorities to ensure that the same is implemented completely and that no one suffers due to lack of it .
26. Right To Get Equitable Wages For Work Done – In State of Gujarat v. Hon’ble High court of Gujarat , AIR 1998 SC 3164 , it was held by the Supreme Court that no prisoner can be asked to do labour without wages . It is not only the legal right of a workman to have wages for the work but it is a social imperative and an ethical compulsion . Extracting somebody’s work without giving him anything in return is only reminiscent of the period of slavery and the system of beggar . like any other workman a prisoner is also entitled to wages for his work . It is imperative that the prisoners should be paid equitable wages for the work done by them . In order to determine the quantum of equitable wages payable to prisoners the State concerned shall constitute a wage fixation body for making recommendations . We direct each State to do so as early as possible . Until the State Government takes any decision on such recommendations every prisoner must be paid wages for the work done by him at such rates or revised rates as the Government concerned fixed in the light of the observations made above . For this purpose we direct all the State Governments to fix the rate of such interim wages within six weeks from today and report to this court of compliance of this direction .
27. Right Of Prisoners Sentenced To Simple Imprisonment , Detenues and Undertrials Not To Be Compelled To Do Labour – A person sentenced to simple imprisonment cannot be required to work unless he volunteers himself to do the work . Neither the undertrial internees nor the detainees with simple imprisonment nor even detenues who are kept in jail as preventive measures can be asked to do manual work during their prison term . It is a different matter that he is allowed to do it at his own request .
28. Right To Food And Water – Rule 20 of “Standard Minimum Rules for the Treatment of Prisoners” adopted by UN and India is a party too clearly lays down 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 . And drinking water shall be available to every prisoner whenever he needs it .
29. Good Conditions Of Prisons – In TN Mathur v. State of UP , 1993 Supp 1 SCC 722 , the petitioner raised the immediate problems of the conditions of the lock-up at the place called Unnao in the State of UP . It is alleged that the lock-up is wholly unhygienic , insanitary and unfit for human habitation .The Supreme Court therefore issued an interim direction to the State of UP , that wherever such detentions are stored to the persons detained must be housed in a lock-up which will provide at least 40 sq. ft. per person with minimal facilities of some furniture such as a cot for each of the detained persons and supply of potable water . having regard to the climate conditions of the place , the lock-up should provide for an electric fan . There must be hygienic arrangements for toilet . The State shall ensure the satisfaction of these conditions wherever such arrests and detentions are resorted to .
30. Right To Security – It is the duty of the State to provide security to prisoners . If it fails in providing adequate security and some prisoner is killed , the Government has to pay compensation to the dependants of the deceased persons .
31. Right To Publication – In State of Maharashtra v. Prabhakar Pandurang , AIR 1966 SC 424 , it was held by the Supreme Court that the person detained under Preventive Detention Act was not permitted to hand over his written work to his wife for publication is violative of Article 21 of the Constitution of India . In R Rajgopal v. State of Tamil Nadu , AIR 1995 SC 264 , it was held by the Supreme Court that to deny the permission of publication of autobiography of Auto Shanker under the fear of defamation of IAS , IPS and its officials have no authority in law to impose prior restraint on publication of defamatory matter . The public official can take action only after the publication is found to be false .
32. Right To Education – All prisoners or accused have the right to pursue education which they want to from jail itself and this has been repeatedly held by not only various High courts but also Supreme Court several times .
33. Right To Speech And Expression – Every citizen has a right to impart and receive information as part of his right to information . The State is not under an obligation to respect the right of the citizen , but equally under an obligation to ensure conditions under which this right can be meaningfully and effectively enjoyed by one and all . Right to speech and expression can be limited only by reasonable restrictions under a law for the purposes mentioned in Article 19 ( 2 ) of our Constitution .
34. Right To Be Released on Due Date – It is the legitimate right of all prisoners to be released on due date and they cannot be detained for a single minute any longer unless they have compelling reasons which they will have to explain satisfactorily .
35. Right To Have Interview With Family Members – It is the right of the prisoner to have interview with not only lawyer of his choice but also any of family member after taking permission and fulfilling the requisite formalities . In Francis Coralie v. Union Territory of Delhi , AIR 1981 SC 746 ,the Supreme Court held that the detenu’s right to have interview with his lawyer and family member is part of his ‘personal liberty’ guaranteed by Article 21 of the Constitution and cannot be interfered with except in accordance with reasonable , fair and just procedure established by law .
36. Right To Be Produced Before Magistrate Within 24 Hours – In a landmark judgment in CBI v. Anupam J Kulkarni , ( 1992 ) 3 SCC 141 , it was held that when a person is arrested under Section 57 of Cr PC , he should be produced before the nearest Magistrate within 24 hours . This provision is made so that the accused or prisoner is not unduly harassed or tortured by the police . Also , Article 22 ( 2 ) of Constitution also provides that , “Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate .
37. Right Not To be Killed In Fake Encounter – In People’s Union for Civil Liberties v. Union of India , AIR 1997 SC 1203 , the Supreme Court held that killing of two persons in fake encounter by the police was clear violation of the right to life guaranteed in Article 21 of the Constitution and the defence of sovereign immunity does not apply in such case . The Court awarded Rs. 1,00,000 as compensation for each deceased .
38. Right To Know Of Grounds Of Arrest – Section 50 ( 1 ) of Cr PC states that , “Every police officer or other person making any arrest under this Code shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest” .
This list is not exhaustive in itself . The Supreme Court and various High Courts in our country have time and again stood strongly in defence of safeguarding the basic and legal rights of prisoners or accused against misuse by the jail authorities or anyone else . This is where the real strength of our Indian democratic system lies which we all must understand and also appreciate . Those who commit crime must be punished but only in accordance with law and under no circumstances should their basic and legal rights be violated by jail authorities or anyone else under any circumstances . This is exactly what our Constitution and our legal system envisages .
I must state at the very inception that I am completely in favour of respecting the legal and basic rights of accused and even prisoners as have been conferred on them by our Constitution and penal laws . No doubt , many accused and prisoners land up in prison after committing the worst crimes but still it is the duty of law makers and police in whose custody they remain that they are not deprived of their legal and basic rights owing to the depravity of the barbaric acts committed by them because two wrongs can never make a right . Needless to say , they must be punished but only in accordance with law and not in any other way . Noway .