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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISKHAPATNAM, A.P, INDIA

PROJECT TITLE Prisoners Rights in International Law SUBJECT Public International Law

NAME OF THE FACULTY Dr. Aruna Kammili

Name of the candidate: Roll Number: Semester:

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Acknowledgement I would like to express my heartfelt gratitude to our beloved Dr. Aruna Kammili for giving me this wonderful opportunity to do a project on the topic Relevancy of Motive. It helped me to know many new things and gain knowledge. I have put all my effects to collect the information and to complete this project. I would also like to thank my university ‘Damodaram Sanjivayya National Law University’ for providing me with all the required materials for the completion of my project.

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Table of Contents 

Abstract



Synopsis

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Introduction

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Historical background of prisoners’ rights

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Development of series of international treaties

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Rights of Prisoners under other statutory provisions

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Rights under International Covenant

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Freedom from Torture and Cruel, Inhuman or Degrading Treatment or Punishment

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Human rights of prisoners

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Human Rights of prisoners: National and International Instruments

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Rules applicable to Special Category

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Conclusion

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Suggestion

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Bibliography

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Abstract Prisoners’ Rights in International Law The protection and respect for the rights of a person depends upon his status, whether he is a citizen or non-citizen, freeman or prisoner, child or adult, male or female, meaning the enjoyment of some rights are not absolute but can be interfered with by the State. International laws guarantee rights against forced labour, cruel, inhuman or degrading treatment or punishment and the right to work, and wages. Also, the treaties have not defined what "cruel, inhuman or degrading punishments" are. Further, there is no yardstick in determining where forced labour stops and where cruel or inhuman treatment or punishment commences. These issues will be discussed thoroughly in this study by using exploratory and evaluative legal research as the methodology. Federal and state laws govern the establishment and administration of prisons as well as the rights of the inmates. Although prisoners do not have full constitutional rights, they are protected by the Eighth Amendment's prohibition against cruel and unusual punishment. This protection also requires that prisoners be afforded a minimum standard of living. Regardless, prisoners retain some constitutional rights, such as due process in their right to administrative appeals and a right of access to the parole process. Additionally, the Equal Protection Clause of the Fourteenth Amendment applies to prison inmates, protecting them against unequal treatment on the basis of race, sex, and creed, and the Model Sentencing and Corrections Act, created by the Uniform Law Commission in 1978, provides that a confined person has a protected interest in freedom from discrimination on the basis of race, religion, national origin, or sex. Prisoners also have rights to speech and religion, to the extent these rights do not interfere with their status as inmates.

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Synopsis Prisoners Rights in International Law

Introduction: Prisoners' rights in international law are found in a number of international treaties. For the most part these treaties came into existence following the two World Wars and the body of law continues to be added to and amended. The rights of civilian and military prisoners are governed by both national and international law. International conventions include the International Covenant on Civil and Political Rights; the United Nations' Minimum Rules for the Treatment of Prisoners, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of Persons with Disabilities. For a person’s rights to be protected, it depends upon his status whether he is a citizen or non-citizen, male or female, a freeman or a prisoner which means that the enjoyment of all the rights is not absolute. Rather the state has the authority to interfere. International law guarantees so many rights. Among them the right against forced labour, inhuman punishments and the right to wok and wages pay a vital role. But these rights whether they are applicable to the prisoners who are in the custody of the state is in question. Also, there is no clear meaning in any of the treaties about what is cruel, inhuman or degrading punishments are.

Research question: 

Whether these rights are extended to prisoners who are in the custody of the State?



What amount to cruel or inhuman punishment in one country may not be necessarily the same in another country?

Literature review: The research has relied upon various textbooks, international conventions, treaties, articles and cases of international court of justice to this project.

Objective of the study: The objective of the research is mainly on the rights of the prisoners against forced labour, receive wages, ill treatments against them and the prisoner’s rights to work. These

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aspects will be covered clearly in the project along with interpretation their effects and conventions on rights of prisoners.

Research methodology: The research form is mainly doctrinal method and covers with rational approach, which involves explanation, argument and opinion.

Scope of the study: The research will be discussing briefly the concept of solitary confinement of the prisoners in the united states and brings some advantages and disadvantages relating to this topic. As the study of rights of prisoners in international law is a broad perspective, the research will be mainly focusing on the rights on the rights of prisoners against forced labour, ill treatment against them and discuss about some important conventions and treaties in the international law. Significance of the study: The study of prisoner’s right is very important because they also retain other human rights which protect us all, such as the right to life, the right to be free of inhuman and degrading treatment and the right to a free trade. The present study mainly aims to tell the people to protect the prisoners from assault and discrimination and harassment against them in the international perspective.

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Introduction All human beings are born equal and endowed by their creator with some basic rights. These basic rights are mainly right to life, and liberty, but if any person doesn’t comply with the ethics of the society then that person is deprived of these rights with punishment1 and this is known to be a criminal and the person who is punished shall be consider as a prisoner. Therefore the prisoner means in the simplest sense the offender who commits an offence punishable by law. As the function of the state is to maintain peace in the society it is necessary that the criminals shall be kept away from the society, therefore the place where the criminals are kept away from the society such place is known as “prison”. The term prison consists of rooms which are known as “cell” and the criminals who kept in prison are known as prisoners. The prisoners are of two types one is men prisoner and another is women prisoner and there is separate prisons made for men and women. The rights of civil and military prisoners are governed by both national and international law. International conventions include the International Covenant on Civil and Political Rights; the Unit Nations' Minimum Rules for the Treatment of Prisoners and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Prison system means the administration of jail it means that management of jail authority about the prisoner. As the purpose of the punishment is to reform the criminal, the criminals are kept in prisons which are away from the society and this place is known as ’prison’. Prison system is existed in India from the ancient time. Before independence the prisoners were treated as a slave, they usually exploited by jail authority but after independence several reforms are made and basic rights are given to the prisoners and thereby lots of development have taken place in the jail system. In the ancient period the attitude to prisons, prisoners and punishment was brutal and barbaric. Recognition of the human being in the convicted offender is an idea that has been accepted after a long struggle with the state. In order to fully appreciate the magnitude of the problem and the parameters relevant to reforms in the context of human rights, it would be desirable to look at the evolution of prison administration over the years. Until the late 18 th century, prisons were used as debtor’s prisons. They imprisoned debtors who could to pay off their creditors. Different countries imprisoned debtors who could not pay off their creditors. Different countries imprisoned debtors; delinquent juvenile, 1

WWW.LEGALSERVICEINDIA.COM

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etc jails were mostly dark, overcrowded and filthy. All types of prisoners were herded together with no separation of men and women, young and old, convicted and un convicted, sane and insane. In India various committees, commissions were set up, they published their reports, submitted to Governments on the prison conditions in Indian therefore various prison reforms2 were suggested in the Indian prison system. The protection and respect for the rights of a person depends upon his status, whether he is a citizen or non-citizen, freeman or prisoner, child or adult, male or female, meaning the enjoyment of some rights are not absolute but can be interfered with by the State. International laws guarantee rights against forced labour, cruel, inhuman or degrading treatment or punishment and the right to work, and wages. The question to ask is whether these rights are extended to prisoners who are in the custody of the State? Also, the treaties have not denned what “cruel, inhuman or degrading punishments” are. What amount to cruel or inhuman punishment in one country may not be necessarily the same in another country. Further, there is no yardstick in determining where forced labour stops and where cruel or inhuman treatment or punishment commences. Historical background of prisoners’ rights. The events of World War I and World War II had a profound effect on international law due to the widespread denial of civil rights and liberties on the basis of racial, religious, and political discrimination. The systematic use of violence, including murder and ultimately genocide, the use of slave labour, abuse and murder of prisoners of war, deportations, and confiscation of property forced changes to the status quo. Over the proceeding decades, large scale changes began to occur in all areas of international law, and prisoners’ rights were no exception. Now, there are international instruments 

the European Convention on Human Rights,



the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

Further there are recommendations which lay down codes by which prisoners should be dealt with. Foremost amongst them are  2

the International Covenant on Civil and Political Rights,

Refer K.P.Malic and Dr.K.C.Rawal,Law and social transformation in India,Allahabad 2007,1 st edition page 412

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

the UN Standard Minimum Rules for the Treatment of Prisoners,

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the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment



the Convention on the Rights of Persons with Disabilities.

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the European Prison Rules. Prison system means the administration of jail it means that management of jail authority

about the prisoner. As the purpose of the punishment is to reform the criminal, the criminals are kept in prisons which are away from the society and this place is known as ’prison’. Prison system is existed in India from the ancient time. Before independence the prisoners were treated as a slave, they usually exploited by jail authority but after independence several reforms are made and basic rights are given to the prisoners and thereby lots of development have taken place in the jail system. In the ancient period the attitude to prisons, prisoners and punishment was brutal and barbaric. Recognition of the human being in the convicted offender is an idea that has been accepted after a long struggle with the state. In order to fully appreciate the magnitude of the problem and the parameters relevant to reforms in the context of human rights, it would be desirable to look at the evolution of prison administration over the years. Development of series of international treaties The history of international law examines the evolution and development of public international law in both state practice and conceptual understanding. Modern international law developed out of Renaissance Europe and is strongly entwined with the development of western political organisation at that time. The development of European notions of sovereignty and nation states would necessitate the development of methods for interstate relations and standards of behaviour, and these would lay the foundations of what would become international law. However, while the origins of the modern system of international law can be traced back 400 years, the development of the concepts and practises that would underpin that system can be traced back to ancient historical politics and relationships thousands of years old. Important concepts are derived from the practice between Greek citystates and the Roman law concept of gentium (which regulated contacts between Roman citizens and non-Roman people). These principles were not universal however. In East Asia, political theory was based not on the equality of states, but rather the cosmological supremacy of the Emperor of China. 9

Rights of Prisoners under other statutory provisions National Commission for women on “Custodial Justice for women” The report of the National Commission for Women on “Custodial Justice for women, (1993)” have drawn attention towards the rights of women prisoner and thereby rights given by the national commission for women are enumerated under the Jail Manual, these rights are explained follows the following are some important aspects, many of which do not cast any financial burden for their implementation:1. Women prisoners-like men-should be informed of their rights under the law. 2. Women constables should conduct searches. 3. Medical check-ups of women prisoners or under trials should be done by women doctors as soon as they come to prison. 4. Women prisoners should be allowed to contact their families and communicate with their lawyers, women social workers, and voluntary organizations. 5. Women prisoners should be allowed to keep their children with them. Voluntary organizations of women should be encouraged to be associated with women prisoners. 6. Separate jails should be provided for women. 7. Special prosecution officers should be available to present the case of women prisoners. From these rights’ researcher comes to the conclusion that these rights are related only to the women prisoners. These rights are also prescribed under the constitution of India. Under various Prisons acts: Various rights have been guaranteed under various Acts viz. The Prisons Act, 1984, The Prisons Act, 1900, etc. The rights can be mentioned asI.

There must be separation of prisoners as male or female prisoners, Un convicted or convicted civil prisoners or criminal prisoners.

II.

No cell shall be used for solitary confinement unless it is furnished. Proper food, clothing and bedding should have to be provided to all prisoners, etc.

Rights of non-citizens.

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All the rights which are available to a prisoner are also available to the non-citizens. Therefore, with these rights it is correct to say that there shall not be any discrimination between the citizens and non-citizens under criminal jurisprudence. All the laws, rules made to the criminals are applicable to the citizens as well as non-citizens thereby all the rights given to them are also applicable to them. Thus, these are the rights given to the prisoners under the constitution of India, criminal procedure code, Universal Declaration of Human Rights, under international covenant and under the prison Act. Therefore, the duty to provide these rights on the shoulder of State which consider as an implementing authority. Rights under International Covenant The rights under the covenant are the explanatory illustrations of the human right theory, that which is proposed under Universal Declaration of Human Rights The covenant separated the two kinds of the rights in two groups i.e. covenant on civil and political rights and economic, social and cultural rights, which inter maidens with the human life apparently at two levels for the case of prisoners the both covenants get applicable integrated Ely and which serves a mixed recopy of human life’s.3 The specification of the rights belongs to the prisoners can be illustrated as follows: 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrary deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the ti me of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

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5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women. 6. Nothing in this article shall be involved to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant. 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.4 8. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. 9. No one shall be required to perform forced or compulsory labour. 10. Any work or service, normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; 11. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of is liberty except on such grounds and in accordance with such procedure as are established by law. 12. Anyone one is arrested shall be informed, at the ti me of arrest, of the reasons for is arrest and shall be promptly informed of any charges against him. 13. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of judgment.5 14. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 15. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Aidan Hehir Andrew Mumford,International Law, Security and Ethics: Policy Challenges in the Post-9/11 World,Taylor & Francis Ltd ,2011 5 Christian Parenti and Alex Friedman, Capitalist Punishment: Prison Privatization and Human Rights, Clarity Press, March 4, 2015. 4

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16. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.6 17. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvinced persons; 18. Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. 19. No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. 20. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a trinomial disputes or the guardianship of children. 21. Everyone charged with a criminal offence s hall right to be presumed innocent until proved guilty according to law.7 22. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in fully equality: a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his choosing. c) To be tried without undue delay; d) To be tried in his presence, and to defend himself in person or through legal assistance

of is own choosing; to be

informed, if he does not have legal

assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it,

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Routledge,Long-Term Imprisonment and Human Rights ,Taylor & Francis Ltd, 2010 K.P.Malic and Dr.K.C.Rawal,Law and social transformation in India,Allahabad 2007,1 st edition

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e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; g) Not to be compelled to testify against him or to confess guilt. h) In the ca se of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 23. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.8 24. When a person has by a final decision been convicted of a criminal offence and when subsequently has conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly attributable to him. 25. No one shall be liable to be tried or punished against for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. Competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern man.9 26. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to

Meron Theodor,The Making of International Criminal Justice ,Oxford University Press,2011 Christian Parenti and Alex Friedman, Capitalist Punishment: Prison Privatization and Human Rights, Clarity Press, March 4, 2015. 8 9

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the commission of the offence, provision is made by law for the imposition for the lighter penalty, the offender shall benefit thereby.10 27. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. The researcher from the above discussion concludes that the rights guaranteed under the international covenant on civil and political rights are also covered under the constitution of India and Criminal procedure code of India. Freedom from Torture and Cruel, Inhuman or Degrading Treatment or Punishment Another basic right guaranteed by the international instruments is the protection from torture, cruel, inhuman or degrading treatment. This right has a direct bearing on the protection of prisoners against torture. Article 5 of the Universal Declaration States. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 7 of the Political Covenant repeats this language verbatim. Similarly, Article 3 of European convention and Article 5 of the American Convention guarantee this protection Article 5(2) of the American convention provides: persons deprived of their liberty shall be treated with respect to the inherent dignity of the human person. This is a very important right of persons under confinement which secures them a humane treatment respecting the human dignity of such persons. Article 5 and other provisions seek to humanize prisons by providing several rights to prisoners. Thus, Article 5 (4) provides: Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subjected to separate treatment appropriate to their status as un-convicted persons. For the protection of minors subject to criminal proceedings, Article 5(5) provides that, they shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. Regard aims of punishment Art. 5 (6) provides that punishments consisting of deprivation of liberty shall have, as an essential aim, the reform and social re-adaptation of the prisoners. Thus, the treatment of prisoners in prisons are mandated to be humane.

Human rights of prisoners

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The freedom struggle played a crucial role in initiating the process of identifying certain rights for the prisoners. After independence, the Constitution of India conferred a number of fundamental rights upon citizens. Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether (s)he is a national or foreigner. Article 21. Protection of Life and Personal Liberty; “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Interpreting Article 21 of the Constitution, has developed human rights jurisprudence11 for the preservation and protection of prisoners‟ rights to maintain human dignity. Although it is clearly mentioned that deprivation of Article 21 is justifiable according to procedure established by law, this procedure cannot be arbitrary, unfair or unreasonable. In a celebrity case (Maneka Gandhi Vs. Union of India., 1978), the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty. This was further upheld (Francis Coralie Mullin v. The Administrator, 1981) “Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful”. Any violation of this right attracts the provisions of Article 14 of the Constitution, which enshrines right to equality and equal protection of law. In addition to this, the question of cruelty to prisoners is also dealt with, specifically by the Prison Act, 1894 and the Criminal Procedure Code (CRPC). Any excess committed on a prisoner by the police authorities not only attracts the attention of the legislature but also of the judiciary. The Indian judiciary, particularly the Supreme Court, in the recent past, has been very vigilant against violations of the human rights of the prisoners Role played by the judiciary. The need for prison reforms has come into focus during the last three to four decades. The Supreme Court and the High Courts have commented upon the deplorable conditions prevailing inside the prisons, resulting in violation of prisoner’s rights. Prisoners‟ rights have become an important item in the agenda for prison reforms. a) “Convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess”- Justice V.R. Krishna Iyer (Sunil Batra vs. Delhi Administration., 1978). b) “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. 11

Dr. U.C Jha, Human Rights and Justice, International Documents, Vij books India Pvt. Ltd. 2010, October.

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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). c) 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. d) It is increasingly being recognized that a citizen does not cease to be a citizen just because he/she has become a prisoner. e) The convicted persons go to prisons as punishment and not for punishment (Jon Vagg., 1994) Prison sentence has to be carried out as per the court’s orders and no additional punishment can be inflicted by the prison authorities without sanction (Sunil Batra vs. Delhi Administration., 1978). f) 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. g) 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 counselling programmes. This development and growth requires certain human rights without which no reformation takes place. h) 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 of 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). i) Overcrowded prisons, prolonged detention of under trial prisoners, unsatisfactory living condition and allegations of indifferent and even inhuman behavior by prison staff has repeatedly attracted the attention of critics over the years. There have been no worthwhile reforms affecting the basic issues of relevance to prison administration in India. (Justice A N Mulla Committee, 1980-83) Rights of the prisoners have been expressed under the Indian 17

Constitution as well as Indian laws governing prisons. The Supreme Court and High Court rulings have played a crucial role in enumerating the rights of prisoners. A land mark judgment by Justice V.R. Krishna Iyer enumerated basic human rights of the prisoners. Mr. Sunil Batra had written a letter from Tihar Jail, Delhi to the Supreme Court providing information about the torture and inhuman conditions of the prison. This case has become a landmark case in prison reforms (Sunil Batra Vs Delhi Administration, 1980) Human Rights of prisoners: National and International Instruments The idea of rights of prisoners was long suppressed under the colonial rule and has only recently emerged in public discourse.

The Constitution of India confers a number of

fundamental rights upon citizens. The Indian State is also a signatory to various international instruments of human rights, like the Universal Declaration of Human Rights which states that: “No one shall be subject to torture or cruel, inhuman or degrading treatment of punishment” (UDHR, 1948)Also important is the United Nations Covenant on Civil and Political Rights which states in part: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. (UNICCPR, 1966)There are many United Nations codified standards of treatment for prisoners across different economic, social and cultural contexts in a number of documents. These concern themselves with ensuring those basic minimum conditions in prisons which are necessary for the maintenance of human dignity and facilitate the development of prisoners into better human beings. International documents, which have articulated the prisoners‟ rights, are listed in the accompanying table. Table 1. International Conventions/Regulations on Prisoners’ Human Rights Standard Minimum Rules for the Treatment of Prisoners (OHCHR, 1955)Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN Medical Ethics, 1982) Convention Against Torture (UNCAT, 1984)Body of Principles for the Protection of All Persons under Any Form of Detention

or

Imprisonment. (Principles of Detention, 1988) Basic Principles for the Treatment of Prisoners (UNPTP, 1990) United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules, 1990) Declaration on the Protection of all Persons from Enforced Disappearance. General Assembly Resolution 47/133 (UNDPPED, 1992) United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules, 1985) Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 18

(UNVCAP, 1985)Therefore, both under national as well as international human rights law, the state is obliged to uphold and ensure observances of basic human rights. Rules applicable to Special Category: 1. Prisoners under Sentence: The purpose and justification of a sentence of imprisonment or a similar measure deprive of liberty is ultimately to protect society against crime. 12 This end can only be achieved if the period of imprisonment is used to ensure, as far as possible, that upon his return to society the offender is not only willing but able to lead a law abiding and selfsupporting life. For this purpose, the institution should utilise all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available and should seek to apply them according to the individual treatment needs of the prisoners. (i) Treatment: The treatment of persons sentenced to imprisonment shall instil in them a will to lead law- abiding and self-supporting lives after their release and to make them fit to do so. The treatment shall be such as will encourage their self-respect and develop their sense of responsibility. For this purpose, all appropriate means shall be used, including religious care in the countries where this is possible, education, vocational guidance and training, social casework, employment, counselling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner, taking into account his social and criminal history, his physical and mental capacities and aptitudes, his personal temperament, the length of his sentence and his prospects after release. Prisoners should be classified so that the prisoner, who, by reason of his criminal records or bad characters, is likely to exercise bad influence, is separated from the rest. A programme of treatment for each prisoner should be prepared for him in the light of knowledge obtained about his individual needs, his capacities and dispositions.13 (ii) Work: The prison labour must not be of an afflictive nature and the prisoners shall be required to Aidan Hehir Andrew Mumford,International Law, Security and Ethics: Policy Challenges in the Post-9/11 World,Taylor & Francis Ltd ,2011 13 Dr. M.R Ansari, Protecting Human Rights, Max Ford Books, 2006. 12

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work, subject to their physical and mental fitness as determined by the medical officer. The work provided shall be such as will maintain and increase the prisoners ability to earn an honest living after release Prisoners should be able to choose the type of work they wish to perform, subject to the requirement of institutional administration and discipline. Necessary precautions shall be taken to protect the safety and health of prisoners. The maximum daily and weekly working hours of prisoners should be fixed by law or by administrative regulation. They should be provided with equitable remuneration for the work. (iii) Education and Recreation: Adequate provision should be made for further education of all prisoners. Education of illiterates and young prisoners should be made compulsory. Education of prisoners should be integrated, as far as possible, with the educational system of the country so that after their release they may continue their education without difficulty. Recreational and cultural activities shall be provided in all prisons for the benefit of the mental and physical health of prisoners. (iv) Social Relations: Special attention should be paid to the maintenance and improvement of such relations between a prisoner and his family and persons or agencies outside the institution as may promote the best interest of his family and his own social rehabilitation. 2. Insane and Mentally Abnormal Prisoners Persons who are found to be insane shall not be detained in prisons and arrangements shall be made to remove them to mental institutions as soon as possible. During their stay in a prison, such prisoners shall be placed under the special supervision of a medical officer. 3. Prisoners under Arrest or Awaiting Trial: The standard minimum Rules have special provisions for under trial prisoners. The Rules provide for their separation from convicted prisoners. The young untried prisoners are to be kept separate from adults and shall in principle be detained in separate institutions. They should be accommodated in separate rooms for sleeping. Untried prisoners, if they desire, may be allowed to have their food from outside, either through the administration or through

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their family or friends. Otherwise, the administration shall provide their food. 14 Regarding the dress of untried prisoners, the rules provide that they shall be allowed to wear their own clothing if is clean and suitable. If they wear prison dress, it should be different from that supplied to convicted prisoners. Other Rules provide that the untried prisoner shall be paid wages if he works; he shall be allowed to procure at his expense such books, newspapers, writing materials as are compatible with the interests of the administration of justice and security and good order of the institution; he shall be allowed to avail medical treatment by his own doctor or dentist. The most important right the rules contemplate for untried prisoner is his right to inform his family about his detention. For this the rules require that, he shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject to such restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the Institution. In order to prepare his defence effectively an untried prisoner is allowed to avail free legal aid where such aid is available. He can prepare and hand over to his legal adviser any confidential instructions. Interviews between the prisoner and his legal adviser may be within right but not within the hearing of a police or institution official. 4. Civil Prisoners: There is a special provision in the rules for prisoners arrested for non-payment of debt or by order of a court under any other non-criminal process. Such persons so imprisoned shall not be subjected to any greater restriction or severity than is necessary to ensure safe custody and good order. Their treatment cannot be less favourable than that of untried prisoners, with the reservation, however that they may possibly be required to work.15 5. Persons Arrested or Detained without Charge: For persons arrested or detained without charge, the rules provide that without prejudice to the provisions of Article 9 of the International Covenant on Civil and Political rights, they shall be given the same protection as are accorded under part I and Part II, section C. Relevant provisions of part II section A, shall likewise be applicable where their application is conducive to the benefit of this special group of persons in custody. Aidan Hehir Andrew Mumford,International Law, Security and Ethics: Policy Challenges in the Post-9/11 World,Taylor & Francis Ltd ,2011 15 Nigel Rodley and Matt Pollard,The Treatment of Prisoners under International Law,Oxford University Press, 3rd edition, 2011 14

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Conclusion Thus after perusing the above chapters i.e. prison system and its developments, rights of prisoners we have to conclude that, the prisoner means the criminals who commits an act against the law in which the punishment is prescribed and thereby he is punishable for imprisonment as per the law and kept behind the bar i.e. in prison. The term prison in the simplest sense means that the place where the criminals are kept. The main object of the punishment is to reform the criminal and the significant object of keeping the person behind the bar is to maintain law and order and peace in the society. Therefore as the object of punishment is to reform the criminal, the prison system is established to reform them. Thereby prison system serves two fold purposes first is, it can maintain peace in the society and secondly it can reforms the criminals so that they will become to able to live in the society. The prison system in India is existed prior to independence, before independence the conditions of prisoners are harsher than the animals there was no uniform code to give punishment, the nature of punishment was also brutal. But after lapse of time the views regarding to the prisoners are changed, various jail committees were appointed thereby certain reforms have taken place in the prison system such as improving diet facility, providing cloths, bedding, medical facility to the prisoners. After independence it is accepted that the prisoners are the human being and they have rights of humanitarian, therefore various steps have taken to the treatment of offenders, the model prison manual is prepared and provides certain rights to the prisoners for their reformation. Therefore, the main object of the prison system is to reform the prisoner as to make them able to live in society peacefully. Therefore, with a view to that object prisoners have given so many rights like right to food, right to read newspaper, novels, to take education, to free in jail in a particular period, in the prison as they are human being. These are enumerated under the criminal law, Constitutional Law and under the various statutes. Therefore by virtue of this object prisoners acquired right to bail, freedom of speech and expression, protection from double jeopardy, right to life and personal liberty, speedy trial, right against solitary confinement, handcuffing, bar fetters, right against inhuman treatment, right to meet friends and consult lawyers, right to reasonable wages, free legal aid, right to life etc. which 22

are defined under chapter 3rd. these rights are guaranteed by the constitution of India therefore the state has no authority to violate these rights. A prisoner, be he a convict or under-trial or a détente , does not cease to be a human being. They also have all the rights which a free man has but under some restrictions. Just being in prison he doesn’t deprive them from their fundamental rights. Suggestions The researcher on the basis of research done hereby gives some of the suggestions. I.

Young offenders aged between 18 and 21 should not be confined in prisons with the adult offenders, as they become more prone to crimes while in the company of more experienced and hardened criminals. It similarly recommended that persons arrested for politico-economic agitations for public causes should not be confined to prisons with regular prisoners.

II.

The overcrowding in the prison should be removed by increasing rooms in the prison. Minimum prisoner shall be kept in one room.

III.

Free legal aid should be providing to the prisoners without delay and meritorious advocates should be appointed on the legal aid committee to meet the ends of justice.

IV.

Number of judges should be increased for speedy disposal of matters and to the ends of justice. As there is also a great need for expedited appeal hearings, which would become possible if the number of judges in the higher judiciary is increased.

V.

The prisoners shall be provide adequate sanitation, improved prisons wages all-round entertainment facilities and better health check-up facilities form the bare minimum required if prison are truly to be a place for reforming and rehabilitating an individual rather than further hardened a criminal.

VI.

Programs for women empowerment shall have to organize by the jail authority by training them in weaving, making toys, stitching and making embroidery items.

VII.

Wage earning and gratuity schemes and incentives shall also be used to reduce the psychological burden on the women prisoner.

VIII.

Various seminars shall be organized by jail authorities to enlighten the prisoners on their legal rights, health and sanitation problems, HIV/AIDS and issues of mental health, juveniles, minorities and steps to reduce the violence in prisons.

IX.

Many inmates usually complained about inadequate quality and quantity of food, which is required to be improved. The food is required to be prepared in better hygienic conditions. 23

X.

Reformative steps shall be taken to reform the criminals by providing the education to them and for that all educational facilities should be required to provide such as books, library, and separate reading room.

XI.

Canteen facility should be proved to the prisoners in jail and the rates of the canteen food should reasonable and easily affordable to all the prisoners.

Bibliography: 

Major Michael A., American Prisoners of Japan: Did Rank Have its Privilege?

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Verdun Press, August 15, 2014.



Christian Parenti and Alex Friedman, Capitalist Punishment: Prison Privatization and Human Rights, Clarity Press, March 4, 2015



Dr. M.R Ansari, Protection Human Rights, Max Ford Books, 2006



The Constitutional Law of India- J.N.pandey.



Indian Constitutional Law- M.P.Jain



Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International Law, Oxford University Press, 3rd edition, 2011



Dr. U.C Jha, Human Rights and Justice, International Documents, Vij books India Pvt. Ltd. 2010, October.



Major Michael A., American Prisoners of Japan: Did Rank Have Its Privilege? Verdun Press, August 15, 2014.



Dr. M.R Ansari, Protecting Human Rights, Max Ford Books, 2006.

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