The Prisoner's Rights

In one line

Conviction takes away the freedom of movement and nothing else automatically, so every further deprivation inside a prison needs its own justification.

In the wording a student can write in an exam: a prisoner retains every fundamental right except those necessarily lost by the fact of lawful confinement. In Sunil Batra v. Delhi Administration the Supreme Court held that convicts are not by mere reason of conviction denuded of all the fundamental rights they otherwise possess, and that a convict retains the right under article 21 not to be deprived of life or personal liberty except according to a procedure established by law. From that follow the rules on solitary confinement and bar fetters in Sunil Batra, on handcuffing in Prem Shankar Shukla, on the conditions of custody in Sunil Batra (II), on arrest and custodial violence in D.K. Basu v. State of West Bengal, on free legal aid in M.H. Hoskot v. State of Maharashtra, and on the speedy trial and the undertrial in Hussainara Khatoon v. Home Secretary, State of Bihar.

The foundation

Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, decided 30 August 1978 by Chandrachud CJ with Fazal Ali, Shinghal and Desai JJ, Krishna Iyer J concurring. Two petitions: Sunil Batra, under sentence of death, complaining of SOLITARY CONFINEMENT under section 30(2) of the Prisons Act 1894, and Charles Sobraj, a convict, complaining of BAR FETTERS under section 56. The vires of both sections was challenged.

Held, on the foundation. That convicts are not by mere reason of conviction denuded of all the fundamental rights which they otherwise possess. Some rights are necessarily lost, as a professional man loses the right to practise while serving his sentence; but others, including the right to acquire, hold and dispose of property and, above all, the right under article 21, survive.

Held, on solitary confinement. Section 30(2) does NOT empower the prison authority to impose solitary confinement on a prisoner under sentence of death. Solitary confinement is a SUBSTANTIVE PUNISHMENT which under sections 73 and 74 of the Penal Code only a COURT may impose and only within prescribed limits; it cannot be left to the whim of prison authorities. Section 30(2) requires such a prisoner to be confined in a cell APART from other prisoners, which is separate confinement and not solitary confinement, and does not authorise keeping him beyond sight and sound of everybody.

Held, on bar fetters. Section 56 is not violative of articles 14 and 21, but it is read with five conditions. The power may be exercised only for reasons GERMANE TO SAFE CUSTODY, that is to prevent escape. The determination must be made on the peculiar and special characteristics of the INDIVIDUAL prisoner, and the nature or length of the sentence and the magnitude of the crime are NOT relevant. The reasons must be RECORDED in the Superintendent's journal and in the prisoner's history ticket, in language the prisoner understands. The fetters must be REMOVED as soon as the Superintendent is of opinion that this can be done with safety. And the case must be REVIEWED at regular and frequent intervals, with a minimal hearing to the prisoner.