The Prisoner's Rights

Why it matters. It is the case that takes an unfettered statutory discretion and makes it a power exercisable only for stated reasons, on record, and subject to review, without striking the section down. That technique is the whole of prisoners' rights law in India.

Torture, and the writ that reaches inside

Sunil Batra (II) v. Delhi Administration, (1980) 3 SCC 488, decided 20 December 1979 by Krishna Iyer J with Pathak and Chinnappa Reddy JJ. A LETTER from Sunil Batra alleging that a fellow prisoner had been tortured by a head warder to extract money from his relatives was treated as a petition for habeas corpus.

Held. That the writ of habeas corpus has FUNCTIONAL PLURALITY: it may be used not only to secure release but to protect a prisoner against inhuman treatment inside the prison.

The directions, which are the machinery every later reform assumes. That no corporal punishment or personal violence be inflicted and that irons not be imposed in a vindictive spirit. That LAWYERS NOMINATED by the District Magistrate, the Sessions Judge, the High Court or the Supreme Court be given facilities for interviews, visits and CONFIDENTIAL COMMUNICATION with prisoners, subject to discipline and security, and be bound to visit periodically and report to the courts on legal grievances. That GRIEVANCE DEPOSIT BOXES be maintained within three months under the orders of the District Magistrate and the Sessions Judge, opened frequently and acted on. And that District Magistrates and Sessions Judges VISIT the prisons in their jurisdiction, afford effective opportunities for ventilating legal grievances and deal with them expeditiously.

And note the technique. A letter treated as a writ; the prison opened to lawyers, boxes and visiting judges; and a continuing supervision. It is the same method as Vishaka and M.C. Mehta, applied to an institution.

Handcuffs

Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526, decided 29 April 1980 by Krishna Iyer J with Chinnappa Reddy and Sen JJ. An undertrial sent a TELEGRAM to the Court complaining of being handcuffed in transit between prison and court. The police rules directed that a "BETTER CLASS" undertrial be not handcuffed, while ordinary undertrials routinely were.

Held. That handcuffing is PRIMA FACIE INHUMAN, unreasonable, arbitrary and repugnant to articles 14, 19 and 21. A rule distinguishing a better class prisoner from an ordinary one is itself discriminatory and cannot stand. Irons are not to be used as a matter of routine, because an escort has other means of keeping safe custody without the indignity and cruelty of handcuffs.

The rule that follows. Handcuffs may be used only where there is a CLEAR AND PRESENT DANGER of escape, established by material and not by assumption; the reasons must be RECORDED; and the escorting authority must submit the reasons to the PRESIDING JUDGE for approval, the judge being entitled to direct their removal.

Why it matters here. Because the classification struck down was by SOCIAL CLASS, which is the same criticism made of the Prisons Act's own classifications in [The Prison in India].

Arrest and custodial violence

D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, decided 18 December 1996 by Kuldip Singh and Dr Anand JJ. A LETTER from the Executive Chairman of Legal Aid Services, West Bengal, drawing attention to reports of deaths in police lock-ups, was treated as a writ petition.

Held. That custodial torture and custodial death are among the worst crimes in a civilised society, violating articles 21 and 22(1), and that the right under article 21 cannot be denied to a person in custody.

The ELEVEN REQUIREMENTS, to be followed in every case of arrest or detention until legislation was made. Visible identification and name tags for the personnel making the arrest and conducting the interrogation, with a register of their particulars. A MEMO OF ARREST attested by a family member or a respectable person of the locality, countersigned by the arrestee, with the time and date. The right to have a FRIEND OR RELATIVE INFORMED as soon as practicable. Notification through the Legal Aid Organisation within EIGHT TO TWELVE HOURS where the relative lives outside the district. The arrestee to be made aware of that right. An entry in the diary at the place of detention naming the person informed and the officers in whose custody the arrestee is. An INSPECTION MEMO of major and minor injuries, signed by both and given to the arrestee, where he so requests. MEDICAL EXAMINATION EVERY FORTY-EIGHT HOURS in custody by a doctor on an approved panel. Copies of all documents to the Magistrate. Access to a LAWYER DURING INTERROGATION, though not throughout. And a POLICE CONTROL ROOM at every district and State headquarters, to which the arrest is reported within twelve hours and displayed on a notice board.

The sanction. Failure renders the official liable to departmental action AND to punishment for CONTEMPT OF COURT. The Court also affirmed the availability of COMPENSATION IN PUBLIC LAW for a violation of article 21.

And what became of them. The requirements were substantially enacted into the criminal procedure law by the amendments of 2005 and 2008 and carried into the Bharatiya Nagarik Suraksha Sanhita 2023. It is the standard example in this book of judicial guidelines becoming statute, alongside Vishaka.

Legal aid and the speedy trial

M.H. Hoskot v. State of Maharashtra, 1978. Where a prisoner is unable on account of poverty or incommunicado situation to exercise his right of appeal, the court must assign counsel for his defence, and free legal services are an essential ingredient of the reasonable, fair and just procedure required by article 21. A copy of the judgment must be furnished to the prisoner in time to enable an appeal.

Hussainara Khatoon v. Home Secretary, State of Bihar, 1979. The undertrials of Bihar, many of whom had been in custody longer than the maximum sentence for the offence charged. The Court held that the RIGHT TO A SPEEDY TRIAL is an essential ingredient of the reasonable, fair and just procedure implicit in article 21, and that the State cannot avoid its obligation by pleading financial or administrative inability; and it ordered the release of undertrials in that position. It is worked in [Judicial Activism and Public Interest Litigation].

What Parliament then did. Section 436A of the Code of Criminal Procedure, inserted in 2005, required the release on bail of an undertrial who had been detained for HALF the maximum period of imprisonment specified for the offence; and the corresponding provision of the Bharatiya Nagarik Suraksha Sanhita 2023 carries it forward with a lower threshold for a first-time offender. That is the direct statutory descendant of Hussainara Khatoon.

And the machinery. Under-trial review committees in every district, and the legal services machinery in [Legal Aid], whose section 12 makes a person in custody entitled to free legal services irrespective of income.

What a prisoner keeps, and what a prisoner loses

Retained. Article 21 in full, subject only to what lawful confinement necessarily entails; the right against torture and cruel treatment as part of article 21; the right to a speedy trial; the right to free legal aid; the right to communicate with a lawyer; the right of access to a court, by letter if necessary; the right to medical treatment; the right to be free from handcuffs and irons except on recorded reasons; the right to reasonable conditions of confinement; and the right to compensation in public law for a violation.

Retained but regulated. Visits and correspondence, under sections 40 and 41 of the Prisons Act and the manual; the right to hold property; and the freedom of religion.

Lost by the fact of confinement. The freedom of movement under article 19(1)(d) and the right to reside and settle under article 19(1)(e), and those parts of article 19(1)(a) and (b) and the right to practise a profession under article 19(1)(g) that are incompatible with lawful custody.

Not lost, though often treated as lost. The right to vote is a statutory matter, not a constitutional one: section 62(5) of the Representation of the People Act 1951 disqualifies a person confined in prison from voting, with an exception for a person in preventive detention, and its validity has been upheld. State the position accurately.

And the one that is contested. The right of a prisoner to conjugal life and to procreation, on which High Courts have differed and on which there is no settled Supreme Court authority. Note it as unsettled.

A worked example

An undertrial has been in custody for eleven months on a charge whose maximum sentence is three years. He is produced in court in handcuffs. In prison he is put in bar fetters after a complaint by a warder, and is kept in a cell alone for ten days. He has no lawyer.

The handcuffs. Prem Shankar Shukla: prima facie inhuman and contrary to articles 14, 19 and 21; permissible only on a clear and present danger of escape established by material; reasons to be recorded and submitted to the PRESIDING JUDGE, who may order their removal. He should raise it in court that day.

The bar fetters. Sunil Batra: section 56 permits them only for reasons germane to SAFE CUSTODY, decided on his individual characteristics and not on the charge; reasons recorded in the journal and the history ticket in language he understands; removal as soon as it is safe; and periodic review with a minimal hearing. A quarrel with a warder is a prison offence to be dealt with under sections 45 to 48, not a reason for irons.

The solitary cell. Sunil Batra: solitary confinement is a substantive punishment only a court may impose. If it is separate or cellular confinement as a punishment for a prison offence, it must follow section 45's charge, section 48's award by the Superintendent, section 50's medical certificate and section 51's entry in the punishment-book, and section 29 requires the cell to have the means of communication and a daily medical visit beyond twenty-four hours.

The absence of a lawyer. M.H. Hoskot: free legal services are an essential ingredient of a fair procedure under article 21; and section 12 of the Legal Services Authorities Act 1987 makes a person in custody entitled to free legal services irrespective of income.

The eleven months. Hussainara Khatoon: a speedy trial is part of article 21. And the statutory provision descended from section 436A: an undertrial detained for HALF the maximum period, here eighteen months, is to be released on bail, so he is not yet within it, and the under-trial review committee is the forum to press for bail meanwhile.

And how does any of this reach a court? Sunil Batra (II): a letter is enough, the grievance box, the visiting Sessions Judge and the nominated lawyer exist for exactly this, and habeas corpus reaches conditions and not only release.

What this does NOT mean

It does not mean a prisoner has all his rights. Lawful confinement necessarily removes the freedom of movement and what depends on it.

It does not mean bar fetters and separate confinement are prohibited. Sunil Batra upheld section 56 and read section 30(2) correctly; what it forbade was their unreasoned use.

It does not mean the D.K. Basu requirements are still only guidelines. They were substantially enacted into the criminal procedure law and carried into the Sanhita of 2023.

And it does not mean the rights are delivered. Custodial deaths continue to be reported, the National Human Rights Commission requires them to be reported within twenty-four hours, and the gap between the declared right and the prison is the subject of the previous two chapters.

Quick revision

Foundation, SUNIL BATRA 1978: convicts are NOT by mere reason of conviction denuded of all fundamental rights, and retain article 21. Section 30(2) does NOT authorise SOLITARY CONFINEMENT of a prisoner under sentence of death, which is a substantive punishment only a COURT may impose under sections 73 and 74 of the Penal Code; it authorises confinement in a cell APART. Section 56 upheld, but bar fetters only for reasons GERMANE TO SAFE CUSTODY, on the INDIVIDUAL prisoner's characteristics and not the crime, with reasons RECORDED in the journal and history ticket in language he understands, removal as soon as safe, and REGULAR REVIEW with a minimal hearing.

SUNIL BATRA (II) 1979: a letter treated as habeas corpus; the writ has FUNCTIONAL PLURALITY and protects against inhuman treatment inside; no corporal punishment; NOMINATED LAWYERS with confidential access and a duty to report; GRIEVANCE DEPOSIT BOXES within three months under the District Magistrate and Sessions Judge; and visits by District Magistrates and Sessions Judges.

PREM SHANKAR SHUKLA 1980: handcuffing is PRIMA FACIE INHUMAN and contrary to articles 14, 19 and 21; the "better class" classification is discriminatory; handcuffs only on a CLEAR AND PRESENT DANGER of escape shown by material, with reasons recorded and submitted to the PRESIDING JUDGE.

D.K. BASU 1996: custodial torture and death violate articles 21 and 22(1); ELEVEN REQUIREMENTS, name tags and a register, a MEMO OF ARREST attested and countersigned, a friend or relative INFORMED, notification through the Legal Aid Organisation in eight to twelve hours if outside the district, the arrestee made aware, a diary entry, an inspection memo of injuries on request, MEDICAL EXAMINATION EVERY FORTY-EIGHT HOURS, documents to the Magistrate, a lawyer during interrogation though not throughout, and a police control room notified within twelve hours; failure attracts departmental action and CONTEMPT; compensation available in public law. Substantially enacted into the criminal procedure law in 2005 and 2008 and carried into the Sanhita 2023.

M.H. HOSKOT 1978: free legal services are an essential ingredient of a fair procedure under article 21, with a copy of the judgment in time to appeal. HUSSAINARA KHATOON 1979: a SPEEDY TRIAL is part of article 21 and financial or administrative inability is no answer; its statutory descendant is the half-of-maximum release provision, formerly section 436A. Lost by confinement: article 19(1)(d) and (e) and what depends on them. Statutorily excluded: voting, under section 62(5) of the Representation of the People Act 1951. Unsettled: conjugal rights and procreation.

Test yourself

1. State the foundational proposition of prisoners' rights in India and its source. That convicts are not by mere reason of conviction denuded of all the fundamental rights which 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 procedure established by law. It is from Sunil Batra v. Delhi Administration, 1978.

2. On what conditions may bar fetters be imposed? Only for reasons germane to safe custody, that is to prevent escape; on the peculiar and special characteristics of the individual prisoner and not on the nature of the sentence or the magnitude of the crime; with the reasons recorded in the Superintendent's journal and the prisoner's history ticket in language the prisoner understands; with removal as soon as the Superintendent is of opinion that it can be done safely; and subject to review at regular and frequent intervals with a minimal hearing.

3. What did Sunil Batra (II) add, and by what route did the case reach the Court? It held that habeas corpus has functional plurality and protects a prisoner against inhuman treatment inside the prison, and directed nominated lawyers with confidential access and a duty to report, grievance deposit boxes under the District Magistrate and Sessions Judge, and visits by those officers to ventilate legal grievances. The case reached the Court as a LETTER from a prisoner about the torture of another prisoner.

4. Give six of the D.K. Basu requirements. Any six of: visible identification and name tags with a register of the personnel; a memo of arrest attested by a family member or respectable person of the locality and countersigned by the arrestee with the time and date; the right to have a friend or relative informed as soon as practicable; notification through the Legal Aid Organisation within eight to twelve hours where the relative lives outside the district; an entry in the diary at the place of detention; an inspection memo of injuries signed by both, on request; medical examination every forty-eight hours by a doctor on an approved panel; copies of all documents to the Magistrate; access to a lawyer during interrogation though not throughout; and a police control room notified within twelve hours.

5. Which rights does a prisoner lose, and which is he denied by statute rather than by the Constitution? He loses the freedom of movement under article 19(1)(d) and the right to reside and settle under article 19(1)(e), and those parts of the other article 19 freedoms incompatible with lawful custody. Voting is denied by STATUTE, section 62(5) of the Representation of the People Act 1951, which disqualifies a person confined in prison from voting, with an exception for preventive detention.