The Rights of Prisoners

In one line

Conviction and imprisonment take away the rights that are necessarily lost by incarceration and no others, so a prisoner retains article 21 in its enlarged form, retains article 14 and article 20, and retains those parts of article 19 not inconsistent with lawful custody.

The governing proposition

A person does not cease to be a person on entering a prison.

Imprisonment necessarily removes the freedom of movement, and it removes whatever else is inseparable from lawful custody.

It removes nothing else. Any further deprivation requires its own authority in law, and that authority must satisfy article 21, meaning a procedure that is right, just and fair.

The doctrinal source is the inalienability of a human right, which [What a Human Right Is, and Where the Idea Comes From] states as one of the four marks: a right is not forfeited by bad conduct. The prison cases are where that abstract mark does concrete work.

What a prisoner retains

Article 21 in full, subject only to the restrictions inherent in custody. Life, personal liberty in its residual sense, and the right to live with human dignity.

Article 14, so differential treatment among prisoners requires an intelligible differentia with a rational nexus, and arbitrary treatment is void.

Article 20, in all three clauses.

Article 22 protections, where the person is under arrest rather than convicted.

Those parts of article 19 that survive custody, which principally means expression, subject to prison regulation.

And article 32 and article 226, since the remedy follows the right, which is what made the letters from prisons effective.

The specific protections established

Six, and giving them as a list is better than a general statement.

Against torture and cruel, inhuman or degrading treatment, which Part III nowhere states and which was read into article 21. [Custodial Violence, and the Guidelines on Arrest] takes it.

Against solitary confinement except where the law expressly permits it and for the period it permits.

Against bar fetters and handcuffing as a routine measure. Restraint requires justification recorded in each case, not a standing practice.

To legal aid and to consult counsel, which follows from [Free Legal Aid, and Article 39A].

To communication, in the sense of interviews with family and counsel, subject to reasonable regulation.

And to medical treatment, as an element of the right to health within article 21.

The two limiting principles

An answer that gives only the rights is unbalanced, and prison administration has a real case.

Discipline and security are legitimate objects. A restriction genuinely required for the safe custody of prisoners or the security of the institution is a reasonable one, and courts have said so.