Rights of Prisoners: the Foundation
Chapter One Hundred Forty-Nine
Syllabus topic 6, "Imprisonment"
Pages 639 to 643 of 806
In one line
The Prisons Act 1894 confers no rights on a prisoner at all, so every prisoner's right in Indian law comes from Part III of the Constitution as the courts have applied it inside the prison.
MU's printed stem, on six papers: "Discuss: Rights of Prisoners and Duties of custodial staff."
The starting point
Read the Prisons Act 1894 from end to end and you will not find a right. Every section is a duty on an officer or a power of the State. Section 40 says provision shall be made for visits; section 50 says the Medical Officer shall certify; section 49 says no punishment other than those specified shall be inflicted. Not one of them is expressed as something a prisoner has.
That is not an oversight. It reflects the theory the Act was built on, which is that a convicted person had forfeited his civil status and was left with whatever the State chose to give him. On that theory a prisoner cannot have rights, only treatment.
The change
The Constitution of 1950 made that theory untenable, and the Supreme Court said so in a line of cases from 1978.
Charles Sobraj v. Superintendent, Central Jail, Tihar, (1978) 4 SCC 104. The foundational statement, and the one to quote.
- Imprisonment does not spell farewell to fundamental rights, although the courts will not recognise for a prisoner the full range of Part III enjoyed by a free citizen.
- Wherever fundamental rights are flouted or legislative protection ignored to a prisoner's prejudice, the Court's writ runs inside the prison to right the wrong and restore the rule of law, and the claims of discipline, security and discretion do not deter the judicial process.
- Fair procedure is the soul of Article 21; reasonableness of restriction is the essence of Article 19(5); and sweeping discretion degenerating into arbitrary discrimination is anathema to Article 14.
Two things about that formulation are worth noticing. It does not say a prisoner has all the rights of a free citizen; it says he does not lose them, and that the extent of them is a matter for the court. And it identifies the three tests, one for each of the three articles, which is what makes it usable in an argument.
The three articles
| Article | What it supplies inside a prison |
|---|---|
| Article 14 | No arbitrary classification: the ground of Prem Shankar Shukla on class based handcuffing, and the answer to sweeping administrative discretion |
| Article 19(1)(d) with 19(5) | Freedom of movement, cut down by the sentence but not extinguished; a restriction must be reasonable |
| Article 21 | The main source: life and personal liberty, deprived only by a procedure that is fair, just and reasonable |
| Article 22 | Protections on arrest and detention, which reach the person before he is a prisoner |
| Article 32 and Article 226 | The remedies: the writ jurisdiction that makes the rest enforceable |
| Article 39A | A Directive Principle, equal justice and free legal aid, used in Sheela Barse alongside Articles 14 and 21 |
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