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Chapter 1Introduction

1.0 Overview

Imprisonment is one of the common modes of punishment available to the courts

to deal with the persons who commit criminal offences. Prisons are places to keep the

offenders in confinement with a view to restrict their personal liberty. The period of

confinement varies with the gravity of offence committed. A prisoner, however, does not

cease to be a human being after being confined to the four walls of the prison. Prisoners

lose only those rights which are abridged or proscribed by law. Though, they get deprived

of their right to personal liberty, yet they remain entitled to some basic human rights,

which are sacrosanct despite imprisonment. Right to life with a minimum standard of

living, right to health care, right to human dignity, right to humane treatment, protection

against torture, protection against discrimination on grounds of race or caste, right to

education, right to reformation, right to expeditious trial, right to legal aid, right to

protection of motherhood and childhood, right to culture and right to information are the

basic minimum rights that a prisoner is not supposed to forego even when in captivity.

National Human Rights Commission of India has also observed that when an

individual is in custody, it means that he is in the custody of the State. Therefore, it is the

direct concern and responsibility of the State to ensure that his human rights are

protected.1 Places of incarceration are largely impenetrable to the outside world.

Inaccessibility and lack of accountability and transparency coupled with indifference of

people outside towards prisoners lead to gross infringement of their basic human rights.

Historical evolution of prison administration tells that punitive imprisonment was

extensively used in India, China, Egypt, Assyria, Babylon and Rome from times

immemorial. Death, mutilation and fine were common forms of punishment. Gradually it

came to be realised that the process of imprisonment involving detention in isolation

1 National Human Rights Commission of India, D.O. No. 10/19/2005-PRP&P, 5 December 2006

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from family and community could itself be considered as punishment in place of old

corporal punishment.2

In the ancient times, we have references of Mamertine Prison in Rome which was

constructed around 640-616 BC by Ancus Marcius. It is an ancient prison at the foot of

the Capitoline Hill. The Mamertine Prison consists of two gloomy underground cells

where Rome's vanquished enemies were imprisoned and where they usually died, either

of starvation or strangulation. The lower room of the remaining part is known as the

Tullianum after its builder Servius Tullius (6th century BC). This part served as a place

not for punishment but for detention and execution of condemned criminals. The ancient

historian Sallust said it was 12 feet below the ground and ‘neglect, darkness and stench

make it hideous and fearsome to behold.3

In the United Kingdom, by the 16th and 17th Centuries, prison tended to be a

place, where people were held before their trial or while awaiting punishment.

Imprisonment with hard labour was beginning to be seen as a suitable sanction for petty

offenders by the mid-18th century. Transportation was a much-used method for disposing

of convicted people. Convicts were shipped to the British colonies like America (until the

end of the American War of Independence in 1776), Australia and Tasmania.

Transportation was curtailed at the end of the 18th century. Later on, prison hulks were

made as an alternate mode of punishment. Prison hulks were ships which were anchored

in the Thames, Portsmouth and Plymouth. Those sent to them were employed in hard

labour during the day and then loaded, in chains, onto the ship at night. The life on the

hulks was in appalling conditions, especially the lack of control and poor physical

conditions.4

In 1777, John Howard condemned the prison system as disorganised, barbaric

and filthy. He called for wide-ranging reforms including the installation of paid staff,

outside inspection, a proper diet and other necessities for prisoners. In 1791, Bentham

designed the panopticon. This prison design allowed a centrally placed observer to

survey all the inmates, as prison wings radiated out from this central position. The 19th

century saw the birth of the state prison. The first national penitentiary was completed at

2 Mohanty, et al.: Indian Prison Systems, APH Publishing, Delhi, 1990, p. iv3 www.sacred-destinations.com/italy/rome-mamertime-prison.htm4 The Howard League for Penal Reform, 2006 [www.howardleague.org/31/?0=]

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Millbank in London in 1816. It held 860 prisoners, kept in separate cells, although

association with other prisoners was allowed during the day. In 1842, Pentonville prison

was built using the panopticon design. This prison is used till today. In 1877, prisons

were brought under the control of the Prison Commission. The Criminal Justice Act,

1948 abolished penal servitude, hard labour and flogging. It also presented a

comprehensive system for the punishment and treatment of offenders. In April 1993, the

Prison Service became an Agency of the government. This new status allows for greater

autonomy in operational matters, while the government retains overall policy direction.5

In the ancient India, Kautilya, Jatakas, Harsacharita, Hiuen-Tsang make a mention

of prison life. The prison system in medieval India resembled that of ancient India.

Imprisonment as a form of punishment was introduced in India by the British

Government in 1773. The Prison Reform Committees were formed in 1836, 1864, 1877,

1888, 1892 and 1920. The Prison Act of 1894 is based on the recommendation of the

Prison Reforms Committee of 1892. This was followed by the Prisoners Act of 1900. In

the post independence period, in 1952, Dr. W. C. Reckless, the United Nations expert

submitted his report on Prison Administration in India. In 1983, A. N. Mulla Committee

submitted its report on Indian Jail Reforms.6

We have references from the Mahabharata7, where Kansa threw his sister Devaki

and her husband Vasudeva into jail. Kautilya8 refers to the Chamberlain (sannidhátá)

who was responsible for construction of the armoury and the jail (bandhanâgâra),

besides treasury-house, trading-house, store-house of grains and other important

storehouses. Arthasastra9 further describes that the jail should be well guarded with

many compartments provided with separate accommodation for men and women.

During the period of the Sultanate, there were no regular prisons. Only old forts

and castles were used as prisons. During the time of Emperor Akbar, there were two

kinds of prisons; one for criminals who had committed serious offences and the other for

5 Ibid.6 Supra Note 27 www.crystalinks.com/avatars.html8 Gairola, Vachaspati: Arthasastra of Kautilya, Chaukhamba Vidyabhawan, Varanasi, 2003, pp.95-96.9 Ibid.

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ordinary criminals. Important nobles and princes guilty of treason and rebellions were

imprisoned in fortresses situated in different parts of the country.10

The Cellular Jail in the Andaman Islands is a live example of blatant violation of

basic human rights of the prisoners. Port Blair became a penal colony at the end of the

nineteenth century. From 1896, the construction of Cellular Jail was started and it was

completed in 1906, with 698 tiny solitary cells. The Jail was constructed with seven

wings, spreading out like a seven-petal flower. In its centre, it had a tower with a turret.

Connected to this were the three-storey high seven wings with 698 isolated cells. This is

why it is called the Cellular Jail. The Cellular Jail initially housed thieves and smugglers,

but later on freedom fighters and political activists were sentenced to two decades of

imprisonment on these islands, which came to be known as ‘Kala Pani’ or Black Water.11

The first modern prison in India, Central Jail, was constructed in 1846 in Agra on

the recommendations of Macaulay Committee constituted by the British Government.

This was followed by construction of Central Prisons at Bareilly and Allahabad in 1848,

at Lahore (now in Pakistan) in 1852, at Chennai in 1857, at Bombay, Varanasi in 1864

and at Lucknow in 1867.12

Model Prison Manual, 2003 and Draft National Policy on Prison Reforms, 2007

prepared by the Bureau of Police Research and Development of India (BPRD) have

provided benchmarks for reforms in the prisons and protection of the rights of the

prisoners.

Punjab State has seven Central Jails located at Patiala, Bathinda, Ferozepur,

Amritsar, Gurdaspur, Jalandhar and Ludhiana. In addition, there are six District Jails

situated in Nabha, Sangrur, Faridkot, Kapurthala, Ropar and Hoshiarpur. There are also

two Open Air Jails at Nabha and Kapurthala. The State has a Women Jail as well as one

Borstal Jail at Ludhiana. In addition, there are nine Sub Jails situated at Fazilka, Moga,

Mukatsar, Patti, Barnala, Malerkotla, Phagwara, Dasuya and Pathankot. The Amritsar

Central Jail was constructed in 1957, as a District Jail and later upgraded as Central Jail

in 1969.

10 Tamil Nadu Prison Department: [www.prisons.tn.nic.in/history.htm]11 History of Andaman Cellular Jail: [www.andamancellularjail.org/History.htm]12 Sastry, G.U.G.: Criminology, S.V.P. National Police Academy, Hyderabad, 1999, p. 184

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1.1 Administration of Prisons: Theory and Practice

Though, isolated and punished for committing crimes, yet the prisoners are a part

and parcel of our society. In the modern society, after wide recognition of reformative

theory of punishment, jails are no longer punitive institutions; rather they are being

developed in the shape of corrective institutions. The administration of prisons in India is

regulated by the Indian Prisons Act of 1894 and Prison Manuals of various States. There

are various provisions and guidelines for the general well-being and rights of the

prisoners. However, there is a wide gap between the theory and practice. Human rights

violations are very common in the prisons of India. Punjab is no exception to this

malaise. Keeping a person in custody only means that his or her liberty has been

restricted. Despite being imprisoned in the jail, a person is entitled to all other

fundamental rights, like right to human dignity, right to minimum needs, right to access

to law, right to communication, right to be released on due date, etc. The study of human

rights violations and suggestions for the protection of these rights becomes an important

area; whereupon the present researcher has focused during his research.

1.1.1 General Living Condition and Overcrowding

In the prisons, various types of prisoners are lodged such as convicts, undertrials,

men, women, foreign nationals, internees and civil prisoners. Many of them are drug-

addicts, habitual offenders, professional criminals, sexual perverts etc. There is no

adequate classification and segregation of prisoners. Normally professional criminals and

casual offenders are kept together and often given similar treatment. It requires scientific

and logical separations of prisoners on the basis of crime and quantum of criminality

from the reforms point of view also. For instance, it is not advisable to keep an undertrial

along with convicted prisoners. In fact, there should be separate institutions for keeping

the undertrials till the completion of trial process, as a person is presumed to be innocent

unless proved guilty and convicted by law. Similarly, it is not appropriate to keep a

person charged with offences like dowry and simple hurt alongwith a gang of contract-

killers or drug peddlers. For the purpose of reforms and rehabilitation, it is essential to

classify the prisoners and separate them on the basis of categories like convict-undertrial,

professional-casual, habitual-first offender and house them in separate rooms or cells.

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Overcrowding and congestion are the major problems of Punjab Jails. Due to

inadequate premises in the jails, the number of prisoners is far more than the capacity.

This results in overcrowding and congestion. The authorized accommodation of Jails in

Punjab is 9854. However, the total population of prisoners is 14073.13 Amritsar Central

Jail has been maintaining over 2500 prisoners against the actual capacity of 1000.

Consequently, it creates other related problems like poor sanitary conditions, unhygienic

environment and improper care of prisoners. As per Punjab Jail Manual14, each berth

should be six and a half feet long, two and a quarter feet broad and eighteen inches high

and shall be constructed with a slight slope down from the head. The toilets are dingy and

unhygienic. These toilets are working on old pattern rather than flush system. The

number of toilets is also very less in proportion to the number of inmates. This constitutes

a major human rights issue.

Food, drinking water, clothing, clean atmosphere and accommodation are basic

needs of a human being. Prisoners are entitled to proper food, drinking water, suitable

accommodation and regular medical check-up. The quality of food provided to the

prisoners cannot be termed satisfactory from humanitarian point of view. There are

obvious flaws in the quality of the raw materials as well as preparation and distribution of

food. The improvement in the overall food condition is essential keeping in mind the

health and hygiene of the inmates.

1.1.2 Contact With Outside World

It is a basic right of every prisoner to maintain contacts with his or her relatives,

family members and legal advisors. Every prisoner is entitled to be provided reasonable

facilities to interact with the relatives through interviews and also to correspond through

letters. Similarly prisoners are entitled to have meetings with their legal advisors. .Punjab

Jail Manual has also made adequate provisions for interviews.15 However, there is no

uniform procedure to regulate the interviews in a prison like that of Amritsar, where more

than 2500 prisoners are kept. Chaos and mismanagement can be witnessed in the

interview rooms. There is lack of proper streamlined procedure which would give an

13 Office of the AIG, Punjab Jail Department, 200514 Manual for the Superintendence and Management of the Prisons in Punjab, 1996, Para 89115 Ibid. Para 468

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equal and fair opportunity to every prisoner to meet his or her family members and

friends. There are genuine complaints that the influential and rich prisoners are given

more time, facility and preference over the poor and weak ones. Therefore, there is a

pressing need to evolve an effective and well-accepted plan to streamline the process of

meetings and interviews.

1.1.3 Human Rights of Undertrial Prisoners

The number of undertrials in the jails outnumbers the convicts. Due to the

excessive delay in the trials, many persons have to undergo a considerable period of

confinement under judicial custody. Unnecessary detention of the undertrials amounts to

violation of human rights. Only those undertrials should be detained, who are desperate

criminals and are in a position to influence the judicial process and are in a position to

influence or induce the witnesses and the complainants. Unchecked and undeterred

arrests by the police aggravate the situation.

A prisoner detained in judicial custody is entitled to be tried within a reasonable

period of time. Speedy trial is the basic right of the accused. It is an old saying that justice

delayed is justice denied. Dr. A. P. J. Abdul Kalam, former President of India, also

expressed his concern over the time taken by courts in deciding cases and suggested to

speed up the judicial process with minimum adjournments.16

All the persons arrested under law are entitled to be provided free legal aid.

Everybody has a right to consult a legal advisor of his or her choice. In case a person is

not capable of hiring the services of a lawyer, it is the responsibility of the state to

provide a lawyer at the cost of the state. The Legal Services Authorities Act, 1987 has

been enacted to give this facility a statutory base. For this purpose, Legal Services

Authorities have been constituted at the district and state levels, besides National Legal

Services Authority at the centre. However, poor and needy persons are still languishing in

the jails devoid of the legal benefits under these provisions.

On several occasions, the undertrials are not produced before the courts by the

police on the grounds of their engagements with the VVIP duty or under the pretext of

16 The Tribune, Chandigarh, 27 March 2006.

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some other law and order duty. As a result of this, the trial gets delayed. The procedure of

production of undertrials in the courts needs reexamination to ensure justice.

There are instances where poor persons are involved in minor and petty offences

and are languishing in the jails because they are not in a position to arrange for the

lawyers and sureties due to poverty. There are many persons in the jail against whom

charge-sheets have not been filed by the police despite expiry of the stipulated 60 or 90

days as per the Code of Criminal Procedure, 1973. However, they continue to rot in the

jail only because of their poverty. To keep a person in judicial custody, without

chargesheeting, amounts to serious violations of the human rights.

There are instances where many persons are acquitted by the trial court.

However, they have already undergone a considerable period of imprisonment while

pending trials. It is a serious violation of basic rights of a person who suffers for no fault

of his own. If a court of law declares a person innocent and the person has already

undergone 2-3 years or even more in the judicial custody, the person after release finds

himself nowhere in the society and thus law and justice are meaningless for him.

1.1.4 Human Rights of Foreigner Prisoners

Amritsar, being a border district, there are a number of foreigners in the Amritsar

Central Jail. The plight of these prisoners is very miserable. Outside the prison, nobody is

there to look after them. They cannot meet their relatives and friends. They cannot defend

themselves during the trial as they do not have their relatives here. The advocates

provided by the District Legal Service Authority do not take interest to defend them

properly because of various reasons. They even do not know the names of the advocates

provided to them.

A number of foreign nationals are languishing in the jails even after completion of

their sentence awaiting clearance by the concerned Embassies. They are called internees

and are living in a pitiable condition. Technically, they are residing in a camp made for

this purpose. A part of Amritsar Jail has been declared as a camp for housing the

internees of the Punjab State. It is a gross violation of human rights to keep them under

custody despite the fact that they have completed their period of imprisonment. Most of

them are poor persons who crossed the border in search of jobs or were planted by the

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trans-border intelligence agencies. Majority of them are from Pakistan and Bangladesh.

Various agencies from India and the concerned countries are involved in the process of

deportation of the internees. However, there is an inordinate delay in completing the

necessary formalities for the deportation of these internees. This issue is required to be

studied in depth so that the violations of human rights of the internees could be protected.

Besides this, the plight of women inmates is very miserable in the Indian jails.

Though efforts have been made to improve the living condition of women in the jails and

several guidelines have been issued in this regard by the Supreme Court of India and the

National Human Rights Commission, there have been continuous violations of their

human rights. Women cannot even move freely in the male dominated central jails. The

conditions of children residing with their mothers are more pitiable and are repugnant to

their tender ages.

All these issues are related to the rights of prisoners. The prisoners have to stay in

the jails without having power to express their views even about their basic problems and

difficulties. Despite Jails being places to keep the lawbreakers in confinement with a

view to restrict their personal liberty, their other entitlements are being grossly violated.

1.2 Review of Literature

Human Rights of Prisoners is comparatively a new and perceptive area of study

from research point of view. Though, we find literature in the shape of guidelines on the

rights of prisoners by the United Nations Organisation, National Human Rights

Commission, Jail Manuals and Judgments of Supreme Court of India and High Courts,

we do not find much literature on the rights of prisoners in the form of empirical studies

particularly on various aspects of problems of prisoners. The present study is purely

empirical in nature as it is based on practical orientation of the rights of prisoners.

Therefore, it becomes a humble attempt to fill the gap of the practical aspects of the

literature.

For the convenience and clarity of the present study, review of the literature is

divided into four parts:

1. Guidelines given by the United Nations and other National & InternationalHuman Rights Organisations

2. Various Acts, Rules, Jail Manuals and Committee Reports

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3. Guidelines given by the Supreme Court of India and High Courts

4. Books, Journals, Research Studies and Reports

1.2.1 Guidelines given by the United Nations and other National and InternationalHuman Rights Organisations

(a) Standard Minimum Rules for the Treatment of Prisoners17 is the first major United

Nations document which advocates the rights of the prisoners. As per these rules, the

purpose and justification of a sentence of imprisonment or a similar measure deprivative

of liberty is ultimately to protect the society against crime. This end can only be achieved

if the period of imprisonment is used to ensure, so far as possible, that upon his return to

the society the offender is not only willing but able to lead a law-abiding and self-

supporting life.

Putting stress on the basic human needs of the prisoners like food, drinking water,

health and hygiene, the Rules say that every prisoner shall be provided by the

administration at the usual hours with food of nutritional value adequate for health and

strength, of wholesome quality and well prepared and served. Drinking water shall be

available to every prisoner whenever he needs it.18 The sanitary installations shall be

adequate to enable every prisoner to comply with the calls of nature when necessary and

in a clean and decent manner.19 Adequate bathing and shower installations shall be

provided so that every prisoner may be enabled and required to have a bath or shower, at

a temperature suitable to the climate, as frequently as necessary for general hygiene

according to season and geographical region, but at least once a week in a temperate

climate.20

Further, the Rules say that where sleeping accommodation is in individual cells or

rooms, each prisoner shall occupy by night a cell or room. If for special reasons, such as

temporary overcrowding, it becomes necessary for the central prison administration to

make an exception to this rule, it is not desirable to have two prisoners in a cell or room.

17 Standard Minimum Rules for the Treatment of Prisoners (1955) adopted by the First United NationsCongress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, andapproved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076(LXII) of 13 May 1977.

18 Ibid., Rule 2019 Ibid. ,Rule 1220 Ibid., Rule 13

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Where dormitories are used, these shall be occupied by prisoners carefully selected as

being suitable to associate with one another in those conditions. There shall be regular

supervision by night, in keeping with the nature of the institution.21 All accommodation

provided for the use of prisoners and in particular all sleeping accommodation shall meet

all requirements of health, due regard being paid to climatic conditions and particularly to

cubic content of air, minimum floor space, lighting, heating and ventilation. 22

Advocating the right of communication, the Standard Minimum Rules say that

Prisoners shall be allowed under necessary supervision to communicate with their family

and reputable friends at regular intervals, both by correspondence and by receiving

visits.23

Regarding right to education, Rule 77 says, “Provision shall be made for the

further education of all prisoners capable of profiting thereby, including religious

instruction in the countries where this is possible. The education of illiterates and young

prisoners shall be compulsory and special attention shall be paid to it by the

administration. So far as practicable, the education of prisoners shall be integrated with

the educational system of the country so that after their release they may continue their

education without difficulty.”

As per Rule 84 the undertrial prisoners are presumed to be innocent and shall be

treated as such. Rule 85 says that the undertrial prisoners shall be kept separate from

convicted prisoners and young undertrial prisoners shall be kept separate from adults and

shall in principle be detained in separate institutions.

(b) The second most important document on basic rights of prisoners is Body of

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

Imprisonment.24 It advocates the basic human rights and dignity of the prisoners and

says, ‘All persons under any form of detention or imprisonment shall be treated in a

humane manner and with respect for the inherent dignity of the human person.’ Principle

21 Ibid., Rule 0922 Ibid., Rule 1023 Ibid., Rule 3724 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonmentadopted by UN General Assembly Resolution 43/173 of 9 December 1988

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6 of this Resolution prohibits any kind of torture, cruel behaviour, inhuman or degrading

treatment of prisoners.

As per Principle 17 of this Resolution, “A detained person shall be entitled to

have the assistance of a legal counsel. He shall be informed of his right by the competent

authority promptly after arrest and shall be provided with reasonable facilities for

exercising it. If a detained person does not have a legal counsel of his own choice, he

shall be entitled to have a legal counsel assigned to him by a judicial or other authority in

all cases where the interests of justice so require and without payment by him if he does

not have sufficient means to pay.”

Principle 19 of this Resolution is related with the right of prisoner to correspond

with the members of his family and friends. A detained or imprisoned person shall have

the right to be visited by and to correspond with, in particular, members of his family and

shall be given adequate opportunity to communicate with the outside world, subject to

reasonable conditions and restrictions as specified by law or lawful regulations.

Principle 38 of this Resolution lays stress on quick trial and provision of bail. A

person detained on a criminal charge shall be entitled to trial within a reasonable time or

to release pending trial. Principle 39 of this Resolution further says that “Except in

special cases provided for by law, a person detained on a criminal charge shall be

entitled, unless a judicial or other authority decides otherwise in the interest of the

administration of justice, to release pending trial subject to the conditions that may be

imposed in accordance with the law”.

Principle 16 of this Resolution is related with the ‘foreigner prisoners’ which

makes provision for immediate consular access or correspondence with the diplomatic

mission of the Country of which he is a national.

(c) The third UN document related with the rights of prisoners is Basic Principles for

the Treatment of Prisoners.25 It provides for the treatment of prisoners with respect due

to their inherent dignity and value as human beings. It prohibits any kind of

discrimination on the grounds of race, colour, sex, language, religion, political or other

25 Basic Principles for the Treatment of Prisoners, adopted and proclaimed by UN General AssemblyResolution 45/111 of 14 December 1990 of the UNO

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opinion, national or social origin, property, birth or other status. It also advocates for

protecting the basic rights set out in the International Covenant on Civil and Political

Rights. It also describes the right of prisoners to take part in cultural activities and

education aimed at the full development of the human personality. It further lays stress on

the rehabilitation of the prisoners in the society after release through community

participation and support from social institutions.

(d) Commonwealth Human Rights Initiative in the “Recommendations on Prisoners

Rights" (1995) advocates to adopt measures to ensure freedom of communication

between the prisoner and members of his or her family who should be permitted periodic

visits under conditions which while safeguarding security do not impair privacy of

communication. Legal aid should be given to an accused at the first point of contact with

the police. The right of a prisoner to see a lawyer of his/her choice should be ensured.

Meetings with the lawyer may be subject to reasonable regulation as to time and place

but not held within the hearing of prison officials. Urgent steps should be initiated to

reduce the delays in bringing prisoners to trial. While prisoners serve their terms, their

inner creativity should be developed so that when they are released, they can be more

easily integrated into the society. It was stressed that with a view to affording greater

access to and interaction with the family, the criteria for giving parole should be relaxed.

(e) National Human Rights Commission of India (NHRC) speaks on the problems of

undertrial prisoners which have now assumed an alarming dimension. Almost 80 percent

of prisoners in Indian jails are undertrials. The majority of undertrial prisoners are people

coming from poorer and underprivileged sections of the society with rural background.

Indeed in most of the jails, there is predominance of undertrials. Many of them who have

committed petty offences are languishing in jails because their cases are not being

decided early for reasons which need not reiterated. On the general living conditions of

the prisoners the Commission says, “It is an unfortunate reality that the living conditions

of prisoners in most of the jails in the various States and Union Territories leave much to

be desired. Overcrowding is the main reason for this a principal reason being the

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presence of undertrial prisoners who languish in jail for long periods because of the

slowness of the judicial process."26

For the overall mental and physical growth and development of the prisoners the

National Human Rights Commission of India says:

i) “As prisoners have a right to a life with dignity even while in custody, they

should be assisted to improve and nurture their skills with a view to promoting

their rehabilitation in society and becoming productive citizens. Any restrictions

imposed on a prisoner in respect of reading materials must therefore be

reasonable.

ii) In the light of the foregoing, all prisoners should have access to such reading

materials which are essential for their recreation or the nurturing of their skills

and personality, including their capacity to pursue their education while in prison.

(iii) Every prison should, accordingly, have a library for the use of all categories

of prisoners, adequately stocked with both recreational and instructional books

and prisoners should be encouraged to make full use of it. The materials in the

library should be commensurate with the size and nature of the prison population.

(iv) Further, diversified programmes should be organized by the prison authorities

for different groups of inmates, special attention being paid to the development of

suitable recreational and educational materials for women prisoners or for those

who may be young or illiterate. The educational and cultural background of the

inmates should also be kept in mind while developing such programmes.” 27

1.2.2 Various Acts, Rules, Jail Manuals and Committee Reports

Prison as a subject of legislation has been placed under Entry 4 in List-II [State

List] of the Seventh Schedule of the Constitution of India. Hence, prisons in different

States vary in their organization, rules and models. All the States have their own Manuals

based upon the Prisons Act, 1894, which is a central legislation.

Articles 14, 21 and 22(1) of the Constitution of India make it obligatory for the

State to ensure equality before law and a legal system which promotes justice on a basis

26Annual Report 2002-03, National Human Rights Commission of India, New Delhi

27 National Human Rights Commission, Guideline No. 68/5/97-98, 1 March 2000

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of equal opportunity to all. Article 39-A provides that State shall secure that the operation

of the legal system promotes justice on a basis of equal opportunity, and shall in

particular, provide free legal aid by suitable legislation or schemes or in any other way to

ensure that opportunities for securing justice are not denied to any citizen by reason of

economic or other disability. In 1987, the Legal Services Authorities Act was enacted to

give a statutory base to legal aid programmes throughout the country on a uniform

pattern.

Legal aid strives to ensure that Constitutional pledge is fulfilled in letter and spirit

and equal justice is made available to the poor, downtrodden and weaker sections of the

society. A detained or imprisoned person shall be entitled to communicate and consult

with his legal counsel. A detained person shall be entitled to have the assistance of a legal

counsel. He shall be informed of his right by the competent authority promptly after

arrest and shall be provided with reasonable facilities for exercising it.

The All India Jail Reforms Committee, which worked during 1980-83, has

elaborated the rights to basic minimum needs for the prisoners. These include right to

fulfillment of basic minimum needs such as adequate diet, health, medical care and

treatment, access to clean and adequate drinking water, access to clean and hygienic

conditions of living accommodation, sanitation and personal hygiene, adequate clothing,

bedding and other equipment.

The Bureau of Police Research and Development prepared Model Prison Manual

for all the States, in the year 2003. It defines all the rights of the prisoners in detail.

Realizing the need of education to the inmates, it says that ‘education of

prisoners’ benefits the society as well as it leads to their rehabilitation and self-

sufficiency. Education reduces the tendency to crime. This would mean less crime, fewer

victims, fewer prisoners, more socially productive people and less expenditure on

criminal justice and law enforcement.28

Describing the rights to communicate with outside world, the Manual says, “On

admission every prisoner should submit a list of persons who are likely to interview

him/her and the interview shall be restricted to such family members, relatives and

friends. The conversation at the interviews shall be limited to private and domestic

28 Model Prison Manual, 2003, Para 13.01

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matters and there shall be no reference to the prison administration and discipline and to

other prisoners or politics. The number of persons who may interview a prisoner at one

time shall ordinarily be limited to three."29 Vocational training programmes should be

designed to suit the needs of prisoners sentenced to short, medium and long term

imprisonment.30 It also suggests to liaise with the department of technical education and

other institutions to impart vocational training and also to award regular Certificate and

Diploma after successful completion of the courses.

Concerned over the time taken by courts in deciding cases, the former President

of India, Dr. A.P.J. Abdul Kalam31 suggested that a study be conducted to examine the

judicial delays. Inaugurating a seminar on narcotic drugs and psychotropic substances,

Dr. Kalam said, “Of course, there is a need to speed up the judicial process with

minimum adjournment.” He further said: “Probably, it may be useful to conduct a case

study of hundred cases to examine the number of adjournments and the duration it has

taken to settle the case on an average.”

The Punjab Jail Manual says that the different categories of prisoners for the time

being confined in every jail should be kept in separate institutions, part of institutions,

units taking into account their sex, age, condition of health, criminal record, the legal

reason for their detention and necessities for their treatment.32

1.2.3 Guidelines given by the Supreme Court of India and High Courts

The Supreme Court of India has given some landmark judgments, which are

treated as Magna Carta in the administration of prisons in India. The most important

judgment is Sunil Batra vs. Delhi Administration33. It gives legal sanction to the Standard

Minimum Rules for Prisoners as recommended by the United Nations.34

In a number of judgments on various aspects of prison administration, the

Supreme Court of India has laid down three broad principles:

a. A person in prison does not become a non-person.

29 Ibid., Para 08.0330 Ibid., Para 14.1031 The Tribune, Chandigarh, 27 March 200632 Supra Note 14, Para 49533 Sunil Batra vs. Delhi Administration, (1978) 4 SCC 49434 Supra note 17

17

b. A person in prison is entitled to all human rights within the limitations of

imprisonment.

c. There is no jurisdiction in aggravating the suffering already inherent in the

process of incarceration.

The Supreme Court of India in Sunil Batra vs. Delhi Administration35 says that, whether

inside prison or outside, a person shall not be deprived of his guaranteed freedom save by

methods ‘right, just and fair’.

The Apex Court has given directions to provide free legal aid to the poor and

needy persons and to introduce ‘Transcendental Meditation’ for maintaining the dignity

of the ‘inner man’. Prison houses are part of Indian earth and the Constitution cannot be

held at bay by jail officials….Drug racket, alcoholism, smuggling, violence, theft,

unconstitutional punishment by way of solitary cellular life and transfers to other jails are

not uncommon.

The Apex Court rightly raised the question and answered,

“Are prisoners’ persons? Yes, of course. To answer in thenegative is to convict the nation and the Constitution ofdehumanization and to repudiate the world legal order,which now recognizes rights of prisoners in theInternational Covenant on Prisoners’ Rights to which ourcountry has signed assent”.36

Concerned over the stigma, children born in jail to accused women carry for life,

the Supreme Court has directed jail authorities across the country to ensure that all such

expectant mothers be sent to hospitals outside the prison for delivery. Also laying down

various guidelines regarding welfare of women jail inmates and their children, the court

said that the purpose of ensuring the delivery of child outside the prison hospital was to

avoid mention of jail's name in the birth certificate of the child, so as to save him of

‘stigma’. A child below six years of age is permitted under the law to live with his or her

mother in the jail if there is no reasonable arrangement in the family or there are no

relatives to look after the child. Protection of the fundamental rights of such children,

35 Supra Note 3336 Sunil Batra vs. Delhi Administration,36 (1980) 3 SCC 488

18

their proper education and healthcare were the responsibilities of the State and the same

could not be allowed to be violated.37

Hearing on a Public Interest Litigation seeking directions to the Government of

India and other respondents to initiate steps to facilitate the release and return of Indian

citizens languishing in various Pakistani jails despite their prison term having ended, a

Division Bench of the Punjab and Haryana High Court ordered to pay the compensation

of Rs 10,000 for every year that he spent in jail after the completion of his sentence, to

each of the 42 Pakistani prisoners, who have been kept in the Punjab jails despite the

completion of their term.38

1.2.4 Books, Journals, Research Studies and Reports

In his research study, Sandhu (1968) has discussed the impact of longer

imprisonment on human beings and also has taken up the concept of group therapy of

prisoners. The concept of background factors of prisoners has also been taken into

consideration, but the bare human vis-à-vis prisoners needs of food, drinking water and

accommodation and more so the human rights of prisoners has not been touched by

him.39

Robert Albert(1974), in his book Correctional Treatment of Offenders lays stress

on the various aspects of rehabilitation of offenders like role of environment in the field

of rehabilitation, treatment for juvenile delinquents etc. More so, he has provided a

model of secondary education in prisons in detail. However, we do not find the

phenomenon of human rights focusing on the fundamental needs mentioned above, on

which the present researcher desires to concentrate.40

37 R.D. Upadhyay vs. State of Andhra Pradesh & others, Writ Petition (Civil) 559 of 1994, Supreme CourtCases38

World Human Rights Protection Council through its chairman, Advocate Ranjan Lakhanpal vs. State of

Punjab, CWP Number 10069/2005 decided on April 26, 2006

39 Sandhu H.S.: A study of prison Impact, Punjab University Publication, Chandigarh, 196840 Roberts, R Albert: Correctional Treatment of Offenders, Charles C. Thomas Publishers, Springfield,1974

19

Duffe and Fitch41 (1976) deal with prisons institutions and the origins of

contemporary prisons in detail and also throw light on future prisons. More so, the

regular functioning and day-to-day routine of prisoners have been touched in an

evaluative way to justify the yardsticks of criminal justice system. But the basic

phenomena like food, clothing, drinking water as well as speedy justice are missing,

which are fundamentals of human rights. Much stress has been laid on impact of pre-

convictional operations on the correctional strategies. The rights of indigent dependents

in correctional systems have been discussed in detail, but human rights of undertrials are

not touched.

Describing the concept of open prisons, Jones and Cornes (1977) highlight on the

successful working of open prisons alongwith requisite infrastructure required. However,

the basic needs and rights of prisoners are missing.42

Carter and Glaser (1977) underline correctional institutions with special reference

to the topics like use of prisons with comparative outlook with the concepts like crisis in

prison population from various angles. Organizational and administrative aspects have

been elaborately discussed in this work.43

Rahi in his study The Functioning of Punjab Prison44 has contributed in the field

of historical development of prisons and operational impact of correctional system in

Punjab. This research work deals with structure of prisons staff, educational programmes

in prisons, trade and vocational training, cultural, religious as well as sports programmes.

Goffman (1961) in his essay Characteristics of Total Institutions provides us a

summary of one of his key concepts, that of the “Total Institution.” In defining this

concept, Goffman delineates the key features of totalitarian social systems. Should a

person reside in such a system, it encompasses his or her whole being. It undercuts the

resident's individuality. It disregards his or her dignity. It subjects the individual to a

regimented pattern of life that has little or nothing to do with the person's own desires or

41 Duffee, David and Fitch, Robert: An Introduction to Corrections, Goodyear Publishing Company,California, 197642 Jones, Howard and Cornes, Paul: Open prisons, Routledge and Kegan Paul, London, 197743 Carter, Robert Melvin and Glaser, Daniel: Correctional Institutions, Lippincott Company, Philadelphia,197744 Rahi, Malkiat Singh : The functioning of Punjab Prison: An Appraisal in the Context of CorrectionalObjectives, submitted to GNDU, 1987

20

inclinations. And it is inescapable. A prison is a kind of Total institution and a prisoner is

an inmate as per this principle.45

Dangwal46 (1995) in Kiran Bedi’s biography states her viewpoint, “ my day and

night observation rounds of the jails revealed that a nexus of staff, drug peddlers and

prisoner addicts were holding jail 4 of Tihar to ransom. The dispensaries were

pathetically short of alternative drugs for prisoner-addicts and they had no option but to

continue with their habits and become totally dependent on, and subservient to, the drug

mafia operating within the jail. Nothing was possible; nothing could be done for the

prisoners, till this rampant evil was rooted out.” This work is quite revealing regarding

the jail administration.

According to Kiran Bedi47 (2005), the foreign inmates’ plight was no different

from that of their Indian counterparts. But their agony was magnified due to problems of

communication, food habits, cultural differences, lack of visitors, shortage of money and

shabby clothing.

Malhotra48 (2003) deals with promotion of human rights on the part of non-

governmental organizations. A complete Chapter has been contributed to the introduction

and classification of Non-Governmental Organisations (NGO). This project evaluated the

critical aspects of NGO’s functioning.

Ritu (2004)49 observed that crime was less among educated females since they

were more aware of the law and can evaluate their actions. Bedi50 (2005) expressed that

women prisoners were subjected to the most humiliating experiences, which robbed them

of what little dignity and self-respect they reached the prison with.

On the basis of the review of the literature, the following basic human rights issues

emerge:

i) Lack of proper accommodation, overcrowding and sanitation

45 Goffman, Erving: Asylums: Essays on the Social Situation of Mental Patients and Other Inmates, AnchorBooks, New York, Doubleday,1961[www.diligio.com/goffman.htm]46

Dangwal, Parmesh: I dare! Kiran Bedi A Biography, USB Publishers’ Distributors Ltd, New Delhi, 199547 Bedi, Kiran: It’s always Possible, Sterling Publishers Private Limited, New Delhi, 200548 Malhotra, Rajni: Role of Non Governmental Organisation in the Promotion and Protection of HumanRights- A Study with Special Reference to Punjab, submitted to GNDU in 200349 Ritu: Causes and Consequences of Criminality among Women in North-Western India—A Micro LevelAnalysis (Ph. D. Thesis), P.A.U. Ludhiana, 2004.50 Supra Note 46

21

ii) Lack of proper food, drinking water, medical care, health and hygiene

iii) Improper and inadequate contact with outside world

iv) Problems of undertrial prisoners

v) Problems of foreigners

vi) Problems of women and children

The abovementioned studies have dealt with the problems of prisons and

prisoners in isolation. Prisoners’ rights and prison conditions is a new area of study with

humanistic approach. No such study in an empirical manner has been conducted so far in

depth to know the problems of prisoners and various human rights issues especially in the

context of the Punjab Jails. Therefore, there is a need of a comprehensive study covering

all relevant aspects of the right of prisoners. The present study is a humble attempt to fill

this gap. It envisages throwing an insight into various aspects of the human rights of

prisoners especially in the environment of the Punjab Jails in general and Amritsar

Central Jail in particular.

1.3 Aims and objectives

The proposed study aims to examine the basic human rights issues of prisoners in

Indian jails, with particular reference to Amritsar Central Jail. The main objectives of this

study are:

i. To examine the existing living conditions in the jails

ii. To evaluate the problems faced by the undertrial prisoners due to delay in the

disposal of cases

iii. To learn the problems faced by the foreign inmates in the jails

iv. To appraise the basic rights of the women prisoners and their children

v. To examine and evaluate the human rights issues of the prisoners

vi. To propose a proactive action plan to ensure protection of human rights of the

prisoners

While looking at the rights of undertrial prisoners, this research study will also

evaluate the average time duration and average number of adjournments in the trials of

22

the cases in the courts. This area is required to be studied in detail to ensure proper

justice.

The present research aims to examine the prevailing conditions in the jails from

human rights perspective in particular.

1.4 Methodology

The universe of the study is Amritsar Central Jail. The research methodology

includes the collection of data from primary and secondary sources. Primary data for the

study was collected through a structured interview schedule, participant observation and

brief case studies. Primary data have been collected to know the socio-economic status of

the prisoners, actual living conditions and troubles faced by them with the help of

interview schedule prepared for the specific groups.

Amritsar Central Jail has two sections – Central Jail- I and Central Jail- II. Central

Jail- I has five barracks and four cells including one separate barrack for women inmates.

In the barrack No. 4 and 5, convicted prisoners are accommodated in normal

circumstances. Central Jail- II is also known as Security Jail, where hardcore and

desperate inmates are accommodated and most of them are undertrials. It has four

barracks and four cells. In one of the cells of Central Jail- II, only condemned51 prisoners

were lodged. This cell was kept out of the preview of the study as these inmates are not

permitted to be interviewed.

Prison population is not of a permanent character. New people come and others

go out from the prison everyday. Given the transient nature of prison population, it is

often very difficult to find an adequate and representative sample which could form the

basis of study. To obviate this difficulty, recourse was taken to draw large sample sizes

aimed at minimizing the errors. Finally, a sample size of 300 prison inmates' respondents

was chosen for intensive study. Every barrack and cell was given due representation

while taking sample for the study. Out of these 300 inmates, 200 inmates were undertrials

and one hundred were convicted including women and detenues.

51 Condemned prisoners are those who have been awarded death sentence.

23

The Interview Schedule was prepared to know the various aspects which include

socio-economic conditions, general living conditions, communication and education and

the rights of undertrial prisoners. It was divided into five parts as under:

Part A: Socio-economic status of prisoners

Part B: General living conditions inside jail

Part C: Undertrial prisoners

Part D: Interview and Communication

Part E: Education

Apart from Amritsar Central Jail, the present researcher visited some other jails of

Punjab to get acquainted with prison conditions and human rights issues before

preparation of Interview Schedule. He visited Ludhiana Central Jail, Jalandhar Central

Jail, Patiala Central Jail, Chandigarh Jail and Women Jail of Ludhiana for this purpose.

He recorded his observations in the form of field notes and finally drafted the human

rights issues prevalent there. In the light of these issues, an Interview Schedule was

prepared for collection of data. This Interview Schedule was pretested to make it more

accurate and precise. In this connection, 20 inmates were interviewed. A dummy thesis

was prepared on the basis of these 20 interviews. The final Interview Schedule was

prepared after eliminating irrelevant questions and adding some relevant questions.

Thereafter, it was translated into Punjabi language. For the collection of data, English and

Punjabi both the versions were used. A copy of the Interview Schedule, both English and

Punjabi version are enclosed for reference as Annexure 1 and 2.

To study the human rights of undertrial prisoners and the delay in trial of the cases,

opinions of Judges, Investigating Officers, Prosecutors, Lawyers and Prison officials

were collected through personal interviews with them. Secondary data have been

collected from the Journals of National Human Rights Commission, Bureau of Police

Research and Development and National Crime Records Bureau especially regarding

overcrowding and related problems, average time taken by the courts in the disposal of

cases, etc. These were supplemented by information obtained from the office of the

Superintendent of Amritsar Central Jail and Tihar Jail, Delhi regarding foreign inmates.

Observation method has also been used additionally to get information regarding living

conditions especially about the accommodation, drinking water, preparation and

24

distribution of food, sanitary conditions etc. However, most of the data have been

collected through personal interviews of the prisoners.

The difficulty faced by the researcher during collecting such data was that the

prison inmates generally refrain from talking about prison conditions and the facilities

available or their absence in the jail. It is very thorny business for a researcher to

establish rapport with the prisoners since they are wary about revealing themselves. To

overcome this drawback, some educated inmates were associated with the study. Ten

such inmates were identified and were briefed about the nature and purpose of the study.

The core issues were discussed with them in detail for one week. Thereafter, they were

requested to start collection of data through the Interview Schedule. It took considerable

cajoling and persuasion to open up and answer the questions posed to the respondents.

They had to be constantly assured that the study being conducted is strictly for academic

purposes and would have no legal bearing on their cases. Only then were they willing to

participate in the study and provide responses to various questions posed to them and talk

relatively openly.

After collection of data, it was tabulated with the help of a computer

programming in ‘Microsoft Access’ especially designed for this purpose by the

researcher. However, tabulation of unstructured questions was done manually. The

responses were presented in tabular form and comparison of variables was done in

percentage. To make the comparison more presentable, the Bar diagram, Pie chart, Line

diagram and other statistical applications were used as per requirement.

Foreigner prisoners lodged in the jails have some specific problems as they are

not in a position to enjoy some of the privileges available for the native inmates.

Therefore, there was a need to examine the human rights issues related with them

separately. For this purpose, an information sheet was designed to collect required

information in respect of all 88 prisoners of foreign background. Some part of the

information sheet was filled in by interviewing the inmates and some information was

obtained from the Prison Office. Some of the Prison Officers dealing with the foreigners

were also interviewed. Some of the inmates were found mentally unsound and, therefore,

partial information could be obtained in that respect.

25

Similarly, it was observed during the study that women inmates are also a

neglected lot in the prisons. Approximately 100 women were lodged in Amritsar Central

Jail at the time of data collection. The needs and requirements of women often differ

from their male counterparts. Women need gender-specific facilities for healthcare, to

help them in childbirth, to care for their children in prison, to receive counselling to guard

against the possibility of rape and sexual assault and to maintain contact with their

dependants outside the prison. Therefore, information was collected about women

inmates through exhaustive interviews. For this purpose, ten women inmates were

selected and interviewed.

1.5 Chapter Plan

The study has been divided into the following chapters:

Chapter One: Introduction

This Chapter highlights the nature and scope of this study throwing light on the

human rights of prisoners besides review of literature, aims and objectives and research

methodology.

Chapter Two: Socio-economic Profile of the Prisoners

This Chapter emphasizes upon socio-economic characteristics of prison inmates with

special reference to Amritsar Central Jail. This helps to be acquainted with the socio-

economic, demographic and cultural characteristics of the inmates like age, sex, category,

education, linguistic background etc on the basis of sample collected for the study.

Chapter Three: Prison Overcrowding and Human Rights

This Chapter deals with prison overcrowding and its implications. Overcrowding

results in deterioration of the general living conditions of the prisoners. This chapter also

discusses the nature and extent of overcrowding with special reference to Amritsar

Central Prison. It also looks at causes and consequences of overcrowding and suggests

remedial measures.

Chapter Four: General Living Conditions of Prisoners and Human Rights

This Chapter underlines general living conditions of prisoners especially in the

context of Amritsar Central Jail. This includes basic human needs like food, drinking

26

water, medical facilities and accommodation and sanitation. A person in any kind of

detention cannot be deprived of basic human needs.

Chapter Five: Right to Communication

This Chapter deals with prisoners’ contact with their relatives, friends and outside

world. Every prisoner either convicted or undertrial is entitled to communicate with his or

her family members, relatives and friends on regular basis within the framework of rules

and guidelines. This chapter details about the provisions made in various manuals or

guidelines regarding contact with outside world, their practical applicability and further

suggestions for improvements.

Chapter Six: Human Rights of Undertrial Prisoners

This Chapter highlights specific human rights issues of prisoners facing trials in the

courts. It includes treatment of undertrials, delay in the trial, legal aid and vexatious arrest

besides other human rights aspects.

Chapter Seven: Prisoners’ Right to Education

This Chapter describes right to education for the prisoners and also the role of

education in the reformation of prisoners as well as prison system.

Chapter Eight: Human Rights of Foreigner Prisoners

This Chapter examines specific rights having bearing on the status of foreigner

prisoners. It also throws light on the plight of internees detained in the jails even after

completion of the period of imprisonment.

Chapter Nine: Human Rights of Women Prisoners

This Chapter deals with general living conditions and human rights issues of women

inmates and their children.

Chapter Ten: Summary and Conclusions

This is the last Chapter which summarizes the present study and provides specific

recommendations and suggestions to protect the basic human rights of the prison inmates.

…………..