Rights of the citizens are the life breath of any democracy and the position of the prisoners is not different. The rights of women prisoners have been given national as well as international recognition. In India, due to the non-uniformity and abundance of laws, the Ministry of Home Affairs brought about the National Model Prison Manual, 2016 which provided uniform standards and guidelines for regulation of prisons. The same was to be adopted by every State and Union Territory. The Prisoner’s Act, 1894, under Section 27 (1) provides for the right to live in separate cells or buildings from the male prisoners. Section 31provides an unconvicted civil or criminal prisoner to receive and purchase necessities from private sources, and in case such a person is unable to provide the Superintendent under Section 33 (1) will supply the same for himself. Further, it provides for, safe custody, proper accommodation & sanitary conditions and examination by a qualified medical officer.
The Police Act, 1861
Section 29 of the
Police Act, provides that, "every police officer who shall be guilty of any violation of
duty or wilful breach or neglect of any rule or regulation of lawful order made
by competent authority, or who shall withdraw from the duties of his office without
permission, or without having given previous notice for a period of two months, or who,
being absent on
leave shall fail, without reasonable cause, to report himself for duty on the expiration of
such leave or who shall engage without authority in any employment other than
his police duty, or who shall be guilty of cowardice, or who shall offer any
unwarrantable personal violence to any person in his custody shall be liable, on conviction
before a Magistrate, to a penalty not exceeding three months' pay, or to
imprisonment with or without hard labour, for a period not exceeding three months or
both."
In the case
of Dr. Mehmood Nayyar Azam v. State of Chattisgarh and Others[1], the appellant,
while in custody, was compelled to hold a placard in which condemning language
was written. He was photographed with the said placard and the
photograph was made public. After referring to various provisions, the learned single
Judge called for
a report from the
Chief Secretary. The
Superintendent of Police filed the
report stating that the
Sub-Inspector had been imposed punishment of “censure”. It was also set forth
that a charge-sheet was served on
all the erring
officers and a
departmental enquiry was held and
in the ultimate
eventuate, they had been imposed major penalty of withholding of one annual
increment and a
case had been registered under Section 29 of the Police Act against the erring officer.
In the appeal,
Division Bench observed that, "On a reflection of the facts of the case, it is luculent that the appellant had
undergone mental torture at the
hands of insensible police officials. Regard being had to the various aspects
which we have analysed and
taking note of the
totality of facts and
circumstances, a sum of rupees five lakh should be granted towards compensation
to the appellant. The said amount
shall be paid by the
respondent State within a period of six weeks and be realized from the erring officers
in equal proportions from their salary as thought appropriate by the competent
authority of the
State".
Indian Penal Code, 1860
Custodial Violence is anathema in any civilized society. "It is a matter of
concern and is aggravated by the fact that it is committed by
persons who are supposed to be protectors of the citizens”.[2] the European
Court of Human Rights in 1997 regarding a case of custodial rape, acknowledged
that rape of a detainee by an official of the state must be considered to
be an especially grave and abhorrent form of ill-treatment given the ease
with which the offender can exploit the vulnerability and weakened
resistance of the victim. Furthermore, rape leaves deep psychological
scars on the victims that do not respond to the passage of time
as quickly as other forms of physical and mental violence.[3]
Custodial rape remains one of the worst forms of
torture perpetrated on women by law enforcement personnel. Such sexual
assault by the custodian of law on the helpless women has
touched the collective consciousness of the society and the
resultant reaction force the government to insert the following
Sections 375, 376, 376A, 376B, 376C and 376D were inserted into the Indian Penal Code, 1860 through the Criminal
(Amendment) Act, 2013, in order to provide protection to women against
custodial sexual abuse, not amounting to rape. In section, 29 of IPC, the Indian Police
Act and Police
Manuals prescribe certain limitations to the exercising of police powers and attempt to
regulate police conduct in their interaction with citizens.
The Criminal Procedure Code, 1973
Prisoners are protected under the provisions of Cr. P.C. In our
criminal justice system legal ethics is very clear, “let thousands of criminals are let
out, but a single innocent should not be punished”. Starting from first step of
arrest till end of trial in every stage the accused is conferred with several rights. Before the trying court
till his guilt is
proved the accused is also considered
to be innocent and
even as an under trial prisoners any violation of his rights is considered as
violation of Human Rights. In D.K Basu
V. State of West Bengal[4] has held that transparency of action and accountability
are perhaps two possible safeguard that courts must insists upon.
1. Right to be informed of the ground of arrest and right to bail –
S.50, 55, and 75.
When the
provisions of sec. 50 have not been complied with the non- consideration of such of non
– conformance by the
court when considering the
question of bail operates to the
prejudice of the
arrested person and is liable to be set
aside to this grounds. This section should be strictly complied with.[5] In another
case,[6] it was held
that accused would be within his right to be point out that the said provisions
have not been complied with as provided under as constitution.
2. Right not to be subjected unnecessary restraint – S. 49.
3. Right against arbitrary or illegal detention in custody –
S. 50, 56, 57 and
76.
4. Right to be released on bail if arrested – S. 436, 436-A, 437, 50(2) and 167.
5. Right to be produced before Magistrate within 24 hours of
arrest- S. 57.
6. Right to fair and speedy trial –
S.309: Section 309
(1) of the criminal
procedure code provides that in every inquiry or trial, the proceedings shall be held as
expeditiously as possible. Similarly, mere sentence does not restrict the right to
freedom of religion. Women prisoners have the right to speedy trial. There is an undoubted
right of speedy trial of under trial prisoners, as held in a catena of cases of
Supreme Court. The
Supreme court of India in the
case of Hussainara Khatoon vs Home Secretary, State of Bihar[7] held
that speedy trial is
a fundamental right implicit in the
guarantee of life and
personal liberty enshrined in Article 21 of the Constitution
7. Right of to be accused person to
be examined by a Registered Medical Practitioner to disprove the commission of
an offence by him. The
Section 54
of the Code of
Criminal Procedure 1973 provides for
examination of body of an arrested person by a registered medical practitioner
at the request
of the arrested
person in case of torture and
maltreatment in lock ups. But generally women prisoners are not aware of this
right.[8] Before sending
a woman who is
pregnant to a jail, the
concerned authorities must ensure that jail in question has the basic minimum
facilities for
child delivery as well as for
providing pre- natal and
post-natal care for
both, the mother and the child.
Gynaecological examination of female prisoners shall be performed in the District health
centres.
8. Right to legal aid at the expense of the state in certain cases – S. 304.
The Criminal Procedure Code, 1973 also provides several
safeguards to arrested, accused and
convicted persons. The
Code provides for the following protections
to women prisoners[9]
which should be followed by authorities such as police, Court or prison
authorities, while dealing with them.
In the Section 303 of the Criminal
Procedure Code, 1973 empowers the
prisoners to be defended by the
pleader of their choice and
Section 304 of this code provides that in certain cases legal aid is to be provided
at state expense.
Release of Women Prisoners on Probation of
Good Conduct
The Code provides special protection to an accused who is under twenty
years of age or any woman (of any age) convicted of an offence not punishable
with death or imprisonment for
life.
According to the
Code, "if no previous conviction is proved against such convicted women, the Court can order
release on probation
of good conduct and on entering into a
bond to keep peace. It further provides that while releasing on bond, the Court should
keep in mind the
age, characters or antecedents of the
offenders”.[10] the object of this
Section is to
avoid sending the
first time offender to a prison for the offence,
provided that it is
not of a serious character and
thereby running the
risk of turning him into a habitual criminal.[11]
Postponement of Execution of Death Sentence
Section 416 of Cr. P.C., 1973 empowers the High Court to
postpone the execution
of death sentence awarded to a woman who is found to be pregnant at the time of execution. The high Courts
have been given the
discretion to commute the
death sentence to sentence of imprisonment for life.[12] This provision is in consonance
with the International
Covenant on Civil and Political
Rights, 1966.
Rights of the Prisoners Under the Evidence Act
The section 101 of the Indian Evidence Act, 1872 states that, in every
criminal trial, the
criminal is presumed
to be innocent till proved guilty and the benefit of
doubt is given
in favor of the
accused. If the
person desire the
Court to give judgment according to the legal rights or in accordance with the facts, which he
asserts, then the
burden is on him to prove
that such facts exist. The
section 25 and
28 states that, after the
confession of evidence to a police officer make the police in admissible to torture the accused during the interrogation.
The section 330 and
331 states that, the
causing of hurt in order to extort confession is punishable offence and section 348 is has been stated
that, wrongful confinement to extort confession is an aggravated crime.
The Transfer of Prisoners Act, 1950
This act was enacted for the
transfer of prisoners from one state to another for rehabilitation or vocational
training. This Act is
also helpful for
transfer of prisoners from over-populated jails to less congested jails within the state.
In 1951, the
Government of India invited the
United Nations expert on
correctional work, Dr. W.C. Reckless, to undertake a study on prison
administration and
to suggest policy reform. His report titled Jail Administration in India made a
plea for transforming
jails into reformation centres. He also recommended the revision of outdated jail manuals.
In 1952, the eighth
Conference of the
Inspector General's of prisons also supported the recommendations of Dr. Reckless
regarding prison reform.
In 1957 All India Jail Manual Committee was appointed by
Government of India to prepare the
Prison Manual. The
report submitted for
formulating a uniform policy of prison and adopt the latest method in jail administration, probation,
remand homes, protective homes etc. The report suggested the amendments in the Prison Acts
1894 to provide a legal base for
correctional work.[13]
In 1980, the
Government of India set up committee on Jail Reforms under the chairmanship of Justice A.N. Mulla. The main objectives
of the committee
to review the laws,
rules and regulations and overall
objectives of protecting society and
rehabilitation for
offenders.
Important recommendations of the Mulla Jail Committee are:
1. The condition of prisons should be improved by making
adequate arrangements for
food, clothing, sanitation, ventilation etc.
2. The prison staff should be properly trained and organized into
different cadres. It would be advisable to constitute an All India Service
called the Indian
Prisons & correctional service of recruitment of prison officials.
3. After care and
rehabilitation, probation should constitute an integral part of prison service.
Unfortunately, probation law is
not being properly implemented in the
country.
4. The media and
public men should be allowed to visit prisons and allied correctional institutions
periodically so that public may have the first hand information about conditions inside
prisons and be
willing to co operate with prison officials in rehabilitation work.
5. Lodging of under trials in jail should be reduced to bare
minimum and they
should be kept separate from the
convicted prisoners. Since under trials constitute a sizeable portion of prison
population, their number can be reduced by speedy trials and liberalization of bail
provisions.
6. The Government should make an endeavour to provide
adequate resources and
funds for prison
reforms.[14]
Krishna Iyer Committee on Jail Reform:
In 1987, the
Government of India appointed the
Justice Krishna Iyer committee to undertake a study on the situation of women prisoners in India. This was the first committee
established for
to reformation of the
women prisoners' condition. It has recommended induction of more women in the police force in
view of their special role in tackling women and child offenders. The National Expert
Committee on Women
Prisoners headed by Justice V.R. Krishna Iyer submitted its report to the Government in
February 1988.
The committee among other things recommended the following
suggestions particularly towards reformation and rehabilitation of women prisoners.
1. In women's rehabilitation, employment training has a
pivotal role. Consequently, work in prison has to be given such potential
economic worth and
utility that all women in custody are willing to engage in work programmes.
2. Training of women prisoners in an area of great relevance
to correctional work and
to the process
of restoration of dignity of the
women offender.
3. Probation, Parole and other non-institutional modalities of corrective
treatment shall be widely used in case of women offenders.
Above said are the
important committee played a vital role in reforming the prison laws, this recommendation
consider for further
law's enactment. But not all the
reports but have been implemented but few important reports have been
implemented.
5.3.4 the
Prisoners Act, 1990
For the
purpose of prison reformation and
prison justice under this Act, the
following sections are relevant here to mention:
1. That all reference to prisons or the imprisonment or confinement shall
be construed as referring also to reformatory schools to detention therein.[15]
2. That it is the duty of
Government for the removal of any
prisoner detained under any order or sentence of any court, who is of unsound mind
to a lunatic asylum or any other place where he will be given proper treatment.[16]
3. That any court which is a High Court may in case in which it has
recommended to Government the
granting of a free pardon to any prisoner, permit him to be at liberty on his own
cognizance.[17]
The Government of India requested the State Governments and different union
territories to bring out change so as to make proper administration of changes.
Various states from time to time had adopted such recommendation in their
prison manuals. These recommendations can be summed up as follows:[18]
1. To revise
their prison manuals on the lines of the Model Prison Manual by the end of the
year.
2. To appoint
Review committees for the under trial prisoners at the district and state
levels.
3. To provide
legal aid to indigent prisoners and to appoint whole time or part time law
officers in prisons.
4. To enforce
existing provisions with respect to grant of bail and to liberalize bail system
after considering all its aspects.
5. To strictly
adhere to the provisions of the Code of Criminal Procedure, 1973, with regard
to the limitations on time for investigation and inquiry.
6. To ensure
that no child in conflict with law be sent to the prison for want of
specialized services under the Central Children Act, 1960.
7. To have at
least one Borstal School set up under the Borstal school act, 1929 for youthful
offenders in each state.
8. To create
separate facilities for the care, treatment and rehabilitation of women
offenders.
9. To arrange
for the treatment for lunatics in specialized institutions.
10. To provide
special camp accommodation under conditions of minimum security to political
agitators coming to prisons.
11. To prepare
a time bound programme for improvement in the living conditions of prisoners
with priority attention to sanitary facilities, water supply, electrification
and to send it to the ministry of home affair s for approval.
12. To develop
systematically the programmes of education, training and work in prisons.
13. To
strengthen the machinery for inspection, supervision and monitoring of prison
development programme and to ensure that the financial provision made for up
gradation of prison administration by the seventh finance commission are
properly utilized.
14. To organize
a systematic programme of prison personnel training on state and regional
level.
15. To abolish
the system of convict officers in a phased manner.
16. To mobilize
additional resources for modernization of prisons and development of
correctional services in prison.
17. To set up a
state board of visitors to visit prisons at regular periodicity and to report
on conditions prevailing in the prisons for consideration of the state
government.
18. To examine
and furnish views to government of India on proposal for setting up of the
National board of visitors.[19]
Moreover, at National conference on Human Rights of Prisoners on 14th Nov. 1995,
consensus was emerged to work out the
draft law on prisons.
A Core Group has prepared a Draft Bill namely, the Indian Prisons Act, 1995 which was
circulated to State Governments for
their consideration and
observation and
also to Ministry of law. But unfortunately Bill is still pending under consideration
of the Government
of India.
