Legal Rights of Inmates Who is an inmate ?• Definition as per Wharton’s Law Lexicon – An inmate is a person confined in a prison, hospital or other institution.• Inmates are of two types –1. Inmates of the police lock-ups – They are of two types – – Those who are in police custody remand, – Those who are in the custody of the police for preventive detention u/sec 151 of Cr.P.C. Cont..
Legal Rights of Inmates2. Inmates of jails or prisons – They are of four – Those who are in judicial custody remand, – The under-trials, – The convicts, and – The detenues undergoing preventive detention under various enactments such as MPDA, COFEPOSA, etc.
Legal Rights of Inmates• Legal rights of the inmates –• In India, the inmates are considered to be the basic indicator of Human Rights violations. The allegedly insufficient accommodation, indiscriminate handling of offenders, unhygienic conditions, substandard water supply and insufficient food are some of the general contentions against the executive machinery in this respect. Cont..
Legal Rights of Inmates• Globally, the change in the trend of treating inmates as out-casts to treating them as human beings set in only in the last forty years with the introduction of the Universal Declaration of Human Rights. But in India, the change came only in the late Seventies, through the judgements of an activist Supreme Court.• With a slight difference, the legal rights of the inmates in the aforesaid two categories are the same.
Legal Rights of Inmates• Legal provisions – Over a period of time post independence, the Indian legislature has made enough provisions for safeguarding the rights of the inmates by way of introducing the same in Chapter III of the Indian Constitution which deals with the Fundamental Rights of the Citizens and also through the Code of Criminal Procedure, 1973. Besides these, the Higher Judiciary, with its dynamic approach, has further extended these safeguards by laying down invaluable precedents in the judgements of various landmark cases.
Legal Rights of Inmates• The Constitution of India –• Although the Constitution directly deals with the protection against arrest and detention in certain cases through the provisions put forth in Art 22, there is no specific provision in the Constitution which deals with legal rights of the inmates.• Hence the Supreme Court has adopted an activist role and interpreted Arts 14 (Equality before law), Cont..
Legal Rights of Inmates• Arts 19 ( Protection of certain rights regarding freedom of speech, etc.) and• Arts 21 ( Protection of life and personal liberty) in Part III along with• Arts 38 (State to secure social order for the promotion of the welfare of the people),• Arts 39 (Certain principle of policy to be followed by State), and• Arts 39A (Equal justice and free legal aid) in Part IV to spell out the various fundamental rights available to the inmates.
Legal Rights of Inmates• Accordingly, under Art 21, the various rights of the inmates such as -• getting free legal aid,• sending uncensored letters to the family members,• to read books along with their right against torture by the authorities,• right to get compensation for violation of the same, etc. have been recognized and further enforced by the Higher Judiciary in a number of landmark cases. We would see these cases in the slides to come.
Legal Rights of Inmates• Article 22 – Protection against arrest and detention in certain cases —• No detention in custody without being informed of the grounds for arrest.• No denial of the right to consult and to be defended by a legal practitioner of his choice.• Production before the nearest magistrate within 24 hours of arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no detention in custody beyond the said period without the authority of a magistrate. Cont..
Legal Rights of Inmates• These rules do not apply to i) an enemy alien; or ii) a person who is arrested or detained under any law providing for preventive detention.• Even in cases of preventive detention – a detenue shall be communicated the grounds of his detention and he shall be afforded the earliest opportunity of making a representation against the order.
Legal Rights of Inmates• Francis Coralie v. Administrator Delhi – In this case it was held that "there is implicit in Art. 21 the rights to protection against torture and human degrading treatment". In other words a convicted man is not reduced from a person to a non-person so as to be subject to the whim of the prison administration.
Legal Rights of InmatesSunil Batra v. Delhi Administration – The trend is clearly reflected in this case too where it was held that keeping a man under sentence of death in solitary confinement is violative of Aft. 21 and that the bar-fetters should not be put for an unusually long period without justification. In this case, the SC laid down five principles. - Cont..
Legal Rights of Inmates– First, under-trial prisoners should be separated from convicted prisoners.– Secondly, hard labour is not harsh labour. Hard labour under S. 53 of the Indian Penal Code must be given a humane meaning.– Thirdly, young prisoners should not be exposed to sexually frustrated adult prisoners.– Fourthly, the visits of the family members of the prisoner to him should be fairly increased.– And lastly, confinement in irons should be allowed only where safe custody is impossible.
Legal Rights of Inmates• Hussainara Khatoon v. State of Bihar – it was held that where under-trial prisoners have been in jail for periods longer than the maximum term to which they could have been sentenced if convicted, then their detention in jail is unjustified and violative of Aft. 21. Developing this, it further held that the right to speedy trial is an integral and essential part of the fundamental right to life and liberty enshrined in Art.21 and the courts have wide powers to direct the state to take proper measures like setting up new courts, appointing more judges, etc.
Legal Rights of Inmates D.K. Basu Vs State of West Bengal.• In this case, the Hon’ble Supreme Court has laid down specific guidelines required to be followed by police officers while making arrests. Most of the rights as enunciated in Art 22 of the Constitution and the procedure laid down in sections 41 to 60 of CrPC, as discussed in the earlier have been reiterated in these guidelines. The gist of these guidelines/ principles are as follows -: Cont..
Legal Rights of Inmates• Police officers to carry visible and clear identification and name tags with their designations during arrests, interrogation, etc.• The particulars of all such police personnel to be recorded in a register.• Preparation of a memo of arrest which should be attested by at least one witness and to be counter signed by the arrestee. The memo shall contain the time and date of arrest. Cont..
Legal Rights of Inmates• Information of the arrest & detention to be given to at least one friend or relative of the arrestee as soon as practicable.• The person arrested must be made aware of his right to have someone informed of his arrest or detention.• The above facts should be entered into the diary. Cont..
Legal Rights of Inmates• Medical examination of the arrestee after his arrest to be conducted and the ‘Inspection Memo’ signed both by the arrestee and the police officer effecting the arrest to be prepared and its copy provided to the arrestee. The further medical examination by a trained doctor every 48 hours during his detention in custody. Cont..
Legal Rights of Inmates• Copies of all the documents including the memo of arrest should be sent to the Magistrate for his record.• The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.• A police control room to be provided at all district and State headquarters and information of the arrest to be displayed outside the same. Cont..
Legal Rights of Inmates •The Criminal Procedure Code, 1973• The newly introduced provisions vide sections 41(C) & 41 (D) – Establishment of Control Rooms at State and District level. These Control Rooms to display the names and addresses of all the inmates in PC along with the names and designations of the police officers who made the arrests. Control Rooms also to maintain database of the same. – 41 (C)
Legal Rights of Inmates •The Criminal Procedure Code, 1973• Right of the inmate in PC to meet an advocate of his choice during interrogation though not throughout the interrogation. – 41 (D)• Sec 54 – Examination of the arrested person by medical officer. The examination of the female inmate to be done under the supervision of a female medical officer.
Legal Rights of Inmates •The Criminal Procedure Code, 1973• Sec 55A - duty of the person having the custody of an accused to take reasonable care of the his health and safety.• sec 57 – Person arrested not to be detained for more than 24 hours without the order of the magistrate.• sec 58 – Police to report apprehensions of the persons without warrant, whether such persons have been admitted to bail or not, to the District Magistrate.
Legal Rights of Inmates It has been well established that convicts are not bymere reason of the conviction denuded of all the fundamentalrights which they otherwise possess. For example a man ofprofession who is convicted would stand stripped of his rightto hold consultations while serving out his sentence; but theConstitution guarantees other freedoms like the right toacquire, hold and dispose of property for the exercise ofwhich incarceration can be no impediment. Likewise even aconvict is entitled to the precious right guaranteed by Art. 21that he shall not be deprived of his life or personal libertyexcept according to the procedure established by law.
Legal Rights of Inmates• Sections 73 and 74 of the Indian Penal Code leave no room for doubt that solitary confinement is by itself a substantive punishment which can be imposed by a court of law. It cannot be left to the whim and caprice of prison authorities. The limit of solitary confinement that can be imposed under Court‘s order is strictly prescribed by the Penal Code.
Legal Rights of Inmates• Jail custody is something different from custody of a convict suffering simple or rigorous imprisonment. The purpose behind enacting s. 366(2) of the Code of Criminal Procedure is to make the prisoner available when the sentence is required to be executed. Unless special circumstances exist, even in cases where a person is kept in a cell apart from other prisoners with day and night watch, he must be within the sight an sound of other prisoners and be able to take food in their company.
Legal Rights of Inmates Absent provision for independent review of preventiveand punitive A action, for discipline or security, such actionshall be invalid as arbitrary and unfair and unreasonable. Theprison officials will then be liable civilly and criminally for hurt tothe person of the prisoners. The State will urgently set up orstrengthen the necessary infra structure and process in thisbehalf it already exists in embryo in the Act. Legal aid shall be given to prisoners to seek justice fromprison authorities, and, if need be, to challenge the decision inCourt in cases where they are too poor to secure on their own.
Legal Rights of Inmates If lawyer’s services are not given, the decisional processbecomes unfair and unreasonable, especially because the ruleof law perishes for a disabled prisoner if counsel isunapproachable and beyond purchase. By and large, prisoners are poor, lacking legal literacy,under the trembling control of the jailor, at his mercy as it were,and unable to meet relation or friends to take legal action.Where a remedy is all but dead the right lives only in print.Article 19 will be violated in such a case as the process will beunreasonable. Article 21 will be infringed since the procedureis unfair and is arbitrary.