RIGHTS OF THE PRISON INMATES – DOES THE RIGHTS REALLY REACHES TO THE UNDER-TRIAL PRISONERS ?INTRODUCTION Let me begin with the words of Henry David Thoreau’s parting words, “Justice is sweet and musical, but injustice is harsh and discordant.” Let me remind you something, justice favours to the fortune. The transparency in prison system that we hear is not true, indeed. Do you think that every prisoner gains the benefit from the rights guaranteed to him ? To my knowledge, the rate of under-trial prisoners gradually increases every year. To the shock the rate of under-trial prisoners is higher than the convicted prisoners. Article 21of the Indian constitution guarantees “the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatments to any person whether he is a national or foreigner.” Between, Right to speedy trial is also in public interest or that it serves the social interest interest also, does not make it any less right of accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. Human right is a legal entitlement given to a person to do what he wish. The Legislature and the judiciary both have been largely influenced by such classification while guaranteeing or curtailing fundamental, human or civil rights of the prison inmates. The convicts who are proven guilty are not entitled to each and every fundamental right guaranteed to a person under our constitution. How is human right related to the right of the prison inmates ? Yes, human right has it impact over the prisoners welfare in the recent times but the true question lies in the fact effect of human right in the under-trial prisoners. The answer to all the questions is elucidated in this article. WHAT IS RIGHT ? Right in common term means ‘morally good, justified, or acceptable.’ Now, when relating to the sense of human right, Any legal entitlement that is guaranteed to an individual which is predominantly justified, acceptable and morally good which wouldn’t turn wrong or against if it is rightly managed. An entitlement to something, whether to concepts likejustice and due process, or to ownership of property orsome interest in property, real or personal. These rightsinclude various freedoms, protection against interferencewith enjoyment of life and property, civil rights enjoyed bycitizens such as voting and access to the courts, naturalrights accepted by civilized societies, human rights toprotect people throughout the world from terror, torture,barbaric practices and deprivation of civil rights and profitfrom their labor, and such American constitutionalguarantees as the right to freedoms of speech, press,religion, assembly and petition. In an abstract sense, justice, ethical correctness, orharmony with the rules of law or the princi-ples of morals.In a concrete legal sense, a power, privilege, demand, orclaim possessed by a particular person by virtue of law.Each legal right that an individual possesses relates to acorresponding legal duty imposed on another. IS HUMAN RIGHT AN OPTION FOR THE PRISON INMATES ? Is it ? I don’t think think human right is optional for the prison inmates. Prison inmates aren’t some one or aliens. A person doesn’t lose his human rights merely because he has committed some offences as he also has some dignity which must be protected. However, at the same time conferring conjugal Rights to the prisoners within the prison requires re-consideration of a larger bench of the High Court or the Supreme Court as far as the concept of human rights is involved. By giving more weightage to the prisoners, the balance of criminal justice system may get disturbed and a situation may arise when one day prison would become resting centres or the victims may stop reporting the matter to the police and start taking law in their own hands to punish the guilty. RIGHTS OF THE PRISON INMATESPrisoners are also entitled to rights to some extent as a normal human being when they are behind the prison. These rights are provided under the constitution of a India, the Prison Act, 1894 etc. Prisoners are persons and have some rights and do not lose their basic constitutional rights. In the case of State of A.P v. Challa Ramakrishna Reddy. It was held that a prisoner is entitled to all his fundamental rights unless his liberty has been constitutionally curtailed. The Supreme Court has emphasised that a prisoner, whether a convict, under-trial or detenue, doesn’t cease to be a human being and, while logged in jail, he enjoys all his fundamental rights guaranteed by the constitution of India including the right to life guaranteed by the constitution. Even a person is convicted and deprived of his liberty in accordance with the procedure established by law; a prisoner still retains the residue of constitutional rights. CONSTITUTIONAL RIGHTS OF THE PRISON INMATESConstitution of India does not expressly provide the provisions related to the prisoners’ rights but in the case of T.V. Vaitheeswaran v. State of Tamil Nadu, It was held that the Articles 14, 19 and 21 are available to the prisoners as well as freemen. Prison walls do not keep out fundamental rights.Article 14 of the Constitution of India says that the State shall not deny to any person equality before law or the equal protection of laws within the territory of India. Thus Article 14 contemplated that like should be treated alike, and also provided the concept of reasonable classification. This article is very useful guide and basis for the prison authorities to determine various categories of prisoners and their classifications with the object of reformation. Article 19 of the Constitution of India guarantees six freedoms to the all citizens of India. Among these freedoms certain freedoms cannot enjoyed by the prisoners because of the very nature of these freedoms. But the “freedom of speech and expression” and “freedom to become member of an association” Article 21 of the Constitution of India says that No person shall be deprived of his life or personal liberty except according to procedure established by law. This Article stipulates two concepts i.e., right to life and principle of liberty. By Article 21 of the Indian Constitution it is clear that it is available not only for free people but also to those people behind the prison. Following are the rights of prisoners which are implicitly provided under the Article 21 of the Constitution of India:-• Right of inmates of protective homes, • Right to free legal aid, • Right to speedy trial, • Right against cruel and unusual punishment, • Right to fair trial,• Right against custodial violence and death in police lock-ups or encounters,• Right to live with human dignity,Apart from these rights of prisoners Constitution of India also provides following rights to the prisoners:-• Right to meet friends and consult lawyer,• Rights against solitary confinement, handcuffing & bar fetters and protection from torture,• Right to reasonable wages in prison. PRISONER’S RIGHTS UNDER THE PRISONS ACT, 1894Prisons Act, of 1894 is the first legislation regarding prison regulation in India. This Act mainly focus on reformation of prisoners in connection with the rights of prisoners. Following Sections of the Prisons Act, 1894 are related with the reformation of prisoners:-• Accommodation and sanitary conditions for prisoners, • Provision for the shelter and safe custody of the excess number of prisoners who cannot be safely kept in any prison, • Provisions relating to the examination of prisoners by qualified Medical Officer, • Provisions relating to separation of prisoners, containing female and male prisoners, civil and criminal prisoners and convicted and undertrial prisoners, • Provisions relating to treatment of undertrials, civil prisoners, parole and temporary release of prisoners. In the year of 2016 the Parliament has been passed the Prisons (Amendment) Bill, 2016 to amend the Prisons Act, 1894 with a view to provide protection and welfare of the prisoners.WHO ARE UNDER-TRIAL PRISONERS ?The term ‘Under-trial’ denotes an unconvicted prisoner i.e. one who has been detained in prison during the period of investigation, inquiry or trial for the offence s/he is accused to have committed. In many cases their “stay in prison has exceeded the maximum sentence for the crime” which they had committed. Most of them are convicted for petty offences.According to The ‘Prison Statistics India 2015’ report, which was released by the National Crime Records Bureau (NCRB) in October 2016, Sixty-seven per cent (two-thirds)of the people in Indian jails are undertrials which amounts to over 200,000 under-trial prisoners. The National Crime Records Bureau of the Government of India has reported that thousands of under-trials had been incarcerated for a period of five years or more. WHAT IS THE REASON FOR SO MANY UNDER-TRIALS?1. Indiscriminate arrests: The power of the police to arrest people is very wide and they arrest people even when they cooperate with the investigation and are not likely to evade trial. This results in unnecessary detentions. As the Law Commission in its 268th report remarked that Over 60 per cent of arrests are unnecessary.2. Failure to pay Bail Bond/Surety: Right to bail is denied even in genuine cases due to inability of prisoners to pay the bail amount as many of them are poor3. Slow investigation by police: Investigation by police is slow due to shortage of police personnel and no separation between investigative and law & order functions.4. Slow trials: The Right to Speedy Trial, as recognized by the Supreme Court in Khatoon vs. Home Secretary, Bihar is violated due to protracted delays. This delay is due to various reasons such as:? Grossly inadequate number of judges and prosecutors.? “Remands being extended mechanically” by the presiding judge due to lack of time and patience5. Lack of use of provisions: Even though the provisions to avoid unnecessary detention of prisoners have been in existence for years, they are not implemented because of the following reasons:? Most prisoners are not only unaware of their right to seek release but also too poor to furnish surety.? Lack of sympathy by the administration6. Failure of Legal aid schemes: Infective implementation of legal aid schemes due to shortage of lawyers. This violates the Supreme Court judgment which held, legal aid to a poor is a constitutional mandate not only by virtue of Article 39A but also Articles 14, 19, 21 which cannot be denied by the government.7. Lack of coordination between the Centre, Judiciary & State Governments in solving the problems.UNDERTRIALS AND THEIR RELEASE: POSSIBLE OBSTRUCTIONS IN EFFECTIVE IMPLEMENTATION OF THE EXISTING PROVISIONS Even though the provisions to avoid unnecessary detention of prisoners have been in existence for years, they are not implemented, resulting in a large number of under-trial population within prisons. The reasons for non-implementation are known. Most prisoners who are unable to use the provisions under section 167 or 437(6) are not only unaware of their right to seek release but also too poor to furnish surety. It is imperative that the legislature amends these sections on the lines of section 436 so that poor people may be released on furnishing personal bonds in such cases where either the police have not been able to make out any case against them or the trial is not concluded within the stipulated time. In the absence of a legislative change, the judiciary must take a proactive role and release such people on personal bonds. In so far as the non-implementation of the liberalised provisions under section 436 or the bail provisions under section 436 A is concerned, the primary reason is the lack of awareness amongst the under-trial prisoners. The law does not mandate the State Legal Services Authority, jail superintendent or the trial court to inform the accused about this law. Almost 3 years have passed since section 436A was introduced, but it is yet to have the impact that it sought to achieve. At the time of enactment, news reports stated that the introduction of this provision would impact as many as 50,000 under-trial prisoners across India. However, there has been no substantial change in the number of under-trial prisoners who languish in prisons bearing the physical and mental costs for an offence they might not have even committed. Although some High Courts have issued directions for the release of under-trial prisoners under these sections, substantive results are yet to be seen. A decision of the Patna High Court is instrumental in this regard wherein the Court suo moto initiated a PIL for the efficient and effective implementation of section 436A Cr.P.C. The Court explained the role of the Jail Superintendent, the Inspector General (Prisons) and the legal services authorities for the implementation of this section. In its directives, the Court entrusted the Jail Superintendent with the primary duty to inform the under-trial prisoners of the benefits of section 436A Cr.P.C. The Inspector General (Prisons) was attributed the role as a ‘Monitor’ for the whole process. An effective implementation of the various provisions and amendments of the Cr.P.C. is vital to ensure a just criminal justice system which assures the presumption of innocence and the right to liberty to an accused, and prevents her/him from suffering the deprivations that incarceration offers.ISSUES OF CONCERN”A very large number of under–trial prisoners suffer prolonged incarceration even in petty criminal matters merely for the reason that they are not in a position, even in bailable offences, to furnish bail bonds and get released on bail.” – Ex- Chief Justice Of India Adharsh Sein Anand• 80% prisoners are under trials• Even though bail is granted, prisoners are not released.• Lack or insufficient provision of medical aid to prisoners• Callous and insensitive attitude of jail authorities• Punishment carried out by jail authorities not coherent with punishment given by court.• Harsh mental and physical torture• Lack of proper legal aid• High amount of surety ordered by courts which indigent prisoners can’t pay• Rejection of surety bonds due to lack of money or verification of addresses, as indigent prisoners don’t have houses.• Corruption and other malpractices.CONCLUSION The prison is meant to be for reformatory purpose. but the complete purpose fails once the supposed transformation is delayed for quite decades. With those that underneath trials, their reformation is extended to such long amount that their reformation so is extended to acute medical problems and these prisoners fully unfit to even survive as the traditional kinsmen.The custody and security of prisons and prisoners within it are the fundamental duties and responsibilities of every member of the prison staff. A person doesn’t lose his human rights merely because he has committed some offence as he also has some dignity which must be protected. However, at the same time conferring conjugal rights to the prisoners within the jail premises requires re- consideration of a larger bench of the High court or the Supreme Court as far as 5he concept of human rights is involved.