Primitive societies had no conception of human rights. With the growth of human civilisation the idea of human rights in the form of some basic natural rights was propounded by philosophers like Thomas Hobbes, John lock and JJ Rousseau. They propounded the idea that man by birth is endowed with certain inalienable rights, of which rights to life; liberty and property are of paramount consideration.
The United Nations was formed in the middle of the 19th century and its preamble to the Universal Declaration of Human Rights emphatically said, “It is essential if man is not to be compelled to have recourse, as a last resort to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” The founding fathers of India’s Constitution were deeply inspired by the UN Chater-1948 and made provisions for the fundamental rights of the citizens in Part-III of the Constitution, and Article-21 is the lifeblood of the Constitution. It says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
In this backdrop, the general perception is that once a person is taken into custody or is convicted in both the cases, he is deprived of enjoying fundamental rights. This is a misconception and contrary to legal norms because a person in custody under preventative detention laws like the National Security Act also has the same fundamental right as other citizens. Therefore, the prisoner legally not being considered as nonperson is as much a citizen as others and entitled to remedies against violation of human rights. The Supreme Court has laid down three broad principles regarding imprisonment and custody. First, a person in prison does not become a nonperson. Second, a person in prison is entitled to all human rights within the limitations of imprisonment. lastly, there is no justification for aggravating the suffering already inherent in the process of incarceration.
Degrading human treatment and cruelty shown to a person in custody are negation of human rights. The apex court has observed that an under-trial or convicted prisoner cannot be subjected to physical or mental restraint (a) which is not warranted by the punishment awarded by the court, or (b) which is in excess of the requirements of prisoner’s discipline, or (c) which constitutes human degradation.
Basic human rights are rights to self-determination and freedom of life, liberty, thought, speech and security of a citizen irrespective of caste, creed, colour and place of birth, sex, language, national or social origin. In our Constitution, the writ jurisdiction is conferred on High Courts and Supreme Court in Articles 32 and 226, respectively, which act as safety valves for protection of human rights. It is gratifying to note Article-10 (1) of the International Covenant on civil and political rights categorically says, “All persons deprived of their liberty shall be treated with humanity and respect.” Basing on our Constitutional provisions and UN Standard Guidelines for the treatment of prisoners, it is the duty of jail officers to safeguard human rights of jail inmates.
In the era of human rights consciousness causing trauma and violence on a prisoner is the negation of all cannons of human right. The SC in Hossainara Khatun’s case while protecting the right of a citizen under Article-21, which is also available to an under-trial prisoner, emphasised release of the UTP on bail on easy terms, i.e., by execution of personal bond without sureties and without any monetary obligation. The court also held that a speedy trial is part of the fundamental right, and unless there is a procedure which ensures speedy trial, it would amount to depriving the prisoner of his right of personal liberty.
In the Francis Coralie Mullin’s case, the SC expanded the ambit of ‘right to life’ enshrined in Article-21. The court held that the ‘right to life’ is not confined merely to the right to physical existence but also included within its broad matrix of the right to the use of every faculty or limb through which life is enjoyed as well as the right to live with basic human dignity. If any prison procedure, regulating the right to have interviews with the members of the family, friends and lawyer is arbitrary or unreasonable, it would be liable to be struck down as violation of Articles 14 and 21. In the case of Sunil Batra v. Delhi Administration, the court held, “Prisons are built with stones of law and so it behaves the court to insist that in the eye of law, prisoners are persons, not animals and punish the deviant guardians of the prison system where they go berserk and defile the dignity of the human inmates.” The court said, “The Prison Houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials dressed in a little brief authority, when the Part-III is invoked by a convict but when a prisoner is traumatised, the Constitution suffers a shock.”
The SC, over-ruling its earlier decision in the case of AK Gopalan v. State of Madras in a case of Preventive Detention, widened the scope and ambit of the word “personal liberty” embodied in Article-21 in the passport impounding case of Maneka Gandhi v. Union of India. Article-21 thus has immerged as the Indian version of the America concept of ‘due process of law’ and has become the source of many substantive rights and procedural safeguards for the people. The deprivation of liberty shall be only according to ‘procedure establish by law’ and the procedure has to be just, fair and reasonable.
It is gratifying that in the famous PIl of Sheela Barse v. Union of India, the SC stretched its wide arms for protection of the children below 18 years who were detained in jails. That is why all the statutes dealing with children provide that a child shall not be kept in jail and it is elementary that jail is hardly a place where a child should be kept. There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society.
Concluding, it is significant to mention that the precious Constitutional rights under Article 22 read with Article 21 thus cannot be denied to a person who is arrested or is in custody. He is also entitled to other legal remedies available under the provisions of Sections 41 to 60 (A) of the code of criminal procedure under the criminal justice system. The apex court, in its anxiety to protect fundamental rights of an arrested person, has prescribed certain legislative safeguards which have touched the spinal cord of human rights jurisprudence in the landmark case of DK Basu v. State of West Bengal in which the entire gamut of criminal law relating to arrest of a person has undergone a sea change. The court held, “The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials, detunes and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. Custodial violence, including torture and death in the lockups strikes a blow at the rule of law which demands that the power of the executive should not only be derived from law but also that the same should be limited by law. Transparency of action and accountability perhaps are two possible safeguards which this court must insist upon”.
(The writer is former Professor of law, lal Bahadur Shastri National Academy of Administration, Mussoorie and former Special Judge CBI,Bhubaneswar)