Articles 14 and 21 of the Constitution of India relate to “persons” whereas Article 19 relates to “citizens”. There is an incorrect impression in the minds of many in deducing that there is no fundamental right in the hands of the prisoner.
Even where a person is convicted and imprisoned under sentence of court, he does not lose all the fundamental rights belonging to all persons under the Constitution expecting those which cannot possibly by enjoyed owing to the fact of incarceration such as the right to move freely (Art.19(1)(d)) or the right to practise a profession (Art.19(1)(g)). Hence, a prisoner can claim to exercise the following fundamental rights: (i) the freedom of expression, reading and writing except in so far as it is circumscribed by the fact of imprisonment.
It follows that no prior restraint can be imposed on the Press to publish the autobiography of a condemned prisoner, and nobody’s consent is required in so far as it is based on public records; (ii) the right under Art. 21, not to be deprived of his life or personal liberty except according to ‘procedure established by law’; and (iii) the right against discrimination under Art. 14. Hence, if a convict is given concessions from prison duties and obligations which are denied to another, the latter may complain of the violation of Art.14.
This means that any prison regulation or restriction or punishment which is sought to be imposed in addition to those resulting from the sentence of court, must still be tested by the procedural safeguards under Art. 21, which involve ‘fairness’ and ‘natural justice’. Thus: (a) if the prisoner is subjected to mental torture, psychic pressure or physical infliction beyond the legitimate limits of lawful imprisonment, the prison authorities shall have to justify their action by producing legal sanction or be liable for the excesses; (b) an arrested person or under-trial prisoner should not be subjected to handcuffing in the absence of justifying circumstances, e.g., where there is a reasonable apprehension of the prisoner fleeing justice.
If the police escorting the accused to or from court want to handcuff the accused, the police must report the extraordinary circumstances and seek the directions of the court; (c) a prisoner would be entitled to basic human rights such as recreation, immediate medical aid, freedom from forced labour without remuneration, freedom from extremes of heat and cold, freedom from indignities like compulsory nudity or other vulgarities over and above those restrictions which the prison administration is entitled to impose for maintaining internal order, discipline, prevention of escape and the like, which follow from the sentence of imprisonment. Prisoners have the right to the bare necessaries of life such as adequate nutrition, clothing, shelter over the head, facilities for reading, writing, interviews, with members of his family and friends, subject, of course, to prison regulations, if any.
Prisoners are entitled to Constitutional protection against human degradation so long as life lasts and are entitled to dignity even after their death as the Supreme Court has held that the jail authorities shall not keep the body of any condemned prisoner
suspended after the medical officer has declared him dead; (d) imprisonment would be unlawful the moment its lawful justification is withdrawn, e.g., after the convict is acquitted at the trial, or after an insane prisoner is declared sane.
When maximum period of custody is provided under Section 167(2), CrPC, any further detention of the accused beyond that period without filing a challan would amount to violation of Art.21; (e) a person cannot be kept in judicial custody for a period longer than what is prescribed by law and the State is liable to compensate a person who has been illegally detained and convicted based on a false case; (f) where the person in custody of the police is deprived of his life unlawfully, the defence of
sovereign immunity would not be available to the State.
The wrongdoser and the State would be accountable and responsible; and (g) condemned prisoners also have a right to dignity and execution of death sentence cannot be carried out in an arbitrary, hurried and secret manner without allowing the convicts to exhaust all legal remedies.
A convict has no right to dictate whether guards ought to be posted to prevent escape of prisoners as the same causes no interference with the personal liberty on their lawful pre-occupations. Denial of right to vote to prisoners or detenues is not violative of Art.21. Detention of a person accused of offences which are non-bailable, during the pendency of trial unless enlarged on bail, cannot be questioned as being violative of Art. 21, it being in accordance with law.
In its quest for fairness or reasonableness, the court would not (i) question the ‘penal policy’ behind a law, e.g., the provision for absolute liability with a statutory minimum sentence of imprisonment for the commission of anti-social offences, such as food adulteration, - irrespective of the gravity or otherwise of the offence in a particular case, or the provision for a maximum sentence, empowering the court to reduce it in particular cases, on proper grounds.
Nor can the provision for a minimum sentence of 14 years’ imprisonment for a murderer be held to be arbitrary or unreasonable; (ii) interfere with Prison Rules which classify ordinary and dangerous prisoners and those under sentence of death; (iii) interfere with obstruction of movement along the highway by the Police, in the interest of public order, provided such obstruction is reasonable; and (iv) question the fairness of a provision for summary dismissal of an appeal in a criminal case if certain safeguards against arbitrary action are observed.
Torture in custody flouts the basic rights of the citizens recognised by the Constitution and is an affront to human dignity. It is the sacrosanct duty of the police authorities to remember that a citizen while in custody is not denuded of his fundamental rights under Art. 21.
The restrictions imposed have the sanction of law by which his enjoyment of fundamental right is curtailed but his basic human rights are not crippled so that the police officers can treat him in an inhuman manner. On the contrary, they are under obligation to protect his human rights and prevent all forms of atrocities.
The accused has a right to fair investigation under Art. 21 of the Constitution, but a victim of a crime is equally entitled to a fair investigation. The State has a duty to enforce the human rights of a citizen by providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. Roping in criminal prosecution such persons who are otherwise not intended to be prosecuted or dealt with by the criminal court, would amount to the violation of fundamental right of personal liberty as enshrined under Art.21.
It would thus be seen that the framers of our Constitution did not deprive the prisoners of their fundamental rights in toto. Though diluted to some extent no doubt. But in essence, they survive. It is necessary for the larger section of our voters and citizens that the law in this regard is understood properly. A delicate balance has been reached and needs to be understood by public debate on the issue. In this exercise, we cannot stand in isolation. For, it concerns us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former president of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)