Explained: Rights of an Arrested Person

Reading time : 10 minutes

Introduction

As we are familiar with that, the lodging of the First Information Report (FIR) by the police, the police have the right to arrest that person against FIR filed, and there is no definite period to arrest that person. However, the arrest should be the last option for the police and “prohibit exceptional cases where the arrest of the accused is mandatory, or he needs to be interrogated.” The word ‘Arrest’ means the power by a legal authority to deprive a person of his freedom or detain him in legal custody. This word is appropriately defined under the code of criminal procedure, 1973 of India. Although, according to the third National Police Commission report, it is mentioned that ‘arrests by the police in India are one of the major sources of corruption in the police[1].’ This leads to irrational and indiscriminate arrests which, causes a gross violation of human rights. “Personal liberty is a valuable fundamental right, and it should be diminished only when it becomes mandatory.”

Right to know grounds of the Arrest

Everyone is entitled to know the grounds of his arrest for which reason he has been arrested by the police. Indian legal system provides some rights by which we could know our grounds of arrest.

  • According to Article 22[2] clause (1) of the Indian Constitution, no police officer can arrest any individual without informing the accused of the reason/ ground for his detainment/ arrest.
  • According to Section 50[3] clause (1) of the Code of Criminal Procedure, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest. To arrest any person without a warrant, the offense must be cognizable. The person arrested by the police will be informed why he has been arrested. In non-cognizable offenses, the police must have a warrant to arrest any person.
  • According to Section 50 Clause (A) of the Code of Criminal Procedure, it is mandatory for a person or the police officer, who arrests a person, they have to tell that person’s arrest information to that person’s relatives or friends.

Right to Silence

The right to silence is a legal doctrine that ensures that any person who has been arrested has the right to refuse question answers by law enforcement officers or court officials. Article 20 clause (2) It repetition that no person, whether he is an accused or not, cannot be compelled to be a witness against himself. This act of exposing oneself is the principle of self-incrimination. This principle came out in the case of Nardini Satpathy v P.L. Dani, where the court observed that ” No person can compel any other person to present any statement or to answer any question. because the accused person has the right to put down silent during his entire interrogation.”

Right to be taken to Magistrate without any delay

Appearing before the Magistrate without delay means that any person who has been arrested by police. That person would appear before the Magistrate in 24 hours without any delay by the police. If the police could not appear that person before the magistrate than, it will be considering whole detention is unlawful. Therefore, articles of law have been provided for this right by the Government of India for us.

  • According to Article 22[4] clause (2) of the Indian Constitution, every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest, and no such person shall be detained in custody beyond the said period without the authority of a magistrate. 
  • According to Section 76[5] of the Code of Criminal procedure, the police officer or other person executing a warrant of arrest shall without unnecessary delay brings the person arrested before the Court before which he is required by law to produce such person: Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
  • According to Section 56[6] of the Code of Criminal Procedure, a police officer can arrest without a warrant, without any unnecessary delay, including that arrested person to bail, take or send before the magistrate having jurisdiction in the case, and before the officer in charge of a police station.   
  • According to Section 57[7] of the Code of Criminal Procedure, no police officer shall detain any person arrested in custody without a warrant for an unnecessary case, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours.

Information regarding the right to be released on bail

Bail information is the right of the arrested person. Therefore, it is likely that the crime committed by him maybe a bailable offense, for example, small theft, accident, etc. It is the duty of the police to tell the right to bail to an arrested person.

According to Section 50[8] clause (2) of the Code of Criminal Procedure, when a police officer arrests any person without a warrant other than an accused person, the police officer shall inform the arrested person that he is entitled to be released on bail because it is his duty and that the arrested person may arrange for sureties on his behalf.

Right to Legal Aid

Right to Legal Aid is entitled to every person who is accused or has been arrested by police. During an interrogation of police, a person has the right to legal aid, may consult with a lawyer, or may defend his right by a lawyer of his choice.

According to Article 22[9] Clause (1) of the Indian Constitution, Any accused and arrested person by the police. He can consult with a lawyer during police interrogation, and he can defending by a lawyer of his choice.

According to Section 303[10] of the Code of Criminal Procedure, any accused of a criminal crime before the criminal court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.

Right to Free Legal Aid

Right to Free Legal Aid is entitled to every person who is accused or has been arrested by police but, he is a poor person, he has no money to appoint an advocate and, he has no relatives then during an interrogation of police, he has right to free legal aid, the court shall assign the advocate for him on the expense of the State, who will defend that poor person’s right in court as well as in police interrogation by police.

According to Section 303[11] of the Code of Criminal Procedure:

  1. Where in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State.
  2. The High Court may, with the previous approval of the State Government, provide rules-

(a) the mode of selecting pleaders for defense under sub-section (2);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fee payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1).

  •  The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before the Courts of Session.

Right to Fair Trial

The legal provision regarding the Right to fair and trial could be cited from the Indian Constitution eke many Supreme Court and High Court judgments because no particular law has been prescribed in this regard. Whenever the court decides on any matter, they should observe the principle of a fair trial. In which prosecution and defense are entitled to the right to a fair and just trial.

Article 14[12] of the Indian Constitution states that ‘every individual is equal before the law.’ This signifies that all the parties will be treated equally in legal disputes. To give justice for both parties, the court must consider the Natural Justice principle.

No handcuffing without reasonable grounds

Under Section 49[13] of CrPC, the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. This signifies that a person has already surrendered in police custody and does not want to run away from custody, so there is no need for additional handcuffs and shackles.[14]

Case Analysis        

In the case of D.K. Basu v West Bengal,[15] the court focuses ‘the police officer should do the action in a certain way in the rights of the arrested person.’ The court observes that if police officers are unable to perform their duties properly, He will be held accountable for contempt of court as well as departmental inquiry. Such a matter can be initiated in any High Court which has jurisdiction over the said dispute.

It is still common even today after several attempts to protect an accused person from unnecessary torture, inhuman conduct, the number of deaths in custody, and police atrocities. Therefore, to overcome this, the Supreme Court of India has circulated nine important guidelines to conservancy an accused person, including amendments to several sections of the CRPC.

In the case of Yoginder Singh v State of Punjab,[16] the court observed that for the execution of Article 21 as well as Article 22(1), it is mandatory that: –

  • The arrested person has the right to inform his friend, relatives, or any other person who has an interest in his arrest.
  • The person arrested should be informed of all his rights after his detention by the police officials.
  • The entry of full details of the arrest must be written in the diary, along with the name of the person to be informed about the arrest.

In the case of Prem Shukla v. Delhi Administration,[17] the court observed that ‘the arrested person/prisoner has the right to be not handcuffed in shackles unless some exceptional circumstances arise Should not be imposed.’

Conclusion

India faces enormous hard of illegal arrest, even deaths in police custody, mainly due to illegal arrests. These problems underlay the essence of Article (21) of the Indian Constitution and also fundamental rights. All fundamental rights come under the Universal Declaration of Human Rights. In the case of Basu vs. West Bengal, the Supreme Court of India has issued the guidelines which are not being Executed properly, and therefore, the provisions and guidelines issued need to be properly Executed and time to execute. Which can certainty give better results. The conclusion is that it would reduce the number of illegal arrests and result in fewer custodial deaths.

Author:  Aditya Kohli, from Dharmashastra National Law University, Jabalpur, M.P.

Editor: Kanishka Vaish, Editor, LexLife India.


[1] Third report of National Police Commission.

[2] Protection against arrest and detention in certain cases under Fundamental Rights, Part III, Article 22 of the Indian Constitution.

[3] The person arrested to be informed of the grounds of arrest, under the Code of Criminal Procedure.

[4] Supra Upper (2)

[5] Person arrested to be brought before Court without delay under Section 76 of the CrPC.

[6] Person arrested to be taken before Magistrate or officer in charge of police station under Section 56 of CrPC.

[7] Person arrested not to be detained more than twenty-four hours under Section 57 of CrPC.

[8] Person arrested to be informed of right to bail under 50 clauses (2) of CrPC.

[9] Supra upper (2)

[10] Right of person against whom proceedings are instituted to be defended under section 303 of CrPC.

[11] Legal aid to accused at State expense in certain cases under Section 303 of CrPC.

[12] Equality before law under Fundamental Rights, Part III, Article 14 of the Indian Constitution.

[13] No unnecessary restraint under Section 49 of CrPC.

[14] Yoginder Singh v State of Punjab,

[15] D.K. Basu v West Bengal, AIR 1997SC 610

[16] Supra upper, (14)

[17] Prem Shukla v. Delhi Administration 1980 AIR 1535, 1980 SCR (3) 855

Free legal aid in India

Reading time: 8-10 minutes.

Constitution of every democratic country is enshrined with the concept of ‘audi alter partem’, which means that both the parties in a case should be heard before arriving to a conclusion. However, sometimes a party is unable to procure a legal representative to represent his/her case in the Court of law which is why a provision of Legal aid was introduced in order to assist the helpless.

Legal Aid essentially refers to the process of providing free legal services to those sections of society which are not self sustainable in obtaining services of an advocate in order to conduct a case in front of court, hence denying them justice. The importance of this concept can be understood by the fact that even  Magna Carta acknowledged this, where it was written that,“ to no one will we sell, to no one will we deny or delay right or justice.”

This concept is essential to ensure that the rich do not get an upper hand in the court of Law due to their financial advantage but are on the same terms as any other person. Various Jurists and Judges like Justice P.N. Bhagwati have advocated for the proper implementation of proper legal aid cells by the government to make the machine of justice easily accessible to everyone

Evolution of Legal Service Authority Act, 1987

In India, the need to have legal aid was recognized before Independence and various committees have been formed since to shape the legal aid machinery of the Legal Service Authority Act, 1987. Here are the reports from some of the committees formed to look over at the Legal Aid Programs in the Country:

14th Law Commission Report (1958)

This report focused on the reforms in judicial administration. The report emphasized on the importance of Free Legal Aid and suggested the setting up of Legal Aid clinics in all High Court Bars.

P N Bhagwati Committee Report (1971)

The Commission stated that the imbalance between the rich and the poor in administration of the justice can be uprooted by building up and creating viable effective system of the legal aid program.


Krishna Iyer Committee Report (1972)

This was another committee headed by Justice Iyer which emphasized on characterizing the people who need Legal Aid and also on spreading a system through which the Legal Aid reaches public instead of Public reaching out for Legal Aid.

After this, a combined committee of Justice Bhagwati and Justice Iyer, called the Judicature Committee, was constituted in the year 1977.

CILAS (1980)

The Central Government in 1980 formed another committee known as the Committee for Implementing Legal Aid Schemes (CILAS), under the chairmanship of Justice Bhagwati. The main motive of this committee was to monitor the implementation of Legal Aid programs and to bring all the ongoing Legal Aid programmes of the country under a single umbrella.

In the year 1987, Union Government enacted the Legal Service Authority Act, 1987 and gave the Legal Aid programmes a statutory recognition.

Why is free legal aid necessary?

There are various reasons why legal aid is needed in India:

Maintaining Rule of Law: Rule of Law and equality before law are the cornerstones of democracy. It is necessary to maintain order among chaos by keeping law above every individual. However, there would be no Rule of law unless the common man, irrespective of the financial capacity, is able to assert and vindicate the rights given to him by law, which is why the provision of Legal aid is necessary to maintain equality before law.

Following audi alter partem: In a free and fair trial, both the parties in a case are heard in order to decide the guilty in a case. Legal aid makes sure that every person in the Country gets a Legal representative to voice his/her case in the Court.

Removing the inequality: Inequalities are there in almost all the aspects of the society whether financial, social or cultural. However to remove this barrier in the legal aspect, provision of free legal aid is necessary so that every person belonging to any caste, religion or place can get justice.

Ethical duty: It is the ethical duty of a lawyer to make sure that Money is not a barrier in the way of perceiving Justice.

Legal aid mechanism in India

Any person who wants to seek Legal aid can address the complain in the main office of Legal Service authority either in writing, orally or through e-mail, along with an application to show that he/she is eligible to attain the same. There has been fixation of criteria on which people can avail the benefits of Legal Aid.

Section 12 of the Legal Service Act provides for the criteria under which the people can get free legal aid. The following people are in that category:

  • a member of a SC or ST;
  • a victim of trafficking in human ;
  • a woman or child;
  • disabled person, including mental disability;
  • a victim of mass disaster;
  • an industrial workman;
  • a person in custody;
  • person whose annual income is less than rupees nine thousand or such

other higher amount as may be prescribed by the State Government if the case is before a court other than the Supreme Court and less than rupees twelve thousand or such other higher amount as may be prescribed by the Central Government if the case is before the Supreme Court;

  •  unable to engage a lawyer and secure legal service on account of reasons such as poverty, indigence situation etc.,

Various Statutory and Judicial bodies have been established in order to provide quick redressal-

(a) National Legal Service Authority(NALSA)

Constituted in the year 1995, NALSA is a statutory body having the motive of implementing and monitoring the ongoing Legal aid programs in the Country. NALSA issues guidelines to be followed by State Legal Service Authority and District Legal Service Authority to implement the Legal aid programs and to organize Legal Aid Camps in every district in order to spread awareness among people regarding the authority. It also organizes Lok Adalats for speedy disposal of cases.

(b)Supreme Court Legal Service Committee

It is another statutory body working to provide legal aid to people falling in the category as mentioned in Section 12. Apart from that, LSA Act, 1987 also directs this authority to perform functions as may be determined by the Central Authority and State Authority respectively.

(c)Taluka Legal Service Authority

As per Section 11, Taluka Legal Services were established which work under the rules made by the different States.

(d)Lok Adalats [Judicial body]

Lok Adalat is one of the alternate dispute resolution mechanisms, it is a forum where disputes pending in the court of law or at pre-litigation stage are settled amicably. It is a judicial body possessing the powers of a civil court.

(e)Apart from these Governmental Bodies, many NGOs and Law firms doing Pro Bono cases also provide free Legal Aid. Nowadays, many law schools have started a Legal Aid cell in order to raise awareness regarding the availing facilities that can be taken by them. In 2017, the Ministry of law also launched an online platform known as “Pro-Bono Legal Service” where interested lawyers can register themselves to volunteer for pro-bono services for the people out of reach of the court.

Legal /constitutional validity of legal aid

Another question which arises is the constitutional/legal validity of the provision of Free Legal aid. To answer this question, we need to refer to the following points:

  1. Article 39A: This article clearly mentions that, “It is the obligation of the State to see that the legal system advances justice based on equal opportunity for its entire citizen. It should therefore give free legal aid to the individuals who can’t get justice because of financial and other disabilities.”
  2. Article 14: This article demands for equality before law and Legal aid aims to remove the inequality between various segments by providing equal opportunity to represent their case, whatever the situation may be.
  3. Article 21: The article provides the fundamental rights like Protection of Life and Liberty and provisions of Free Legal aid is an essential part of it.
  4. Section 304 of CrPC: This section states that if the accused is unable to procure a legal advisor, the court must provide one to represent the accused on the bearing of the State.
  5. Order 33 rule 17 of CPC: This section states that if an indigent person is not able to avail legal services, then the court shall exempt him from paying court fees.

Supreme Court in various cases has also asserted on the Importance of Free Legal Aid:

  • Hussainara Khatoon v. State of Bihar: The Court in this case held that if any accused in unable to afford a legal representative then he/she will be able to avail free legal aid on the cost of State.
  • Khatri v. State of Bihar: The Court in this case said that the duty to provide legal aid to an accused arises from the moment he/she is produced before the Magistrate for the first time and continues whenever he is produced for remand.

Critical analysis

In a country where the majority of people are unaware of the legal remedies available to them, even the thought that they can bear the cost of legal process is vague, which is why Free Legal aid is essential for our country.

Various Committees and Authorities are working towards providing Free Legal aid, but the quality of Legal Aid provided is sometimes not up to the mark. One of the reasons may be the enormous amount of cases; sometimes the lawyers overlook many facts in a case, which is why more lawyers are required to be under the authority. It has also been reported that sometimes the lawyers who should have been working for free, charge an amount to represent the case, which is ethically and legally wrong.

Another issue is the lack of awareness among people regarding Free Legal Aid and other schemes introduced by the Government. These days, Many Universities and Law Colleges have also formed Legal Aid Cells in order to spread awareness through mediums such as Nukkad Naatak etc.

Lok Adalat seems to be more effective as it disposes cases at a faster rate. However sometimes, there is a lot of pressure on Judges, as they have to dispose of a given number of cases set by the High Court, due to which the Judgments are given in a hastened manner.

Conclusion

Free Legal Aid is essential for a democratic country, as it upholds various basic principles like the Rule of Law and also follows the concept of Natural Justice. The preamble of our Constitution is focused on the fact that the Constitution must provide Justice in all forms particularly “social, economic and political; liberty of thought expression, belief faith and opportunity” and Legal aid is the method of doing that.

According to NALSA, around 8.2 Lakh people benefited from the Free Legal aid in the year 2017-18, which is appreciable, but the quality of the services provided is still under doubt.  It is the duty of every lawyer to make sure that every client is aptly represented without caring for the money. Hence, more and more lawyers should come forward to register for the Pro Bono services to ensure that the quality of the Legal Aid provided is up to mark and people can trust the services without worries.

Author: Shyam Ji Mishra from Amity University, Lucknow.

Editor: Avani Laad from Symbiosis Law School, Pune.

Rights of prisoners: Development in India

Reading time: 6-8 minutes.

A prisoner is a person who faces deprivation of liberty against his/her will. It can be by detainment, servitude, or by coercive restriction. Prisoners are equipped with rights to some degree as a person when they are in prison, and these fundamental rights cannot be taken away from them. The essential rights join the benefit to sustenance and water, the choice to have a lawyer to defend himself, protection from torment, violence, and racial discrimination.

Evolution of prisoners and their rights

During the 1800s, most prisoners were sent to prisons as opposed to getting capital punishment for the offense they had committed. After the late 1800s, there was a “hand-off” strategy that was adopted and it fundamentally affected the courts throughout the twentieth century. The Prisoner Rights Movement that started during the 1960s made critical progress towards the advancement of prisoner rights, altering how they would be dealt with and how they would come to act when in prison. The cases that developed during this time added to the current treatment, connection, and subculture that the prisoners presently experience.

In Pervear v. Massachusetts 1866, a case was brought to the Supreme Court concerning prisoner rights. A Massachusetts agent did not have a permit to sell alcohol and was condemned to an enormous fine and three months of hard work. He brought the case to the Supreme Court, saying that the Eighth Amendment against cruel and unusual punishment was not complied with, because the sentence didn’t coordinate the crime. The Court decided that the Constitution only applied to government cases, accordingly deciding that a prisoner had no constitutional rights, not even Eighth Amendment rights. This was the first case that expressed there would be a “hands-off” strategy and that states could run prisons how they wanted, without government obstruction. In 1941, the “hand-off” arrangement started to change because of the instance in Ex parte Hull. It was argued that there was violation of prisoners’ writ of habeas corpus, and the Supreme Court decided that prisoners have the right to apply for writs and that nobody was permitted to meddle with that right.

Cooper v. Pate 1964, and various cases that were brought since 1941, prompted prisoners’ better access to courts. The case that at last finished the “hands-off” arrangement was Holt v. Sarver(1970), which brought to light the deplorable condition of prisons, and the decision on this case prompted the Prisoners’ Rights Movement.

During the Prisoners’ Rights Era, prisoner rights changed significantly. The cases and Amendments made during this time not just influenced cases and rules that had recently existed, yet also prompted the formation of new laws to guarantee the rights of prisoners. Because of these decisions and choices, prisoners were influenced fundamentally. The way that they cooperated inside the court framework changed, as did how their way of communication with one another.

Development in India

The judicial system in India plays an integral role because it sets the laws which are to be followed by the respective citizens. It is the constitutional duty of a judiciary in any nation to protect the citizens’ human rights. They are additionally obligated to make the rules and regulations of prisons for the criminals that are housed there. However, that does not mean that the Constitution can deny the prisoners of their most basic rights. The Supreme Court of India refers to Article 21 of the Indian Constitution and developed human rights law for providing protection and rights to maintain a prisoner’s human dignity. If an individual or an authority chooses to violate these rights, they violate the provisions stated in Article 14 of the Constitution, which protects the right to equality as well as equal protection of the law.

  1. Right to Legal Aid

Though the Right to Legal Aid is not something explicitly given by the Constitution, the legal executives often display kindness towards detainees who cannot afford it or simply connect with the legal counsellor voluntarily. Free Legal Aid is included by the 42nd Amendment Act, 1976, as one of the directive principles of state policy under Article 39A. Although it is the most significant and direct Article of the Constitution, which discusses Free Legal aid, this Article is not exactly enforceable by courts. Still, these guidelines are central to administering appropriate legislation. Article 37 of the Constitution directs the state to apply these standards.

In contrast, Article 38 prescribes advancing government assistance of individuals by ensuring and securing a social order wherein equity, social, monetary, and political, will illuminate all the establishments and national legislation. The parliament passed the Legal Services Authorities Act, 1987 under which legitimate Aid is provided for, while different state governments have set up lawful advisory boards and plans for Free Legal Aid and unforeseen issues to give effect to the Constitutional command of Article 39-A. Under the Indian Human Rights law, legal Aid is of great importance, and it is not only accessible in criminal cases but is additionally offered in standard, income, and regulatory matters.

As exemplified in the case of Madhav Hayawadan Rao Hosket vs. the State of Maharashtra, a three adjudicators seat (V.R.Krishna Iyer, D.A.Desai and O.Chinnappa Reddy, JJ) of the Supreme Court perusing Articles 21 and 39-A, alongside Article 142 and area 304 of Cr.PC together pronounced that the Government was under obligation to offer legitimate types of assistance to the charged people.

  • Rights against inhuman treatment of prisoners

Human Rights are an integral part of human dignity. The Supreme Court of India, in different cases, has aptly noted the gratuitous brutality of prisoners and has enacted appropriate jails and police experts to defend privileges for detainees. The Supreme Court embedded the right against torment into Articles 14 and 19 of the Constitution. Herein, it is stated that “the treatment of a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14”.

In Raghubir Singh vs. the State of Bihar, the Supreme Court communicated its anguish over police torment by ordering lifelong incarceration to a cop who was liable for the demise of a suspect while in a police lock-up.

The ruling of the Supreme Court on account of the D.K. Basu case is vital. While managing the case, the Court focused on the issue of custodial torment and gave various heads to mitigate such insidious behaviour, for better assurance and advancement of Human Rights. In this case, the Supreme Court characterized torment and provided its suggestions.

  • Rights against solitary confinement and bar fetters

The courts have solidified their perspective to be against solitary confinement and held that the inconvenience of solitary confinement is an exceptionally corrupting and dehumanizing impact on prisoners. However, the courts placed an exception for unusual situations where the convict was a direct threat to others; he/she should then be isolated from the remaining prisoners. The Supreme Court reflected upon the legitimacy of such confinement in the Sunil Batra case. The Supreme Court has also firmly objected against applying bar shackles to the prisoners. The Court saw that always keeping a prisoner in shackles day and night diminished the detainee from individual to a creature, and such treatment was so inhuman and abnormal that the utilization of bar chains was against the soul of the Constitution of India.

  • Right to speedy trial

The speedy trial of offenses is one of the essential targets of the criminal equity conveyance framework. When the Court takes the comprehension of the allegation, then the prosecution must be directed speedily to rebuff the one who is liable and to exonerate the guiltless.

The right to a speedy trial is provided under section 309 of Cr.PC. If the arrangements of Cr.PC were followed in their letter and soul, at that point, there would be no doubt of any complaint. However, these laws are not appropriately executed. It is essential that the Constitutional assurance of speedy trial exuding from Article 21 ought to be adequately reflected in the arrangements of the code.

For this reason, in A.R.Antulay vs. R.S.Nayak, the Supreme Court set suggestions that will be implemented in ensuring the Human Rights of detainees. The Supreme Court then concluded that the privilege to speedy trial spilling out of Article 21 of the Constitution applies to charges at any stage such as examination, request, trial, bid, modification, and retrial.

  • Narco Analysis/Brain Mapping/Polygraph

In the case of Selvi Vs. State of Karnataka (2010), the Supreme Court has deemed methods such as narco-analysis, polygraph tests, and brain mapping as unconstitutional, thereby violating human rights. This is questionable, as it will be used as a hindrance to examination. Many affirmed lawbreakers may walk away from conviction by taking advantage of this position. Be that as it may, the zenith court states that an individual may be subject to such tests as long as he/she consents to them. While the results of these tests will still not be accepted as proof in the Court, it can be utilized for the encouragement of examination. With the headway in innovation combined with nervous system science, Narcoanalysis, Polygraph test, and Brain mapping proved to be useful devices of examination organizations around the world for extracting truth from the accused. Be that as it may, voices on the opposition were raised by numerous human rights associations as well as individuals exposed to such tests. They were marked as a detriment to the accused person’s psyche, thereby interfering with the right to protection of a person. The Supreme Court acknowledged that the tests oppose Article 20 (3), which mentions that an individual cannot be compelled to provide proof against himselves.

Major statutes and landmark judgements

The Constitution of India

The Constitution of India does not explicitly provide any provisions identified with the prisoners’ rights, however on account of T.V. Vatheeswaran v. Territory of Tamil Nadu, it was held that the Articles 14 or the equality before and equal protection of law, Article 19 which contains the 6 freedoms and Article 21, guaranteeing the right to life and its many facets are accessible to the detainees just as they would be to free men.

The Prisoner’s Act, 1894

The Prisons Act, 1894, is the first legislation regarding prison regulation in India. This Act primarily focuses on the reformation of prisoner environments in conjunction with the rights of prisoners. The following Sections of the Prisons Act, 1894 are related to the transformation of prisoner conditions:-

  1. Accommodation and sanitary conditions for prisoners,
  2. Provision for the shelter and safe custody of the excess number of prisoners who cannot be safely kept in any prison,
  3. Provisions relating to the examination of prisoners by qualified Medical Officer,
  4. Provisions relating to separation of prisoners, containing female and male prisoners, civil and criminal prisoners and convicted and under-trial prisoners,
  5. Provisions relating to the treatment of under-trials, civilian prisoners, parole, and temporary release of prisoners.

In the year of 2016, the parliament had passed the Prisons (Amendment) Bill, 2016, to amend the Prisons Act, 1894, to provide protection and welfare of the prisoners.

In the case of Hussainara Khatoon v/s Home Secretary, Bihar, it was said that if free legal services are not provided, the trail itself may be vitiated as contravening Article 21.

Justice V.R. Krishna Iyer in the case of State of M.P v/s Shyamsundar Trivedi held that convicts are not, by mere reason of the conviction, denied fundamental rights which they would otherwise possess.

Conclusion

It may very well be said that the prisoners are qualified for all their essential rights while they are behind bars. The Indian Constitution doesn’t explicitly accommodate the prisoners’ privileges, however Articles 14, 19 and 21 certainly ensured the prisoners’ privileges and the arrangements of the Prisons Act, 1894 contains the arrangements for the government assistance and insurance of detainees. The Court has decided that it can intercede with prison organizations when established rights or statutory remedies are violated to the injury of the prisoner.

The Supreme Court by and large held that prisoner is an individual, a characteristic individual and furthermore a legitimate individual. Being a prisoner doesn’t invalidate you from being individual. Conviction for a wrongdoing doesn’t diminish the individual into a non-individual, whose rights are dependent upon the impulse of the prison organization and in this manner, it acts as a burden on jail authorities and others, in the absence of procedural safeguards.

Author: Aishwarya Moitra from School of Law, Sharda University, Knowledge Park III, Greater Noida.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.