HUMAN RIGHTS PROJECT

TOPIC- VIOLATION OF HUMAN RIGHTS OF PRISIONERS WITH

RESPECT TO POOR LIVING CONDITIONS OF INDIAN PRISONERS

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 INTRODUCTION

A prison is considered as a place in which individuals are physically confined and are
deprived of personal freedom to a certain extent. Prison is an integral part of the criminal
justice system of any country. Prisons may be meant exclusively for adults, children, females,
convicted prisoners, under-trials etc. The objective of imprisonment may vary from country
to country. It may be: a) punitive b) deterrence c) reformative or d) rehabilitative etc. The
primary purpose of imprisonment is to protect society against crime. Punitive methods of
treatment of prisoners alone cannot achieve the goal of reformation of prisoners. Various
human rights approaches and human rights legislations as well as judiciary have facilitated a
change in the approaches of criminal justice system.

“Human rights” refers to certain rights and freedoms that are fundamental to human
existence. They are inherent entitlements that come to every person as a consequence of
being human, and are founded on respect for the dignity and worth of each person. They are
not privileges, nor gifts given at the whim of a ruler or a Government. Nor can they be taken
away by any arbitrary power. They cannot be denied, nor can they be forfeited because an
individual has committed any offence or broken any law. ‘Prisoners’ rights have become an
important item in the agenda for prison reforms. This is due essentially to the recognition of
two important principles. Firstly, it is increasingly been recognized that a citizen does not
cease to be a citizen just because he has become a prisoner. The Supreme Court has made
it very clear in many judgments that except for the fact that the compulsion to live in a prison
entails by its own force the deprivation of certain rights, like the right to move freely or to
practice a profession of one’s choice, a prisoner is otherwise entitled to the basic freedoms
guaranteed by the Constitution.1 Secondly, the convicted persons go to prisons as
punishment and not for punishment.2 Prison sentence has to be carried out as per court’s
orders and no additional punishment can be inflicted by the prison authorities without
sanction. Prison authorities have to be, therefore, accountable for the manner in which they
exercise their custody over persons in their care, especially as regards their wide discretionary
powers.

1 Charles Shobraj vs. Superintendent, Tihar Jail, AIR 1978, SC 1514

2 Jon Vagg. Prison System- A Comparative Study of Accountability in England, France, Germany and the
Netherlands, Clarenden Press, Oxford 1994

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The need for prison reforms has come into focus during the last few decades. The Supreme
Court and the High Courts have commented upon the deplorable conditions prevailing inside
the prisons, resulting in violation of prisoner’s rights. The problem of prison administration
has been examined by numerous expert bodies set up by the Government of India. The most
comprehensive examination was done by the All India Jail reforms Committee of 1980-83,
popularly known as the Mulla Committee. The National and the State Human Rights
Commission have also, in their annual reports, drawn attention to the appalling conditions in
the prisons and urged governments to introduce reforms.

INTERNATIONAL SOURCES OF PRISONERS RIGHTS

The widespread abuses of human rights and freedoms in the 1930s, which culminated in the
atrocities of the World War between 1939 and 1945, put an end to the notion that individual
States should have the sole say in the treatment of their citizens. The signing of the Charter of
the United Nations in June 1945 brought human rights within the sphere of international law.
All Member States of the United Nations agreed to take measures to safeguard human rights.
Three years later, the adoption of the Universal Declaration of Human Rights provided the
world with a "common standard of achievement for all peoples and all nations", based on the
"recognition of the inherent dignity and of the equal and inalienable rights of all members of
the human family" (preamble to the UN Charter). Over the years, since the proclamation of
the Universal Declaration in 1948, States have developed a considerable number of human
rights instruments at the national, regional and international levels, and have undertaken
obligations under international and domestic law both to promote and to protect a wide
variety of human rights.

1. The UN Charter - The primary source of authority for the promulgation of human rights
standards by United Nations bodies may be found in the Charter itself. The second
paragraph of the Preamble states that one of the principal aims of the United Nations is:
to reaffirm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small ...
Article 1, paragraph 3, of the Charter states that one of the purposes of the United Nations
is to achieve international cooperation in: promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race, sex, language
or religion...

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 These should not be seen merely as empty statements of principle. Rather, as already
stated, the Charter is a legally binding treaty to which all Member States are parties.
These provisions had the legal effect of, once and for all, putting to rest all arguments as
to whether human rights and their enjoyment by individuals were subjects for
international law, or merely matters of State sovereignty. Consequently, the fact that
prison officials are bound by such rules is now beyond dispute.
2. Universal Declaration of Human Rights - The Universal Declaration of Human Rights
represents a great step forward taken by the international community in 1948. This
applies to articles 3, 5, 9, 10 and 11 of the Universal Declaration, which address,
respectively, the right to life, liberty and security of person; the prohibition of torture and
of cruel, inhuman and degrading treatment or punishment; the prohibition of arbitrary
arrest; the right to a fair trial; the right to be presumed innocent until proved guilty; and
the prohibition of retroactive penal measures. While these articles are most directly
relevant to the administration of justice, the entire text of the Universal Declaration offers
guidance for the work of prison officials.
3. International Covenant on Economic, Social and Cultural Rights- The International
Covenant on Economic, Social and Cultural Rights entered into force in January 1976 and
currently has 147 States parties. Article 11, stating the right of everyone to an adequate
standard of living, is particularly important to the rights of prisoners. This right, as stated
in article 11, paragraph 1, includes the right to adequate food, clothing and housing and to
the continuous improvement of living conditions.
4. International Covenant on Civil and Political Rights - . The International Covenant on
Civil and Political Rights entered into force in March 1976. It currently has 149 States
parties. In articles 6, 7, 8, 9, 10, 11, 14 and 15, the Covenant details the right to life; the
prohibition of torture; the prohibition of slavery, servitude and forced labour; the
prohibition of arbitrary arrest or detention; the rights of all persons deprived of their
liberty; the prohibition of imprisonment for failure to fulfil a contractual obligation; the
right to a fair trial; and the prohibition of retroactive penal measures. The Covenant is a
legally binding instrument which must be respected by Governments and their
institutions, including prison authorities. The implementation of the Covenant is
monitored by the Human Rights Committee, which was established under the terms of the
Covenant itself.
5. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment- the Convention against Torture and Other Cruel, Inhuman or Degrading

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 Treatment or Punishment entered into force in June 1987 and currently has 136 States
parties. The Convention goes considerably further than the International Covenant on
Civil and Political Rights in protecting against the international crime of torture, other
cruel, inhuman or degrading treatment. Article 10 details the necessity to include
education and information regarding the prohibition of torture in the training of any
persons who may be involved in the custody, interrogation or treatment of any individual
subjected to any form of arrest, detention or imprisonment. Article 11 emphasizes that
States parties shall keep under systematic review all procedures pertaining to the arrest,
detention or imprisonment of individuals with a view to preventing torture. Articles 12
and 13 ensure that States parties conduct an impartial investigation whenever there are
reasonable grounds to believe that an act of torture has been committed, and guarantee
victims of torture a right to complain and to have their case promptly and impartially
examined by competent authorities, protecting all witnesses and complainants from ill-
treatment or intimidation. Additionally, under articles 2, 3, 14 and 15 of the Convention,
States parties are obliged to take effective legislative, administrative, judicial or other
measures to prevent acts of torture; to commit to the principle of non-refoulement when
there are grounds to suspect that a returned person would be tortured; to compensate
victims and their dependants; and to exclude evidence or statements obtained through
torture.
Standard Minimum Rules for the Treatment of Prisoners, Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment and
Basic Principles for the Treatment of Prisoners are the three instruments that provide a
comprehensive set of safeguards for the protection of the rights of persons who are
detained or imprisoned. hey state that all prisoners and detainees must be treated with
respect for their human dignity, with regard to the conditions of their detention. They deal
with the following issues: treatment and discipline; contact with the outside world; health;
classification and separation; complaints; records; work and recreation; and religion and
culture.

CHALLENGES TO PRISONERS’ RIGHTS IN INDIA & ITS VIOLATION

Overcrowding

Overcrowding in Indian prisons is seen as the root problem that gives birth to a number of
other problems relating to health care, food, clothing and poor living conditions. The total

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number of prisons at national level has increased from 1,339 in 2018 to 1,350 in 2019, having
increased by 0.82%. 2. The 1,350 prisons in the country consist of 617 Sub Jails, 410 District
Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School
and 2 Other than the above Jails.3

Year No. of prisons Actual Capacity of Actual no. of Occupancy Rate

prisons prisoners at the end at the end of the
of year year

2017 1,361 3,91,574 4,50,696 115.1%

2018 1,339 3,96,223 4,66,084 117.6%

2019 1,350 4,03,739 4,78,600 118.5%

While some jails are comparatively empty, there are others which are overcrowded by about
three times their capacity. Overcrowding has also begun to affect the attempts of the prison
administration to empower prisoners with skills that would involve them in gainful
employment after release. These attempts come in form of workshops where prisoners are
taught carpentry, printing, binding, doll-making, typing etc. however, due to the pressing
need for space, more and more workshops are being used to house prisoners. As stated by
Mahatma Gandhi "Crime is the outcome of a diseased mind and jail must have an
environment of hospital for treatment and care." To achieve this goal, a congenial
atmosphere is required to be created in jails for the benefit of inmates. Apart from emphasis
on social and ethical values for integration with society after release, inmates also require
educational, recreational and vocational training facilities. This will help them not only
overcome their hostile attitude towards society which will facilitate their integration with the
mainstream, but also provide them with alternate sources of livelihood after release. But due
to overcrowding, this is becoming an unattainable goal.

A serious and long term solution to the problem of overcrowding in prisons needs a review of
the functioning of the entire criminal justice system, including the system of arrests,
sentencing policies and notions of crime. The National Police Commission in its Third Report
referring to the quality of arrests by the Police in India mentioned power of arrest as one of
the chief sources of corruption in the police. The report suggested that, by and large, nearly

3 Prison Statistics in India, 2019, National Crime Records Bureau (Ministry of Home Affairs) Government of
India, accessed at https://ncrb.gov.in/sites/default/files/PSI-2019-27-08-2020.pdf

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60% of the arrests were either unnecessary or unjustified and that such unjustified police
action accounted for 43.2% of the expenditure of the jails4 (The figures given in the Report of
the National Police Commission are more than two decades old. Today, if anything, the
position is worse.) The police often look upon imprisonment as an easy solution and use
preventive sections of law, like 151 of the Criminal Procedure Code indiscriminately. The
liberal use of the power to arrest, while contributing significantly to the problem of
overcrowding, leads to increased expenditure on jails. One way to deal with the problem of
overcrowding is to decriminalize certain offences and find alternatives to imprisonment,
particularly in petty offences and make minor offences compoundable.

Delay in completing cases is responsible for overcrowding in jails. An important factor

responsible for delaying trials is the failure of the agencies to provide security escort to the
undertrials to the courts on the dates of trial hearings. The prison department blames the
police for failing to provide adequate escort when required. The police, however, have their
own problems and cite law and order requirements and security duties for VIPs as having
overriding priority in deciding deployment of manpower. The only solution to the problem is
for the State Government to provide trained manpower exclusively for prison department’s
requirement of escorting prisoners. It was suggested that the armed police sanctioned for this
purpose should always be kept at the disposal of the prison department. Prisons are also being
used as multipurpose institutions, to house not only those convicted of crimes but also those
who do not need incarceration but medical and psychiatric treatment. Although there are
many judgements of the higher courts denouncing the use of prisons as homes for the
mentally ill, the practice continues to exist at some places.

Plenty of Undertrials and lack of Legal Aid

A total of (4, 78,600) prisoners as on 31st December, 2019 were confined in various jails
across the country. The number of Convicts, Undertrial inmates and Detenues were reported
as 1,44,125, 3,30,487 and 3,223 respectively accounting for 30.11%, 69.05% and 0.67%
respectively at the end of 2019. Uttar Pradesh has reported the maximum number of
undertrials (22.2%) in the country followed by Bihar (9.5%) and Maharashtra (8.3%)at the
end of 2019. 5

Year No. of No. of Undertrial No. of detenues No. of other Total no. of
4 Consultation Paper on Law Relating To Arrest, Law Commission Of India, accessed at
https://lawcommissionofindia.nic.in/reports/Annexure%20III%20of%20177th%20report.pdf
5 Supra 3 at page xi

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 convicts prisoners inmates prisoners

2017 1,39,149 3,08,718 2,136 693 4,50,696

2018 1,39,488 3,23,537 2,384 675 4,66,084

2019 1,44,125 3,30,487 3,223 765 4,78,600

In India the State is obliged to provide legal aid to the poor, as the Indian Constitution makes
it one of the Directive Principles of the State Policy under Article 39A. Legal Services
includes providing Free Legal Aid to those weaker sections of the society whofall within the
purview of Section 12 of the Legal Services Authority Act, 1987. It also entails creating legal
awareness by spreading legal literacy. In Sheela Barse vs. State of Maharashtra6, it was
held that legal assistance to a poor accused who is arrested and put in jeopardy of his life or
personal liberty is constitutional imperative mandated not only by article 39-A but also by
article 21 and 14 of the constitution. Article 21 clearly says that every person has an equal
right to life and liberty except according to the procedure established by the law. It was said
in the case of Hussainara khatoon vs. State of Bihar 7, that if any accused is not able to
afford legal services then he has a right to free legal aid at the cost of the state.

Also in Sukhdas vs. Union Territory of Arunachal Pradesh 8, it was held, in case an
accused is not told of his right and therefore he remains unprecedented by a lawyer, his trial
is vitiated by constitutional infirmity and any conviction as a result of such trial is liable to be
set aside. Similarly article 14 also talks about equality before law. Section 304 of CrPC
imposes an obligation on the courts to provide legal aid at the expense of the state to an
accused, who has no sufficient means and finances to engage an advocate. There cannot be
any real equality in criminal cases unless the accused gets a fair trial of defending himself
against the charge and a professional assistance. 

Legal Aid consists of four essential components. The first step is to impart legal literacy
with the aim of spreading awareness amongst prisoners about their rights and obligations and
sensitizing the prison administration. The next step is that of litigation, where the legal aid
workers take up cases of prisoners in courts and see that justice is done. It would also be
necessary to keep identifying those who need and deserve legal aid. To make legal aid
efficient and easily available, there is a need for para-legal staff to work in prisons with both
convicts and undertrials. It was further suggested that there should be greater involvement of
6 AIR 1938 SC 378
7 1979 SCR (3) 532
8 1986 SCR (1) 590

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Lok Adalats in criminal cases, which at present is limited. Lastly, constant monitoring of the
prison conditions to identify inadequacies and shortcomings of the prison administration and
suggest changes in law to bring about the desired reforms was discussed as essential to the
entire system of legal aid.

As per the recent report of NCRB almost 30% of the prisoners are illiterate and 42% have
only studied below class 10th thus most of them might not even be aware of their own rights.

Another major problem in this regard is getting bail. Many of the undertrial prisoners who
were granted bail are unable to avail of the said facility because of their inability to furnish
sureties or to comply with the conditions for release. Many poor prisoners are undergoing
sentence in jails even after completion of the period of their imprisonment, due to non-
payment of fine owing to poverty. As observed by the Mulla Committee, most prison
inmates belong to the economically backwards classes and this could be attributed to their
inability to arrange for the bail bond. Legal aid workers need to help such persons in getting
them released either on bail or on personal recognizance. Bail provisions must be interpreted
liberally in case of women prisoners with children, as children suffer the worst kind of
neglect when the mother is in prison.

Health Care and Medical Facilities

Prisoners cannot fend for themselves in their situation of detention, and it is the responsibility
of the State to provide for health services and a healthy environment. The International
Covenant on Economic, Social and Cultural Rights (ICESR) furthermore states that
prisoners have a right to the highest attainable standard of physical and mental health.The
problems relating to the health of prisoners and lack of adequate medical facilities in Indian
prisons is huge. Even Article 21 of Indian Constitution provides every person a right to life.
Through a number of judgments the apex court has held that right to life does not only mean
right to a bare minimum existence, it means having a basic standard of life. Out of the 1,544
Natural deaths, there were 1,466 deaths due to Illness and 78 deaths due to Ageing.
Furthermore, out of the 1,466 deaths due to illness (93 deaths due to illness not included, due
to non-availability of illness wise break from West Bengal), majority of the deaths were
reported under Heart related Ailments (406), Lung related Ailments (190), TB (81), Cancer
(78), Liver related Ailments (61), Brain Haemorrhage (56), Kidney related Ailments (51),
HIV (43) and other Ailments (500). Uttar Pradesh has reported the highest number of deaths
due to natural causes.

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Due to overcrowding, inmates have to live in extremely unhygienic conditions, with little
concern for health or privacy. Often cells built to house one or two persons now
accommodate twice or three times the number. Most toilets are open, denying the prisoner his
basic right to privacy and human dignity, and are also dirty. Water shortage being the rule
than the exception the toilets prove to be the ideal breeding grounds for health hazards and
epidemics.

The Supreme Court of India in its landmark judgment in Parmanand Katara v. Union of
India9 and others ruled that the state has an obligation to preserve life whether he is an
innocent person or a criminal liable to punishment under the law. Human Rights Watch has
recorded high rates of tuberculosis in India, and a 2008 research revealed that TB was
responsible for 9% of prison fatalities. In fact, Brazilian research found that 54 percent of
Mycobacterium tuberculosis strains in an urban population “were connected to strains from
inmates in prisons,” demonstrating that TB may spread from prison to community. With HIV
being one of the leading causes of death in prisons and the threat of MDR-TB hanging big
over the country, a strong focus on TB control in prisoners is critical for TB control in the
general population.

Non-availability of adequate medical facilities for prisoners is largely due to the lack of full
time doctors as well as lack of basic infrastructure, like well equipped ambulances,
stretchers, dispensaries, hospital beds etc. sometimes, the prisoner may need expert and
urgent medical attention which is not available within the jail premises. Transporting the sick
prisoner out in the absence of vehicles and escort in districts sometimes poses a problem. The
Gujarat High Court ruled in Rasikbhai Ramsun Rana v. State of Gujarat 10 that petitioners
incarcerated in the Central Prison, Vadodara, who were suffering from serious illnesses, were
denied sufficient and prompt medical care due to a lack of jail escorts necessary to transport
them to the hospital, and that the court held negligent officers personally accountable. The
Gujarat High Court granted directives to the state government in 2005 in a suo moto writ suit
to guarantee that all central and district prisons were equipped with an ICCU, pathology lab,
expert physicians, sufficient staff including nurses, and the most up-to-date medical treatment
devices. The sanctioned strength of doctors and Para-medical staff in many prisons is much
less than what is required. The Jabalpur Jail in M.P. was sanctioned a strength of three

9 1989 AIR 2039

10 1998 CriLJ 1347

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doctors way back in 1956 when the number of inmates in that prison was only 550 to 600.
Though the prison population now is about 4000, the number of doctors remains the same.

Drug addiction is on the increase in prisons and in many cases leads to other diseases, such as
AIDS and Tuberculosis. The rise in incidence of drug abuse could be related to the rise in
corruption and the easy access that the miscreants outside may have to inmates. A careful
monitoring is needed along with adequately equipped drug de-addiction centers. There are
drug addiction centers in certain prisons, ex- Tihar jail but they are also facing the problem of
overcrowding. There is, therefore, an urgent need to get as much aid as possible from civil
society and NGOs. NGOs should be encouraged to work inside the prisons and their efforts
should be supported and supplemented by those of prison administration.

MENTAL HEALTH- Mental illness is yet another major public health issue, with a high
frequency among convicts. For the sake of justice and to ensure the protection of basic human
rights – an essential ethos of the Indian constitution and society – it is critical to identify and
treat persons with mental health disorders. Studies done internationally, have found the
prevalence of mental illnesses to be three times higher in prisons when compared to the
general population. Imprisonment is often accompanied with depression and a feeling of
isolation and neglect. It was therefore felt that active counselling must be made available to
the prisoners to overcome these problems. Counselling should aim not merely at providing
temporary relief by pulling them out of their depression, but at instilling hope and a sense of
purpose in them and by equipping them with skills that may prove useful upon release.

In the case of Charanjit Singh & NHRC v. State NCT of Delhi 11 -The issue highlighted
relates to the continued detention of an undertrial prisoner who is mentally unstable and his
physical and mental condition does not even allow him to defend himself in the trial which is
pending against him. In the process almost 20 years have elapsed. He was aged 55 years at
that time. After the completion of the investigation, challan was filed against him. However,
while he was in judicial custody, he was found to be suffering from schizophrenia and thus,
trial could not proceed further. He has remained in judicial custody all through and the trial
did not move an inch as Trial Court found that it could not proceed against him who was not
only physically weak but a person of unsound mind and, therefore, incapable of defending
himself. As long period of 15 years passed by, the Trial Court decided to release him on bail.
However, he did not appear before the Trial Court on the date fixed. On this ground the Trial

11

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Court cancelled his bail and sent him back to Jail. Not only the illness from which he was
suffering, namely, schizophrenia and mental disease, worsened over a period of time, he is
now suffering from cancer as well. After NHRC intervened the FIR against him was quashed
and he was admitted in the Institute of Human behavior and Applied Sciences (IHBAS). In
this case the hon’ble Supreme Court issued certain guidelines to be followed in such cases.

The Mulla Committee has commented on the large number of mentally ill persons in jails, the
majority of whom are convicts and undertrials. In addition, mentally ill people not facing any
criminal charges have been incarcerated in some places. The Committee has also detailed the
abysmal living conditions in prison and utterly inadequate medical facilities.

Covid-19 and Prisoners’ Rights

The spread of COVID-19 in prisons and other detention facilities has thrown into stark relief
systemic threats to health in detention such as overcrowding and poor sanitary conditions.
Over 11 million people worldwide are estimated to be held in prisons, serving prison
sentences or awaiting trial.12 People in detention are at heightened risk from COVID-19 due
to a number of interlinked systemic factors. Firstly, prisoners often have a greater underlying
burden of disease and worse health conditions than the general population. Secondly, prisons
and other places of detention tend to have a high prevalence of diseases, infections and
pathogens due to poor living conditions. Thirdly, physical distancing is often difficult to
achieve in prisons. Finally, only limited health care may be available to those in detention.
The numbers of older people in detention are on the rise in many countries and members of
minority communities are often over-represented in prisons; these groups are recognized as
among those facing particular risks from COVID-19.

The pandemic has succeeded, to some extent, in bringing issues of overcrowding and
inadequate healthcare in prisons to the fore. It made it imperative that all the district level
functionaries–police, judiciary, legal services institutions, legal counsels and oversight
bodies–work in a more coordinated manner to ensure the fundamental right to life of
prisoners.

Efforts by Supreme Court- Concerned about the susceptibility of COVID-19 being greater in
overcrowded places like prisons, the high rate of inflow and outflow of population on daily
basis, the difficulty in maintaining social distancing and the high risk of prisons to be the
12 Forgotten Behind Bars: Covid-19 And Prisons, Amnesty International (2021) accessed at
https://www.amnesty.org/en/wp-content/uploads/2021/05/POL4038182021ENGLISH.pdf

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potential breeding grounds for the virus, the Supreme Court of India, on 16 March, 2020,
instituted a suo motu writ petition, titled

‘In Re : Contagion Of COVID 19 Virus In Prisons’. The apex court observed that the issue
of overcrowding of prisons is a matter of serious concern particularly in the present context
of the pandemic. While recognising the efforts of some of the state governments and prison
departments in adopting urgent preventive measures, the court in its order, dated 23 March,
2020, directed:

● Each state/UT to constitute a High Powered Committee (HPC) comprising the (i)
Chairman of the State Legal Services Authority, (ii) the Principal Secretary (Home/
Prison), (iii) Director General of Prison(s) to determine the categories of prisoners to be
released on interim bail/ parole or furlough to reduce overcrowding in prisons.
● The High Powered Committee shall take into account the directions contained in para
no.11 in Arnesh Kumar v. State of Bihar13,
● The Undertrial Review Committee constituted in the in‘re Inhuman Conditions in 1382
Prisons’ writ petition14, should meet every week and review cases.
● The physical presence of all the undertrial prisoners before the courts must be stopped
forthwith and recourse to video conferencing must be taken for all purposes.
● The transfer of prisoners from one prison to another for routine reasons must not be
resorted except for decongestion to ensure social distancing and medical assistance to an
ill prisoner.
● There should not be any delay in shifting sick person to a Nodal Medical Institution in
case of any possibility of infection is seen.
● Prison-specific readiness and response plans must be developed in consultation with
medical experts. “Interim guidance on Scaling-up COVID-19 Outbreak in Readiness and
Response Operations in camps and camp like settings” jointly developed by the
International Federation of Red Cross and Red Crescent (IFRC), International
Organisation for Migration (IOM), United Nations High Commissioner for Refugees
(UNHCR) and World Health Organisation (WHO), published by Inter-Agency Standing
13 (2014) 8 SCC 273; Aforesaid provision makes it clear that in all cases where the arrest of a person is not
required under Section 41(1), Cr.P.C, the police officer is required to issue notice directing the accused to
appear before him at a specified place and time. Law obliges such an accused to appear before the police officer
and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless
for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the
condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.
14 (2016) 3 SCC 700

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 Committee of United Nations on 17 March, 2020 may be taken into consideration for
similar circumstances.
● A monitoring team must be set up at the state level to ensure that the directives issued
with regard to prison and remand homes are being complied with scrupulously.

The Ministry of Home Affairs (MHA), in view of the increased vulnerability of prisoners to
the virus and the rise in number of positive cases in prisons, issued an advisory on 2 May,
2020. This advisory, titled “Management of COVID-19 in Indian Prisons - guidelines and
protocols which may be followed while dealing with persons arrested, detained and those in
Prisons and Correctional Homes”, was sent to the chief secretaries, DG/IG of police
departments and DG/IG of prison departments of all states and UTs.

Efforts Undertaken by the Prison Departments to curb the spread of COVID-19- States
undertook various measures to prevent the spread of virus in prisons. These included
measures such as creation of isolation wards, quarantine of new prisoners including prisoners
of foreign nationality for a specific period, preliminary examination of prisoners for
symptoms of COVID-19, ensuring availability of medical assistance, scanning of staff and
other service providers at entry points, sanitisation of prison campus and wards, supply of
masks, barring or limiting of visitors to prisoners, suspension of cultural and other group
activities, awareness and training with regard to stoppage of transmission of COVID-19 and
court hearings through video-conferencing, efforts to boost the immunity of prisoners by
providing them kadha as per AYUSH guidelines, to name a few.15

During the pandemic, video conferencing was used as a mode to communicate with the
family as well as to present a prisoner before court. However, it is necessary to highlight that
there are practical challenges that emerged while using video conferencing like lack of
adequate infrastructure, inability of the accused to participate in the trial, inability of the
lawyer to seek instructions from the client, inability of the vulnerabilities of the accused from
being detected by the judge, among other such issues. None of the HPCs issued guidelines or
safeguards to be applied while using video conferencing in order to ensure that fair trial rights
are not violated.

Eventhough, good initiatives were taken by the government, prisons were affected by Covid-
19. Approximately, 24, 500 inmates became covid positive (excluding prison staff) and 28 of
15 ‘Prisons &Ensuring Effective Response to COVID-19’ organised by CHRI and Madhya Pradesh Prisons &
Correctional Services in June 2020. Accessed at https://www.humanrightsinitiative.org/publication/reportof-the-
national-consultation-on-prisons-ensuring-an-effective-response-to-covid19

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the inmates died.16 However, this is the data recorded by the prison staff and the actual
numbers might even be higher.

Classification of Prisoners

It was considered essential to prevent undertrials, first timers and casual prisoners from being
influenced, bullied and abused by the few but dominant hard core criminals in prison. It was
observed that juveniles or young offenders, who are housed with other hardened criminals,
often come out of prison only to commit far more serious crimes than they had done earlier.
At present, prisoners in Indian jails are classified into different classes not on the basis to
their criminal record but according to their social, economic and educational background.
This, in fact, is a legacy of our colonial past which we have not shed.

This Committee was appointed on the orders of the Supreme Court in a civil writ petition in
which the existing system of classification was challenged. The Committee, in its report,
mentioned that the existing system of classification, based on criteria, like social status,
education, habit, mode of living etc. was repugnant to the concept of equality propounded
by Article 14 of the Constitution of India and should be abolished. The broad criteria for
segregation of prisoners, according to the Committee, should include Convicts, Undertrials,
Age, Nature of Crime, Previous History (whether habitual or casual), Prison Term, Kind of
Sentences, Nationality, Civil Prisoners, Detenues, Security Requirements, Disciplinary or
Administrative requirements, Correctional Educational or Medical Needs. The
recommendations made by the Committee about classification of prisoners have been
accepted by the Delhi Administration. But the practice continues in certain states.The State
Governments should be persuaded to implement the recommendations. The Commonwealth
Human Rights Initiative has already circulated the recommendation to all States and Union
Territories.

Rights of Women Prisoners

16 State/UT Wise Prisons’ Response To The Coronavirus Pandemic In India, Commonwealth Human Rights
Initiative in India, accessed at https://www.humanrightsinitiative.org/content/stateut-wise-prisons-response-to-
covid-19-pandemic-in-india

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Although both men and women are subjected to imprisonment, little consideration has been
given to the different needs and problems of imprisoned women as opposed to men. This
omission may be a reflection of the fact that women prisoners are a very small minority of the
overall prison population. Indeed, the world average is 4 Percent.17 Only 15 States/UTs were
having Women Jails (31 Women Jails) with a total capacity of 6,511 in India and the rest of
21 States/ UTs have no separate Women Jail as on 31st December, 2019. Women, due to
their ignorance, are not even getting the benefit of proviso to Section 437 Cr.P.C, according
to which they can be released on bail even in non-bailable cases. The prison authorities must
take up the cases of women undertrials with courts so that they can be released on bail, this
can be done with the help of legal aid as well.

Little has been done to attend to the special needs of women inside the prisons. To give one
example, the Mulla Committee report of 1983 had recommended that “at every prison where
there is a sufficiently large number of women prisoners, (say, 25 or above), a full time lady
officer should be appointed. At other prisons arrangement should be made for part time lady
medical officers.”18 There are 120 prisons in Madhya Pradesh and none of them has provided
for a lady doctor for women prisoners, leave alone providing extra medical facilities to
pregnant women.19 Then there is the problem of rehabilitation. Women suffer from a low
social and economic status within their own families and find it harder to get back into
society upon release than men. It was suggested that such destitute women should be
equipped with vocational skills and protective homes to be established to provide shelter to
them after release. Imprisonment impacts on women differently than on men. The following
are some of the key areas of concern:- (a) Problem with accommodation. (b) Inappropriate
staffing (c) Lack of family contact. (d) Lack of education and work programmes. (e) Lack of
proper healthcare. (f) High proportion by women prisoners with a history of mental, physical
or sexual abuse. (g) The adverse impact of imprisonment of mother on their children. (h)
Disproportionate representation of indigenous women and foreign women

Children of Imprisoned Mothers- Women prisoners are often the sole or primary career for
minor children. This means that the imprisonment of the mother cannot be considered in
isolation. It is common in many countries for babies and young children to be taken into
17 A Study of condition of Women Prisoners & Their Children in Eastern U.P. Jails, National Commission for
Women, India, accessed at
http://ncwapps.nic.in/pdfReports/A_Study_of_condition_of_Women_Prisoners_and_Their_Children_in_Easter
n_UP_Jails.pdf
18 Report of the All India Jail Committee, 1980-83
19 Source: The Prison Department, Madhya Pradesh

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prison with their mothers. However it also raises complex issues about the facilities available
for such children to ensure their own appropriate development-physical, mental and
emotional including their interaction with other children. Even where special mother and
baby units are provided, these are often very limited in numbers and so may not be available
in practice.

According to Indian Jail manual age of child is up to six years, can stay with her mother in
prison, but many other country practice in this area varies considerably (from a few months to
6 years even within Europe), and has to include difficult issues pertaining to the mother's
capacity and suitability, the length of her sentence, and the nature of her crime, in addition to
the needs of the child. But this situation become stressful, when child completed his/her six
years age, and time for separation comes and it has very adverse impact on both mother and
child. Visiting prison can be a daunting and frustrating experience for adults. The children of
imprisoned mothers and particularly those who are taken into state care during the mother's
imprisonment are at significantly greater risk of developing criminal behaviour in adulthood
that other children similar background. The impact of their mother's imprisonment on the
children affects every aspect of their lives and not only their relationship with their mother. It
is similar to bereavement, but with added stigma and often less support, from the new career
teachers and others. Not surprisingly it often leads the children into aggressive and anti-social
behaviour. The impact on the children will, of course vary according to their age and the
surrounding family and community response.

Torture and Death in Prisons

Custodial torture ranging from assault of various types to death by the police for extortion of
confessions and imputation of evidence are not uncommon. Such a method of investigation
and detection of a crime, in the backdrop of expanding idea of ‘humane’ administration of
criminal justice, not only disregards human rights of an individual and thereby undermines
his dignity but also exposes him to unwarranted violence and torture by those who are
expected to ‘protect’ him.20 Asian Centre for Human Rights (ACHR) in its report, released on
June 26, stated that a total of 1,674 custodial deaths, including 1,530 deaths in judicial
custody and 144 deaths in police custody, took place from 1 April 2017 to 28 February 2018.
This means that on an average there were about 5 custodial deaths per day in the

20 K.I. Vibhute, Criminal Justice-A Human Right Perspective of Criminal Justice Process in India, (Eastern
Book Company, Lucknow, 1st Edition, 2004) p. 219

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aforementioned time period.21 If we look at the data regarding custodial deaths, it is res ipsa
loquitor (the thing speaks for itself) in the past three years the National Human rights
commission has receives nearly 5300 complaints regarding custodial deaths.22 This might not
even be the real data, which is much higher. Even after reporting the rate of conviction is too
less, due to lack of evidence as whatever happens, happens in prison where only witnesses in
a general situation can be other prison staff as well as other convicts, detenues etc. So, both of
them might be unwilling to be a witness in such a case.

The former Supreme Court judge, V.R. Krishna Iyer, has said that custodial torture is worse
than terrorism because the authority of the State is behind it. 23 It is a paradox that torture
continues to exist in India. This is because India is a liberal democracy with very clearly
articulated constitutional and statutory provisions against torture that are constantly being
developed and monitored by a strong and independent judiciary. This raises the question:
how does torture continue to persist in India?

The apex court in a number of cases has held that prisoners and detenues are not denuded
of their fundamental rights under Article 21 and it is only such restrictions as are
permitted by law, which can be imposed on the enjoyment of the fundamental rights of the
arrestees and detenues.24

Recommendations & Conclusion

“Fundamental Rights do not stop at the prison gates”25 as stated by Justice Krishna Iyer is
relevant to the present context. It is the duty of the state to ensure that the rights of the
prisoners are not violated. For this the prisons should work in a certain way and many
reforms are required. Optimum capacity of prisons needs to be assessed. Central Jails should
not house more than 750 inmates and district jails not mare than 400. For certain offences
alternatives to imprisonment should be designed to deal with such cases. Some more offences
should be added to the list of compoundable offences prescribed in law. Unnecessary and
indiscriminate arrests should be avoided by police personnel. Some Armed Police should be

21Torture Update: India, A Pub. of ACHR, 4 (June 2018).

http://www.achrweb.org/wp-content/uploads/2018/06/TortureUpdateIndia.pdf.
22Piyush Singh, Custodial death: A norm or an exception? The opinion (Sep 5th, 2020, 10:22 AM).
https://medium.com/the-%C3%B3pinion/custodial-death-a-norm-or-an-exception-ee4f0487260a .
23 The Hindu, Custodial Torture Worse than Terrorism, accessed at http://www.thehindujobs.com/the
hindu/2003/07/27/stories/2003072703510500.htm
24Neelabati Bahera vs. State of Orissa (1993 (2) SCC, 746)
25Sunil Batra vs. Delhi Administration, 1978 AIR 1675, 1979 SCR (1) 392.

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raised exclusively for the Prison department and kept at their disposal. Alternative care
homes for non criminal mentally ill persons should be built and prisons should not be used
for the purpose. Legal literacy drives should be launched with the aim not only of sensitising
the prison administration but also of spreading awareness amongst prisoners about their rights
and obligations. It is necessary to keep identifying those who need and deserve legal aid.
Legal aid workers must identify such prisoners and educate them about their right to legal
aid. Legal aid workers must help in getting the undertrials released on bail and on personal
recognisance. The plea bargaining system shall be utilised more often. Para legal staff should
be utilised to work in prisons and provide the required legal aid to prisoners. Legal aid
workers must constantly monitor prison conditions and suggest changes in law to bring about
the desired reforms. It is necessary to review the strength of doctors sanctioned for prisons
and ensure the availability of adequate medical facilities for prisoners and prison staff.
Arrangements must be made to look after the special requirements of women prisoners. At
least one woman medical officer must be available at times to attend to women prisoners. The
first medical examination of the prisoner, done at the time of his entry into the prison, must
be thorough. Detailed information about various ailments, including past medical history,
must be collected and faithfully recorded. Adequate infrastructural health care facilities, like
well equipped ambulances, stretchers, dispensaries, hospital beds etc. should be made
available to the prison administration. Suitable arrangements should be made to provide
psychiatric counselling to those suffering from chronic depression, particularly to women
prisoners. There should be a clearly defined system of responsibilities of the prison staff in
case of a medical emergency, which should be made known to prisoners through a chart or
pamphlet. NGOs’ help should be enlisted in dealing with drug addicts and in establishing
drug de-addiction centres. Each state and UT shall have atleast one women prison.
Programmes should be implemented to sensitise the prison administration on gender issues
and the special needs of women prisoners. Besides special facilities for pregnant women,
arrangements should be made to allow women to go back to their families for post natal care.

A mechanism should be evolved to monitor and ensure the implementation of various

recommendations made by different expert committees, courts and workshops from time to
time. The NHRC and the State Human Rights Commissions could take up this work and
ensure that follow-up action is taken to implement the recommendations. Existing laws and
arrangements should be reviewed so that prisoners could exercise their right to vote. There
should be an All India Prison and Correctional Service should be considered by the Central

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Government. Most prisons suffer from shortage of manpower. The State Governments should
periodically review the requirements of different types of staff required, including medical,
and take steps to remove the shortage. A Manual, explaining to the prisoners their rights and
obligations, procedure for lodging complaints, the conduct that is expected of jail
administration etc., should be prepared in simple language for prisoners’ benefit. The Manual
should be supplemented by the efforts of the NGOs to do legal literacy work amongst
prisoners. The system of visitors should be made viable to function as an effective monitoring
mechanism. The visitors should be chosen from amongst those who have an interest in
prisons and knowledge of how they should be run. Prisons should be opened to civil society
organisations as this would help in ensuring transparency and accountability in the prison
administration.

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