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  • Writer's picturePGCL Moot Court Society


Updated: Dec 13, 2020

- Sanjana Agrawal


In the past few decades, there has been an increased awareness in the recognition of prisoners’ rights, and the Indian Judiciary has played a pertinent role in recognising such rights by and through various pronouncements. Besides this, several legislations such as the Prisons Act, 1894 (“the Act”) have been enacted to regulate the rights of prisoners and the powers and duties of superintendents and officials in-charge of prisons.

There are various theories of punishment put forward by great thinkers, one of them being the Reformative Theory of Punishment, the applicability of which appears to be the need of the hour. This theory mainly focuses on reforming the criminal and in turn making him/her a better person and a law-abiding citizen, who can meaningfully contribute to the society. It also focuses on the punishment to be more curative than a deterrent. The primary legislation governing all such rights, being the Act, is a one-hundred and twenty-six-year-old act which needs to be amended and focused more on the changing needs of prisoners. Prisons in India need to adopt a more liberal and radical approach towards the treatment of prisoners, opening up to new ways of reforming prisoners, through means such as education and vocational training.

There are certain basic legal rights which all prisoners hold and cannot be deprived of. Such provisions are better analysed as follows.

Legislative analysis

The Act lays down various sections dealing with the employment of civil and criminal prisoners, giving civil prisoners the option to work and follow any trade or profession with the Superintendent’s permission. Such prisoners shall also have the right to receive wages from the trade or profession. Provision is also to be made by the Superintendent for employment (as long as they so desire) of criminal prisoners sentenced to simple imprisonment. The Act also provides that no criminal prisoner shall be kept at labour for more than nine hours a day, except in case of an emergency and also provides for medical examination of the labouring prisoners.

The Act also lays down directions regarding the health of prisoners within the prison premises and setting up of hospitals for sick prisoners. Prisoners shall be given access to regular medical check-up and sick prisoners shall be provided with proper medical care and attention. [1]

The provisions safeguard the prisoners from being exploited by the prison authorities and ensuring them humane working conditions by also taking into consideration the health aspect of the same, but one wonders how true the application of this provision in real life is. It is not a hidden fact that the prison officials and police often do resort to means involving unnecessary or disproportionate violence and torture on inmates.

According to an article[2] some prisoners in the Mandoli Jail, Delhi had moved the Delhi High Court in 2017, complaining about the inhuman conditions inflicted upon them. Prisoners had complained about the authorities discriminating among the inmates while assigning work to certain prisoners for as less as fifteen days, leading to them not being able to earn sufficient for their family. They complained about the lack of sufficient medical facilities, pathetic living conditions in the jail besides the lack of employment and faulty punishment procedures allegedly being implemented by the jail administration.

Due to the lack of prison facilities and proper infrastructure, it leads to overcrowding of prisoners’ which further results in physical and psychological torture. Stinking toilets for want of a proper supply of water, inadequate medical facilities, neglect in the grant of parole are some of the problems which need to be addressed.

The Act does not have provisions for labouring prisoners. This centurion old forgotten law needs to be amended to bring in provisions focusing more on the contemporary prison conditions. A rigid class system still exists in prisons, under this system, special privileges such as the certain category of prisoners are allowed to buy fruits and other foods of "good nutritive value"; while others are not, some may write and receive one letter a week, the others, one letter every two weeks are accorded to the minority of prisoners who come from the upper and middle classes irrespective of the crimes they have committed. [3]The Act needs to be amended to remove these inequalities and bring in a more uniform system of regulating the prisoners.

A bill was introduced in Lok Sabha, in 2016 to amend the Act, which sought to introduce some progressive amendments to the law such as the prisoners being provided with skill training including carpentry, language classes, cooking and gardening where one can develop new skills and is able to use them once he is a free man and also mentioned that the State, to achieve this should appoint certain professionals. However, the Bill was not passed in the Parliament and is pending assent, due to which the substantial amendments suggested in this colonial law stand ignored. [4]

Chief Justice Chandrachud. J. in D.B.M. Patnaik v. State of A.P. stated that “Convicts are not denuded of all the fundamental rights which they otherwise possess. A compulsion, following upon conviction, to live in a prison house entails by its own force the deprivation of fundamental freedoms like right to move freely throughout the territory of India or the rights to practice a profession, but the other constitutionally guaranteed precious rights under Article 21 are still applicable to the convicts that he shall not be deprived of his life and personal liberty except according to the procedure established by law.”[5]

The Supreme Court also held that anyone who has rendered his or her services to the State has to be paid equivalent wages or else it would amount to ‘forced labour’ within the meaning of Article 23 of the Constitution. [6]

The Supreme Court, through these judgements, has expanded the ambit of Article 21 enshrined in the Indian Constitution, by guaranteeing one his Right to Life. Prison inmates do not cease to be human beings and being in a prison itself restricts one’s movement, but that does not take away other basic fundamental rights, including his right to be treated with dignity, right to food and water, right to protect himself from torture, racial harassment and violence, and his right to basic health facilities. By this, it does not mean that prisons ought to be made a comfortable place for the prisoners to live in, but it is not necessary that those conditions be inhuman and barbarian.


“Every Saint Has A Past; Every Sinner Has A Future” – Oscar Wilde.

Prisoners should be given a chance to come out as better individuals and serve as useful elements to society. A lot of first-time offenders also end up in prison, which should aid them in reforming them and thereby preventing them from committing crimes in the near future, rather than turning them into hardened criminals. There is a need for speedier trials so that under trial prisoners do not end up spending years enduring torture and pain in the prison.

Counselling should also be provided to prisoners so that one does not come out mentally and physically decapacitated given that almost a majority of prisoners are under trial prisoners who are kept in inhuman conditions. Labouring women who are prisoners should be given access to better health and sanitary facilities. Provisions should be made to keep habitual and hardcore offenders separate from first- time offenders, while also being effectively implemented.

A stricter law should be enacted wherein the prisoners do not have access to digital means of communication and electronic devices as it exposes the security of the prisons and helps them give instructions to their aides outside the prison[7] this aspect is completely missing from the Act and hence needs to be amended according to prevalent times. The State Governments should tie-up with Non-Governmental Organisations to provide rehabilitation programmes.

While a lot of provisions look utopian in nature, portraying an idealistic approach which makes one wonder when a more stringent, and radical law would come into force actually implementing the guidelines laid down by courts. There is an absence of a comprehensive legislative framework which safeguards the rights of the prisoners, and India is in dire need of one. To improve prison conditions does not mean that prison life should be made soft; it means that it should be made human and sensible.

Sanjana is a fourth year student at Pravin Gandhi College of Law, Mumbai.

[1] The Prisons Act, 1894, No. 9, Acts of Parliament, Section 34,35,36, 37, 39, (1894). [2] High Court to examine inhuman conditions at Mandoli Jail, [3] Human Rights Watch, 1991 [4] The Prison (Amendment) Bill , 2016, [5] D.B.M. Patnaik v. State of A.P, AIR 1974 SC 2092 (India). [6] Gurdev Singh and others etc. vs State of Himachal Pradesh and others AIR 1992 HP 70. [7]

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