Department of Law

University of Mumbai

DOCTRINAL RESEARCH PROJECT ON

(LIFE AND LIBERTY CHANGING DIMENSIONS)

PRISONERS RIGHT TO PERSONAL LIBERTY IN INDIA

Submitted by:
Vikrant V. Parashurami
LL.M. Group I Constitutional and Administrative Law
Sem III. Roll.No.
2013-2014

It is said that no one truly knows a nation until one has been inside its
jails. A nation should not be judged by how it treats its highest citizens,
but its lowest ones.
Nelson Mandela

PREFACE

This research work has been carried out to examine the prisoners rights to personal liberty in
India. This project provides an intrinsic detail regarding the ways in which prisoners have been
provided with their right to personal liberty under Article 21. The research focuses on the judicial
construction of right to personal liberty and how it extends to prisoners and persons facing trial.

ACKNOWLEDGEMENT

This project would have been difficult to complete without the guidance by various people. I
have been guided by a number of persons throughout the span of this research project.
First of all, I would like to acknowledge my subject coordinator Mr. Yogesh Dharangutti, for
giving me the opportunity to carry on the research project on a worth research doing topic
i.e. Prisoners right to Personal Liberty in India and provided me with valuable
suggestions and guidelines at every level to make the project a valuable one and worthy.

DECLARATION
The text reported in the project is the outcome of my effort and no part of the project work is
copied in any unauthorized manner and no part has been incorporated without due
acknowledgement of the concerned teacher.

Date: 12-10-13

Name & Signature:

TABLE OF CONTENTS

A. TITILE

B. STATEMENT OF PROBLEM

C. OBJECTIVES

D. HYPOTHESIS

E. RESEARCH QUESTION

F. COVERAGE AND SCOPE

G. SECONDARY DATA COLLECTION

H. INTRODUCTION

I. LITERATURE REVIEW

11

CHAPTER 1: ARTILE 21 IN BRIEF

CHAPTER

1.1:

16

PERSONAL 18

LIBERTY AND ARTICLE 21

CHAPTER 2: PRISONERS RIGHTS: 20
BACKGROUND
CHAPTER 3: PRISONERS RIGHT TO

22

PERSONAL LIBERTY AND JUDICIAL

PRONOUNCEMENTS
CHAPTER 3.1 RIGHT TO FREE LEGAL AID 22
AND APPEAL
CHAPTER 3.2 RIGHT TO SPEEDY TRIAL

23

CHAPTER 3.3 RIGHT TO BAIL

25

CHAPTER

3.4

RIGHT

AGAINST 25

HANDCUFFING AND BAR FETTERS

CHAPTER 3.5 RIGHT AGAINST PUBLIC

26

HANGING

CHAPTER 3.6 RIGHT AGAINST DELAYED 26

EXECUTION
CHAPTER 4: OBSERVATIONS AND

28

FINDINGS
CHAPTER 5: CONCLUSION AND

29

SUGGESTIONS
LIST OF CASES REFERRED

32

A. Title:
Prisoners right to personal liberty in India

B. Statement of Problem:
1. In what ways do prisoners enjoy their right to personal liberty in India?
2. What role does the judiciary play in protecting prisoners right to personal liberty?

C. Objectives:
1. To examine the extent to which prisoners can enjoy their right to personal liberty as under
Article 21 of the Constitution of India.
2. To study the role played by the Indian judiciary in protecting prisoners right to personal
liberty.

D. Hypothesis:
1. The procedure established by law absolutely curtails the right to personal liberty of
prisoners and persons under trial in India.

E. Research Questions:
1. What rights, regarding personal liberty, are encompassed for prisoners and under trials

under article 21 of the constitution of India?

2. How has the judiciary interpreted the right to personal liberty so as to extend it to
prisoners and under trial persons?

F. Coverage and Scope

The research has been limited to judicial construction of the right to personal liberty of
prisoners in India.

G. Secondary Data Collection

The researcher has used library resources and online resources and databases to obtain case
laws, reports, newspaper reports and articles relevant to the subject under study.

H. Introduction
Right to personal liberty is one of the most precious and cherished gifts of democracy to
mankind. In a civilized society, the essence of all civil liberties is to keep alive the freedom of the
individual. Freedom or personal liberty is an essential concomitant for all other rights. Without
freedom, a man cannot be at his best1. In the words of K. Ramaswamy, J., Personal freedom is
a basic condition for the full development of human personality.2
Article 21 of the Indian constitution protects this prized right of personal freedom conjointly with
Article 19. This Liberty ensures freedom from not only arbitrary restraint but also secures such
conditions which are essential for the full development of human personality. 3 Such is the
importance of personal freedom, that any restriction on the liberty of an individual inevitably
hinders his personal development, growth and capability.
However liberty can never be in absolute terms. Unfettered and unregulated freedom can only
lead to anarchy and lawlessness. Thus, the essence of civil liberty is to keep alive the freedom of
the individual subject to the limitation of social control, i.e. curtailing the freedom of the
members of the society by the means of procedure established by law. As given under article
21 of the constitution, procedure established by law has been judicially constructed as meaning a
procedure which is reasonable, fair and just.4
In order to maintain peace and order in the society, the state must carry out investigation and
punish the offenders. To facilitate the same, the police have been given a wide range of powers,
such as to arrest the suspect without warrant, interrogate him in custody, search and seize
incriminating material, to collect the evidence and to put the offender behind bars. However this
deprivation of dignity of person, self-respect and inviolable right to life and liberty, would only

Personal liberty and Indian constitution available at http://lex-warrier.in/2011/01/personal-liberty-and-indianconstitution/

2
Kartar Singh v State of Punjab AIR..
3
Supra n 1
4
SC: Right to Life and Personal Liberty in Article 21 available Even to Foreign Nationals

10

be within the prescribed limits set down by laws; assiduously supervised by courts; and
executive excesses strictly be limited.5
Therefore persons undergoing trial or convicted for offences cannot be deprived of all personal
liberty or freedom. Even through the procedure established by law, one cannot take away all the
freedom of those convicted or accused. Committing an offence does not mean that the person
ceases to be a human being and so cannot be deprived of those aspects of life that constitute
human dignity. To what extent the quintessential right to personal liberty of prisoners can be
taken away has, for long, been a matter of debate.
Recognition of the human being in the convicted offender is an idea that has been accepted
after a long struggle with the state.6 A volley of prison reforms have been brought about through
various decisions of vigilant courts in the recent past. Subsequently, prisoners also enjoy
personal liberty, though with constrictions, by fact of imprisonment.
In the course of this research paper an effort has been made to examine the various rights that
prisoners and persons under trial have as an extension of their right to personal liberty.

5
6

Supra n 1at
Taking Prisoners rights seriously, Surabh Kothari, available at http://www.legalserviceindia.com/articles/po.html

11

I. Literature Review
Until relatively recently the view prevailed that a prisoner "has, as a consequence of his crime,
not only forfeited his liberty, but all his personal rights except those which the law in its
humanity accords to him. He is for the time being the slave of the state." 7 This view is not now
the law, and may never have been wholly correct.8
Not more than 200 years ago, the attitude towards prisoners, punishment and prisons was brutal,
inhuman and barbaric. The fact that a person has committed an offence does not mean that he
ceases to be a human being. All fundamental rights remain an enforceable reality even for a
prisoner, though in a constricted manner by the fact of the imprisonment.
The right to personal liberty is perhaps the most heavily curtailed right of a prisoner. However,
even imprisonment cannot totally deprive the prisoner or a person under trial of personal
freedom.
In his article Taking prisoners rights seriously, the author points out that, The Indian sociolegal system is based on non-violence, mutual respect and human dignity of the individual.9
Further, it is emphasized that, Article 21 of the Constitution guarantees the right of personal
liberty and thereby prohibits any inhuman, cruel or degrading treatments to any person whether
he is a national or foreigner. In addition to this, the question of cruelty to prisoners is also dealt
with specifically by the Prison Act, 1894. If any excesses are committed on a prisoner, the prison
administration is responsible for that.10
Right to speedy trial is a fundamental right as encompassed in Article 21 of the constitution. It is
in the interest of all concerned that the guilt or innocence of the accused is determined as quickly
as possible in the circumstances. Slow paced trials unnecessarily deprive the under trials of their
right to personal liberty.

Ruffin v. Commonwealth, 62 Va. 790, 796 (1871)

Cf. In re Bonner, 151 U.S. 242 (1894).
9
Id
10
Id
8

12

However, a shocking state of affairs with regard to dispensation of justice came forward in the
case of Hussainara Khatoon (I) v. State of Bihar 11. An alarmingly large number of men and
women, including children are behind prison bars for years awaiting trial in the court of law. The
offences with which some of them were charged were trivial, which, even if proved would not
warrant punishment for more than a few months, perhaps a year or two, and yet these unfortunate
forgotten specimens of humanity were in jail, deprived of their freedom, for periods ranging
from three to ten years without as much as their trial having commenced.12
The Honble Supreme Court expressed its concern and said that, What faith can these lost souls
have in the judicial system which denies them a bare trial for so many years and keeps them
behind the bars not because they are guilty; but because they are too poor to afford bail and the
courts have no time to try them. 13 The court brought into focus the failure of the magistrates to
respect section 167(2) of Cr.P.C. which entitles an under trial to be released from prison on
expiry of 60 days or 90 days as the case may be.
The author while expressing great concern over the huge number of people languishing in jails
without trials, brings the attention of the readers towards the case of Hussainara Khatoon (II) v.
Home Secretary, State of Bihar14 , where the Court while dealing with the cases of under trials
who had suffered long incarceration held that a procedure which keeps such large number of
people behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so
as to be in conformity with the requirement of Article 21.
In Mantoo Majumdar v. State of Bihar15 the Apex Court once again upheld the under trials right
to personal liberty and ordered the release of the petitioners on their own bond and without
sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in
police investigation and the mechanical operation of the remand process by the magistrates
insensitive to the personal liberty of the under trials, remanded by them to prison.

11

Hussainara Khatoon(I) v. State of Bihar

Supra 6
13
Supra 9 at 18
14
Hussainara Khatoon (II) v. Home Secretary, State of Bihar
15
Mantoo Majumdar v. State of Bihar
12

13

Handcuffing and bar fetters are often seen as a regular treatment to prisoners. However, the
courts through various cases have repeatedly held that handcuffing and bar fetters must be used
very cautiously, only in such cases where it is required.
In the case of Prem Shankar Shukla v. Delhi Administration 16 the Supreme Court struck down the
provisions of the Punjab Police rules which discriminated between the rich and the poor
prisoners in determining who was to be handcuffed. The Court also held that in the absence of
the escorting authority recording why the prisoner is being put under handcuffs, the procedure of
handcuffing is a violation of Article 21
The court observed, To handcuff is to hoop harshly and to punish humiliatingly. The minimum
freedom of movement, under which a detainee is entitled to under Art.19, cannot be cut down by
the application of handcuffs. Handcuffs must be the last refuge as there are other ways for
ensuring security.17
Further, it was held that, We clearly declare and it shall be obeyed from the Inspector General of
Police and Inspector General of Prisons to the escort constable and the jail warder-that the rule
regarding a prisoner in transit between prison house and court house is freedom from handcuffs
and the exception, under conditions of judicial supervision we have indicated earlier, will be
restraints with irons to be justified before or after. We mandate the judicial officer before whom
the prisoner is produced to interrogate the prisoner as a rule, whether he has been subjected to
handcuffs or other 'irons' treatment, and if he has been, the official concerned shall be asked to
explain the action forthwith in the light of this judgment.18
In the case of State of Andhra Pradesh v. Challa Ramkrishna Reddy & Ors. 19, the matter was
contested by the State of Andhra Pradesh that no damages could be awarded in respect of
sovereign functions as the establishment and maintenance of jail was part of the sovereign
functions of the State and, therefore, even if there was any negligence on the part of the Officers
of the State, the State would not be liable in damages as it was immune from any legal action in
respect of its sovereign acts. Both the contentions were accepted by the trial court and the suit
16

Prem Shankar Shukla Vs. Delhi Administration

Id
18
Id at 43
19
State of Andhra Pradesh v. Challa Ramkrishna Reddy & Ors
17

14

was dismissed. On appeal, the suit was decreed by the High Court for a sum of Rs. 1,44,000/with interest at the rate of 6 per cent per annum from the date of the suit till realization. The
Supreme Court upheld the decision of the High court.
The Supreme Court has expanded the right to personal liberty of prisoners to their right to meet
friends and family.
In the case of Sunil Batra (II) v. Delhi Administration, the Supreme Court recognized the right of
the prisoners to be visited by their friends and relatives. The court favored their visits but subject
to search and discipline and other security criteria. The court observed, Visits to prisoners by
family and friends are a solace in insulation, and only a dehumanized system can derive
vicarious delight in depriving prison inmates of this humane amenity. 20
Further, In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others 21 ,
The Supreme Court ruled that the right to life and liberty includes the right to live with human
dignity and therefore a detainee would be entitled to have interviews with family members,
friends and lawyers without severe restrictions. Court stressed upon the need of permitting the
prisoners to meet their friends and relatives as the prisoner or detainee could not move about
freely by going outside the jail and could not socialize with persons outside jail.
The court said that, Personal liberty would include the right to socialize with members of the
family and friends subject, of course, to any valid prison regulations and under Art. 14 and 21
such prison regulations must be reasonable and non-arbitrary.22
The U.S. Supreme Court in Manna v. People of Illinois 23 once said that life is not merely animal
existence. The souls behind the bars cannot be denied the same.
A prisoner, be he a convict or under-trial, does not cease to be a human being. The law provides
for humane treatment of the prisoners, recognizing them as dignified individuals. Hence the
courts in various cases have emphasized the rights of prisoners, especially the one they are most
deprived of, the right to personal liberty.

20

Sunil Batra(II) v. Delhi Administration 1980 SCC (3) 488

Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others
22
Id
23
Manna v. People of Illinois
21

15

Some of these pronouncements by the Indian Supreme Court, which emphasize the rights of
convicts and the need for treating them in conformity with those rights, are notable milestones in
the path towards finding new penological goals of a correctional and reformative prison justice
administration.
It needs to be understood that while the law takes away the prisoners right to personal liberty to
a great extent, it stops short of such heavy curtailment which may be dangerous to their survival
as dignified human beings.
They do not let the prison gates remain closed for ever against a system of humane treatment of
prisoners and against effective judicial supervision of such a system.

16

CHAPTER 1: ARTICLE 21 IN BRIEF

Article 21 provides:
No person shall be deprived of his life or personal liberty except according to procedure
established by law.
Right to life and personal liberty is the most cherished and pivotal fundamental human rights
around which the other rights of an individual revolve. It is undoubtedly the most treasured gift
of democracy to mankind. Article 21 is at the heart of the constitution.24 As per Bhagwati, J.
Article 21 embodies a constitutional value of supreme importance in a democratic society. 25
Article 21 protects two rights, i.e. life and liberty. These rights have been given paramount
importance by court.26 It is the most fundamental of all human rights and any decision affecting
human life must call for the most anxious scrutiny.27
It is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in
Chapter III of this constitution, personal liberty of man is at root of article 21 and each
expression used in this article enhances human dignity and values. It lays foundation of a society
where rule of law has primary and not arbitrary or capricious exercise of power.28
Article 21 extends to not just citizens but all persons, including aliens and prisoners.29
The words life and liberty mean more than just mere existence and right to movement. They are
compendium terms which include a variety of rights and attributes. The right to life has been
expanded to include, for example, the right to legal aid, the right to speedy trial, the right to basic
necessities in life, the right to pure and unpolluted water etc.

24

I.R. Coelho v. State of Tamil Nadu AIR 2007 SC 861

Francis Coralis v. Union Territory of Delhi, AIR 1981 SC 746
26
Kehar Singh v State of Chattisgarh AIR 2002 Chatt 14
27
Bugdaycay v Secretary of State, (1987) 1 All ER 940
28
Kartar Singh v State of Punjab (194) 3 SCC 569
29
Louis v Union of India, (1991) 3 SCJ 141 (para 13)
25

17

It is worth quoting the judgment of the Supreme Court in the case of Consumer Education and
Research Foundation v Union of India30 wherein the court observed that the jurisprudence of
personhood or philosophy of the right to life envisaged under Article 21 of the Constitution,
enlarges its sweep to encompass human personality in its full blossom with invigorated health
which is a wealth to the workmen to earn his livelihood to sustain the dignity of person and to
live a life with dignity and equality. The expression life assured in Article 21 does not connote
mere animal existence or continued drudgery through life. It has a much wider meaning which
includes right to livelihood, better stand of living, hygienic conditions in the workplace and
leisure.
The new interpretation of Article 21 in Maneka Gandhis case31 has ushered a new era of
expansion of the horizons of right to life and personal liberty. Prior to it, Article 21 was
construed in a narrow manner as a guarantee against executive action unsupported by law.
However, now, it also extends to limiting law making and while prescribing a procedure to
curtail personal liberty, it has to be just, reasonable and fair.

30
31

AIR 1995 SC 922

Maneka Gandhi v Union of India, AIR 1978 SC 597

18

Chapter 1.1 Personal Liberty under Article 21

Right to liberty has been prefixed with personal in Article 21, narrowing it down to liberty of a
person or personal freedom. According to Blackstone, right to personal liberty includes the
power of locomotion, of changing situation, or removing ones person to whatsoever place ones
inclination may direct, without imprisonment or restraint, unless by due course of law. 32
However, this liberty is not absolute and is subject to the measures of social control. Absolute
freedom can only lead to anarchy and lawlessness. Liberty itself is a gift of law and may, by
means of law, be forfeited or abridged.33
Despite the limitations that have been put on a persons personal liberty, it has been construed
widely by the courts.
In Maneka Gandhi v Union of India34, it was observed that the expression personal liberty used
in Article 21 is of the widest amplitude and it constitutes of various rights which cumulatively
constitute personal liberty of a man. Some of these have been made distinct fundamental rights in
article 19.
The judiciary has amplified the meaning of personal liberty to include all liberties of an
individual other than those which are already included in Article 19.35
These include right to locomotion, the right to travel abroad 36, come back to India37, socialize
with members of family and friends38, right of a person to speedy trial39 etc.
However where individual liberty lies in conflict with the interest of public at large, the freedom
of the individual must pave way for the greater good.40
This is where the restrictions to ones personal freedom come in. Liberty must arm itself within
the confines of law. The essence of civil liberty is to keep alive the freedom of the individual
32

Blackstones Commentaries, book I, p 134

ADM v Shivkant Shukla, AIR 1976 SC 1207
34
Maneka Gandhi v Union of India, AIR 1978 SC 597
35
Goving v State of MP AIR
36
State of Maharashtra v Prabhakar, AIR 1966 SC 424
37
Satwant v Asst Passport Officer, AIR 1967 SC 1836
38
Hussainara v Home Secy AIR 1979, SC 1390
39
Id
40
Sunil Fulchand Shah v union of India, AIR 2000 SC 1023
33

19

without the restrictions of social control which could be adjusted to the needs of the dynamic
social evolution.41
If an individual is found guilty of contravening the law, his personal liberty may be restricted
through the procedure established by law. However it is now established that even where a
person is convicted and imprisoned under sentence of court, he does not lose all fundamental
rights available to all citizens under the constitution.

41

Supra n 16

20

Chapter 2
PRISONERS RIGHTS: BACKGROUND
For long, the view has prevailed that prisoners do not enjoy any human right. Not more than 200
years ago, the attitude towards prisoners and prisons was inhuman and barbaric.
Until relatively recently, the view prevailed that a prisoner, has, as a consequence of his crime,
not only forfeited his liberty, but all his personal rights except those which the law in its
humanity accords to him.
A person convicted of a crime was considered to be legally dead. The conditions of
imprisonment and every aspect of institutional life were left to the unregulated discretion of the
prison administrators. A life with dignity in prison was a farfetched dream. A prisoner was under
the mercy of correctional administrators. He is for the time being the slave of the state." 42 This
view is not now the law, and may never have been wholly correct.43
It has taken much struggle with the state before prisoners have come to be seen as human beings.
A prisoner, owing to the conviction is not entitled to all the fundamental rights. Still, most of the
fundamental rights remain to be an enforceable reality even for prisoners or under-trials,
excluding those that cannot be enjoyed owing to the incarceration, such as the right to move
freely or the right to practice a profession44
Article 21 accompanies a prisoner or a person facing trial to prison, though in constricted terms.
The court, through various pronouncements has expanded the scope of Article 21, widening its
ambit to include those in prison. The jurisprudence behind this is that the mere fact that a person
has been convicted for an offence does not mean that he has ceased to be a human being. He
remains to be a person for the purposes of Article 21.

42

Ruffin v. Commonwealth, 62 Va. 790, 796 (1871)

Cf. In re Bonner, 151 U.S. 242 (1894).
44
Patnaik v state of AP AIR 1974 SC 2092 (para 10)
43

21

If we trace the history of development of prisoners rights, one can find the case of A.K. Gopalan
v State of Madras45. A major contention raised was that the procedure established by law, as
contained in Article 21 includes a procedure which is fair and reasonable and not any procedure
dictated by the state to deprive the citizens of their rights. However the court opined otherwise.
This meant that challenging validity of a law, which empowers the state to put a person in prison,
on the grounds of reasonableness was not a valid argument.
It was only in Maneka Gandhis46 judgment that the judiciary opened up the scope of Article 21.
Now laws could also be tested on grounds of reasonableness, opening up doors for wider
interpretations to make room for prisoner rights.

45
46

A.K. Gopalan v State of Madras

Maneka Gangdhi v UOIAIR 1978

22

Chapter 3
PRISONERS RIGHT TO PERSONAL LIBERTY AND JUDICIAL PRONOUNCEMENTS
Manekas case opened up a new horizon for prison jurisprudence. Many judicial pronouncements
after this judgment have transformed the attitude towards prisoners. As mentioned above, it is
now settled that even prisoners have access to fundamental rights subject to the constraints of
imprisonment. This has lead to a number of prison reforms being carried out through judicial
interpretation of Article 21. These rights have been enumerated below:
3.1 RIGHT TO FREE LEGAL AID AND APPEAL
The courts have over the years made efforts to make sure that justice does not remain accessible
to only the rich and the powerful but also reaches to the poor and the needy. A lot of persons
charged for offences find it difficult to engage a lawyer to defend them. This often proves to be
an impediment for providing a fair and reasonable opportunity to both the sides to present their
case, hampering the process of dispensation of justice. Legal aid offers a challenging opportunity
to the society to redress grievances of the poor and thereby law foundation of Rule of Law.
Right to free legal aid hence assumes great significance, especially in a country like India where
a huge number of under trials are below poverty line.
The court took notice of this issue in the case of M.H. Haskot v. State of Maharashtra 47, where
the Supreme Court held that the right to free legal aid is an integral part of fair procedure as in
Article 21.
The court stated, Where the prisoner is disabled from engaging a lawyer, on reasonable grounds
such as indigence or incommunicado situation, the court shall, if the circumstances of the case,
the gravity of the sentence, and if the ends of justice so require, assign competent counsel for the
prisoners defense, provided the party doesnt object to that lawyer. 48
Furthermore, the court also made it mandatory for courts to provide a copy of the judgment to
the accused so as to provide sufficient time for him to appeal.
47
48

M.H. Haskot v. State of Maharashtra ,AIR 1978 SC 1548

Id

23

This right to free legal aid is a duty cast on the government and is an implicit aspect of Article 21
in ensuring fairness and reasonableness; this cannot be termed as government charity.49
Counsel for the accused must be given sufficient time and facility for preparing his defense.
The same was reiterated in te case of Khtri v State of Bihar50
In Sukh Dass case, the court even remarked, Breach of these safeguards of fair trial would invalidate
the trial and conviction.51
3.2 RIGHT TO SPEEDY TRIAL
Perhaps the most criticism for the Indian judiciary comes from the excessive time consumed
during the course of the judicial proceedings. The system must ensure that the accused is tried in
a speedy and efficient manner.
The court said in the case of Moses Wilson v. Karluriba 52, a procedure cannot be reasonable, fair
and just unless it ensures a speedy trial for determination of the guilt of the person deprived of
his liberty.
A shocking state of affairs with regard to dispensation of justice came forward in the case of
Hussainara Khatoon (I) v. State of Bihar 53. An alarmingly large number of men and women,
including children are behind prison bars for years awaiting trial in the court of law. The offences
with which some of them were charged were trivial, which, even if proved would not warrant
punishment for more than a few months, perhaps a year or two, and yet these unfortunate
forgotten specimens of humanity were in jail, deprived of their freedom, for periods ranging
from three to ten years without as much as their trial having commenced.54
The Honble Supreme Court expressed its concern and said that, What faith can these lost souls
have in the judicial system which denies them a bare trial for so many years and keeps them
behind the bars not because they are guilty; but because they are too poor to afford bail and the
49

See Kashyap, Subhash C., Constitutional Law of India, Vol. 1, Universal Law Private Limited, New Delhi,2008,
p. 677
50
AIR 1981 SC928
51
Sukh Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991 : (1986) 2 SCC 401
52
Moses Wilson v. Karluriba AIR 2008 SC 379
53
Hussainara Khatoon(I) v. State of Bihar
54
Supra 6

24

courts have no time to try them. 55 The court brought into focus the failure of the magistrates to
respect section 167(2) of Cr.P.C. which entitles an under trial to be released from prison on
expiry of 60 days or 90 days as the case may be.
While expressing great concern over the huge number of people languishing in jails without
trials, the court in Hussainara Khatoon (II) v. Home Secretary, State of Bihar56, where the Court
while dealing with the cases of under trials who had suffered long incarceration held that a
procedure which keeps such large number of people behind bars without trial so long cannot
possibly be regarded as reasonable, just or fair so as to be in conformity with the requirement of
Article 21.
In Mantoo Majumdar v. State of Bihar57 the Apex Court once again upheld the under trials right
to personal liberty and ordered the release of the petitioners on their own bond and without
sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in
police investigation and the mechanical operation of the remand process by the magistrates
insensitive to the personal liberty of the under trials, remanded by them to prison.
In A.R. Antulay v. R.S. Nayak, a Constitution Bench of five judges of the Supreme Court dealt
with the question and laid down certain guidelines for ensuring speedy trial of offences some of
them have been listed below:
Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be tried
speedily.
Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of
investigation, inquiry, appeal, revision and retrial.
The concerns underlying the right of speedy trial from the point of view of the accused are:
The period of remand and pre-conviction detention should be as short as possible.
The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly
prolonged investigation, enquiry or trial should be minimal; and
Undue delay may well result in impairment of the ability of the accused to defend him.

55

Supra 9 at 18
Hussainara Khatoon (II) v. Home Secretary, State of Bihar
57
Mantoo Majumdar v. State of Bihar
56

25

While determining whether undue delay has occurred, one must have regard to all the attendant
circumstances, including nature of offence, number of accused and witnesses, the workload
of the court concerned.
3.3 RIGHT TO BAIL
The Supreme Court has diagnosed the root cause for long pre-trial incarceration to be the
present-day unsatisfactory and irrational rules for bail which insists merely on financial security
from the accused and their sureties.
Many of the under trials are poor and so unable to provide any financial security. Consequently
they have to languish in prisons awaiting their trials.
But incarceration of persons charged with non-bailable offences during pendency of trial cannot
be questioned as violative of Article 21 since the same is authorized by law.
In the case of Babu Singh v. State of Uttar Pradesh58, the Court held that right to bail was
included in the personal liberty under Article 21 and its refusal would be deprivation of that
liberty which could be authorized in accordance with the procedure established by law.
Anticipatory bail is a statutory right and it does not arise out of Article 21.Anticipatory bail
cannot be granted as a matter of right as it cannot be granted as a matter of right as it cannot be
considered as an essential ingredient of Article 21.

3.4 RIGHT AGAINST HANDCUFFING AND BAR FETTERS

Handcuffing and bar fetters are often seen as a regular treatment to prisoners. However, the
courts through various cases have repeatedly held that handcuffing and bar fetters must be used
very cautiously, only in such cases where it is required.
In the case of Prem Shankar Shukla v. Delhi Administration 59 the Supreme Court struck down the
provisions of the Punjab Police rules which discriminated between the rich and the poor
prisoners in determining who was to be handcuffed. The Court also held that in the absence of
58
59

Babu Singh v. State of Uttar Pradesh, AIR 1978 SC 527

Prem Shankar Shukla Vs. Delhi Administration

26

the escorting authority recording why the prisoner is being put under handcuffs, the procedure of
handcuffing is a violation of Article 21
The court observed, To handcuff is to hoop harshly and to punish humiliatingly. The minimum
freedom of movement, under which a detainee is entitled to under Art.19, cannot be cut down by
the application of handcuffs. Handcuffs must be the last refuge as there are other ways for
ensuring security.60
Further, it was held that, We clearly declare and it shall be obeyed from the Inspector General of
Police and Inspector General of Prisons to the escort constable and the jail warder-that the rule
regarding a prisoner in transit between prison house and court house is freedom from handcuffs
and the exception, under conditions of judicial supervision we have indicated earlier, will be
restraints with irons to be justified before or after. We mandate the judicial officer before whom
the prisoner is produced to interrogate the prisoner as a rule, whether he has been subjected to
handcuffs or other 'irons' treatment, and if he has been, the official concerned shall be asked to

explain the action forthwith in the light of this judgment.61

3.5 RIGHT AGAINST PUBLIC HANGING

60
61

Id
Id at 43

27

The Rajasthan HC, by an order directed the execution of the death sentence of an accused by
hanging at the stadium ground of Jaipur. On receiving this judgment, the SC in the case of
Attorney Gen of India v Lachma Devi62 held that the directions of the high court for the public
hanging of the accused were unconstitutional and against 21. It also said that public hanging
would be a barbaric practice and though the offence committed by the accused was also barbaric,
it would be a shame on the civilized society to reciprocate that.
3.6 RIGHT AGAINST DELAYED EXECUTION
Death sentence convicts are very often sentenced to death very early as compared to their
execution. This poses a serious question on the credibility of a system that puts a prisoner
sentenced to death behind the bars for unreasonably long durations, causing deep mental anguish
to them as they wait for their death every day.
In T. N, Vatheeswaram v. State of Tamil Nadu 63, the same question was put before the Supreme
Court. It said, that delay in the execution of death sentence exceeding 2 years is sufficient to
invoke Article 21 to commute death penalty into life imprisonment. The court said that the cause
of delay is immaterial.
In Sher Singh v State of Punjab64 the court stressed that long wait for death sentence is unjust,
unfair and unreasonable procedure and attracts the violation of article 21. However, this cannot
be taken to be the rule of law and all cases of such nature that come before the court must be
decided on their facts.

62
63
64

AIR 1986 SC 467

AIR 1981 SC 643
AIR 1981 SC 643

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CHAPTER 4: OBSERVATIONS AND FINDINGS

Prisoners and prisoners rights have come a long way, thanks to interventions by a vigilant and
proactive judiciary. From inhuman and barbaric practices and punishments, the state and the
society have come to recognize the human in prisoners. However, the evolution of the concept of
prisoners rights is relatively recent.
Some of the pronouncements by the Indian Supreme Court, which emphasize the rights of
convicts and the need for treating them in conformity with those rights, are notable milestones in
the path towards finding new penological goals of a correctional and reformative prison justice
administration. They do not let the prison gates remain closed for ever against a system of
humane treatment of prisoners and against effective judicial supervision of such a system. It was
Prabhakarm Pandurang which inspired and showed the way in the spate of cases on condition of
detention in the late seventies and early eighties. Since then, there has been no looking back.
Various cases have furthered the concept of prisoners rights in India.
The case of M. H. Hascot granted the under trials the right to free legal aid. Through various
cases like Moses Wilson, A.R. Antule and Hussainara Khatoon (I) and (II), the Supreme Court
has emphasized the right to speedy trial and that a system that keeps persons behind bars without
trial can, in no, way can match the requirement of Article 21. These cases, specifically Babu
Singh v State of U.P, have also laid emphasis on effectively implementing the bail system.
Once seen as as regular practice to prisoners, handcuffing has invited strict remarks from the
Supreme Court. In the landmark case of Sunil Batra v Delhi Administration, the Supreme Court
rebuked the jail authorities and categorically ordered that the jail authorities will be held liable
for any excess that is not authorized by law. The court also took a harsh stand on solitary
confinement and held it to be against Article 21 until it is very necessary.
Delayed execution has also been found to be against Article 21 in the case of T. N,
Vatheeswaram v. State of Tamil Nadu.
All these cases have widened the scope of prisoners rights, promising those behind the bars a
fair treatment, free from abuse and harassment.

29

It has lead to a new jurisprudence for prisoners and their rights ensuring a better system and
correctional mechanism for prisoners.
CHAPTER 5: CONCLUSION AND SUGGESTIONS
Various cases in the recent past have lead to the evolution of the concept of prisoners rights.
Article 21 has been widely construed by the courts to make room for prisoners rights. Even the
prison gates do not remain closed for Article 21; it accompanies the prisoners inside the prison
also.
In the light of the cases discussed above, it has become clear that the law now provides for a
number of rights to those behind the bars, giving them more than one way to enjoy the residue of
their right to personal liberty. This extends to, but in no way is limited to the right to speedy trial,
right to free legal aid, right against handcuffing, bar fetters, solitary confinement, delayed
execution, public hanging, right to bail and right to meet friends and family.
It is therefore evident that even the procedure established by law can never curtail the right to
personal liberty of a prisoner, or a person facing trial. Thus, the hypothesis that The procedure
established by law absolutely curtails the right to personal liberty in India is negated.
Yet, there is little doubt that the fundamental rights of prisoners and under trials see gross
violation at the hands of the police officers and at times, the judiciary itself. Many rights have
been provided to the prisoners under Article 21 to protect their interests. However, these rights
are hardly incorporated into practice.
The report of human Rights watch in 1991 validates the same. It states, At first we found the
contradictions that we encountered deeply puzzling. What could account for such extensive
police lawlessness in a functioning democracy with a strong commitment to the rule of law and
with the institutional apparatus to fulfill that commitment? Why do such abuses persist in a
country in which the judiciary has included such strong advocates of human rights as former
Supreme Court Justices Krishna Iyer and P.N. Bhagwati, both of whom were particularly
concerned with the protection of detainees and prisoners? How to explain the avowedly unequal
treatment of those who run afoul of the law in a country with such egalitarian commitments? To
add to the mystery, why does a country with such a plethora of vigorous nongovernmental

30

organizations and with a strong national awareness of civil liberties lack any significant domestic
organization with a professional staff that operates nationwide and that is capable of challenging
police abuses, or abusive prison conditions or of promoting human rights generally.65
These questions stare the face of the Indian democratic setup, awaiting responsible answers.
Any significant improvement in this situation can happen only if the prisoners are made aware of
their rights. Providing free legal aid is an important step in ensuring a fair trial and also making
the prisoners and under trials aware of their rights. This can be taken up by NGOs, social
workers and law students or graduates.
Judges must also play their part in ensuring the rights of the prisoners. They must enquire about
any excesses, physical or mental committed by the jail authorities on the prisoner. Also, those
who cannot afford bails must be released on own bond, pursuant to various Supreme Court
judgments in this regard.
However, the major area of improvement lies in sensitizing the police officials and taking strict
action on those who violate the sacred fundamental rights available to the prisoners.
This research project, being a doctrinal study, has its own limitations. A future study in this area
can be done by taking into account the actual circumstances that exist in the prisons of India,
which require field visits and are difficult to study through doctrinal means.

65

Herman Schwartz(1991), Prison Conditions in India, Human Rights Watch, 1991, pg iii

31

CASES REFERRED:
1. I.R. Coelho v. State of Tamil Nadu AIR 2007 SC 861
2. Francis Coralis v. Union Territory of Delhi, AIR 1981 SC 746
3. Kehar Singh v State of Chattisgarh AIR 2002 Chatt 14
4. Bugdaycay v Secretary of State, (1987) 1 All ER 940
5. Kartar Singh v State of Punjab (194) 3 SCC 569
6. Louis v Union of India, (1991) 3 SCJ 141 (para 13)
7. Ruffin v. Commonwealth, 62 Va. 790, 796 (1871)
8. ADM v Shivkant Shukla, AIR 1976 SC 1207
9. Maneka Gandhi v Union of India, AIR 1978 SC 597
10. Goving v State of MP AIR
11. State of Maharashtra v Prabhakar, AIR 1966 SC 424
12. Satwant v Asst Passport Officer, AIR 1967 SC 1836
13. Hussainara v Home Secy AIR 1979, SC 1390
14. Sunil Fulchand Shah v union of India, AIR 2000 SC 1023, 151 U.S. 242 (1894).
15. Patnaik v state of AP AIR 1974 SC 2092 (para 10)
16. M.H. Haskot v. State of Maharashtra ,AIR 1978 SC 1548
17. Babu Singh v. State of Uttar Pradesh, AIR 1978 SC 527

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