Rights of Prisoners

Rights of Prisoners


“In our world prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from drift-wood juveniles to heroic dissenters”                                               

– V.R. Krishna Iyer (J)

India is a country having the largest constitution in the world which provides a variety of rights to the people. In this assortment of rights, a category of rights are given to the people undergoing detention. Health is a basic characteristic of human rights and therefore it cannot be excluded even from the life of a person under detention. Right to live with human dignity, enshrined in Article 21, derives from the directive principles of state policy and therefore includes protection of health[1]. Further, it has also been held that the right to health is integral to the right to life and the government has a constitutional obligation to provide health facilities[2].

Rights of Prisoners

A conviction for a crime does not reduce the person into a non-person, whose rights are subject to the whim of the prison administration[3]. “Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to “practise” a profession.

A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law”[4].

These propositions made it very clear that “human dignity is a dear value of our constitution not to be bartered away for mere apprehensions entertained by jail officials[5]

Hence, in the present article, we will deal with pre and post-trial rights which are provided to the prisoners in India.

Read: Joint Liability in Criminal Law- Joint Criminal Liability


  1. Knowledge of the accusation:

The Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) under Sections 228, 240, 246, 251 provides that when an accused person is brought before the court for trial, the particulars of the offense of which he is accused shall be stated to him.

In case of serious offenses, the court is required to frame in writing a formal charge and then read and explain the charge to the accused person.  A charge is not an accusation in abstract, but a concrete accusation of an offense alleged to have been committed by a person. The right to have precise and specific accusation is contained in Section 211, Cr. P.C.

Rights of Prisoners

  1. Right to open trial:

Fair trial also requires public hearing in an open court. The right to a public hearing means that the hearing should as a rule is conducted orally and publicly, without a specific request by the parties to that effect. A judgment is considered to have been made public either when it was orally pronounced in court or when it was published, or when it was made public by a combination of those methods.

In the case of Naresh Sridhar Mirajkar v. State of Maharashtra[6]the apex court observed that the right to open trial must not be denied except in exceptional circumstances. High court has inherent jurisdiction to hold trials or part of a trial in camera or to prohibit publication of a part of its proceedings.                                            Rights of Prisoners

In State of Punjab v. Gurmit[7], the court held that the undue publicity is evidently harmful to the unfortunate women victims of rape and such other sexual offenses. Such publicity would mar their future in many ways and may make their life miserable in society. Section 327(2) provides that the inquiry into and trial of rape or an offense under Section 376, 376-A, 376-B, 376-C or 376-D of the Indian Penal Code shall be conducted in camera.

  1. Aid of counsel:

The requirement of fair trial involves two things: a) an opportunity to the accused to secure a counsel of his own choice, and b) the duty of the state to provide a counsel to the accused in certain cases. The Law Commission of India in its 14th Report has mentioned that free legal aid to persons of limited means is a service which a Welfare State owes to it citizens.

In India, right to counsel is recognized as fundamental right of an arrested person under article 22(1) which provides, inter alia, no person shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. Sections 303 and 304 of the Code are manifestation of this constitutional mandate.                          Rights of Prisoners

In Khatri v. State of Bihar[8] the court held that the accused is entitled to free legal services not only at the stage of trial but also when first produced before the Magistrate and also when remanded.

  1. Expeditious trial:

Speedy trial is necessary to gain the confidence of the public in judiciary. Delayed justice leads to unnecessary harassment. The concept of speedy trial is an integral part of article 21 of the Constitution. The right to speedy trial begins with actual restraint imposed by arrest and consequent incarceration, and continues at all stages namely, the stage of investigation, inquiry, trial, appeal and revision.

In Hussainara Khatoon (IV) v. State of Bihar[9]  the Supreme Court declared that speedy trial is an essential ingredient of ‘reasonable just and fair’ procedure guaranteed by article 21 and it is the constitutional obligation of the state to set up such a procedure as would ensure speedy trial to the accused. The state cannot avoid its constitutional obligation by pleading financial or administrative inadequacy.

Rights of Prisoners

In Ranjan Dwivedi vs C.B.I Tr.Director General[10]the accused was tried for the assassination of Shri. L.N. Mishra, the then Union Railway Minister. The trial was pending for the past 37 years. In view of delay in completion of trial for more than 37 years from date of the trial the Petitioners presented Writ Petitions praying for quashing of the charges and trial. But it was held that the trial cannot be terminated merely on the ground of delay without considering the reasons thereof. Hence the petition was dismissed.

Read: Most Important Legal Terms

  1. Protection against illegal arrest:

Section 50 provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest. The duty of the police when they arrest without warrant is to be quick to see the possibility of crime, but they ought to be anxious to avoid mistaking the innocent for the guilty.

The burden is on the police officer to satisfy the court before which the arrest is challenged that he had reasonable grounds of suspicion. In Pranab Chatterjee v. State of Bihar[11] the court held that Section 50 is mandatory. If particulars of offence are not communicated to an arrested person, his arrest and detention are illegal. The grounds can be communicated orally or even impliedly by conduct.

Rights of Prisoners

Section 57 of Cr.P.C. and Article 22(2) of Constitution provides that a person arrested must be produced before a Judicial Magistrate within 24 hours of arrest. In State of Punjab v. Ajaib Singh[12] the court held that arrest without warrant call for greater protection and production within 24 hours ensures the immediate application of judicial mind to the legality of the arrest.

The decisions of the Supreme Court in Joginder Kumar v. State of Uttar Pradesh[13] and D.K. Basu v. State of West Bengal[14], were enacted in Section 50-A making it obligatory on the part of the police officer to inform the friend or relative of the arrested person about his arrest and also to make an entry in the register maintained by the police. This was done to ensure transparency and accountability in arrest

  1. Proceedings in the presence of the accused:

For the conduct of a fair trial, it is necessary that all proceedings related to the case should take place in the presence of the accused or his counsel. The underlying principle behind this is that in a criminal trial the court should not proceed ex parte against the accused person. It is also necessary for the reason that it facilitates the accused to understand properly the prosecution case and to know the witnesses against him so that he can prepare his defence.                                Rights of Prisoners

Section 273 of the Code provides that all evidence taken in the course of the trial shall be taken in the presence of the accused or if the personal attendance of the accused is dispensed with then the evidence shall be taken in the presence of his pleader.

For fair trial, the accused person has to be given full opportunity to defend himself. This is possible only when he should be supplied with the copies of the charge sheet, all necessary documents pertaining to the investigation and the statements of the witnesses called by the police during investigation. Section 238 makes it obligatory on the Magistrate to supply copies of these documents to the accused free of cost.

Article 14 of the Constitution ensures that the parties be equally treated with respect to the introduction of evidences by means of interrogation of witnesses. The prosecution must inform the defence of the witnesses it intends to call at trial within a reasonable time prior to the trial so that the defendant may have sufficient time to prepare his/her defense. In fairness to the accused, he or his counsel must be given full opportunity to cross-examine the prosecution witness.

Rights of Prisoners

In Badri v. State of Rajasthan[15], the court held that where a prosecution witness was not allowed to be cross-examined by the defense on a material point with reference to his earlier statement made before the police, his evidence stands untested by cross-examination and cannot be accepted as corroborating his previous statement.

Also Read: The POCSO Act – A Fallacious Solace?

  1. Right to bail:

By virtue of Section 436 the accused can claim bail as a matter of right in cases which have been shown as bailable offenses in the First Schedule to the Code. Bail is basically release from restraint, more particularly, release from custody of the police. An order of bail gives back to the accused freedom of his movement on condition that he will appear to take his trial. If the offense is bailable, bail will be granted.

Rights of Prisoners

But bail under Section 389(1) after conviction is not a matter of right whether the offense is bailable or non-bailable. If no charge -sheet is filed before the expiry of 60/90 days as the case may be; the accused in custody has a right to be released on bail. In non-bailable offenses, the Magistrate has the power to release on bail without notice to the other side if charge sheet is not filed within a period of sixty days. The provision of bail to women, sick and old age persons is given priority subject to the nature of the offense.

  1. Prohibition on double jeopardy:

Section 300 of the Code provides that persons once convicted or acquitted not to be tried for the same offense or on the same facts for any other offense. Plea of double jeopardy is not applicable in case the proceedings for which the accused is being tried are distinct and separate from the offense for which the accused has already been tried and convicted.

In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao[16] the Supreme Court differentiated between Section 300(1) of Cr. P.C. and article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that ‘no one can be prosecuted and punished for the same offense more than once’, Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offense or even for a different offense but on the same facts. Therefore the second prosecution would be barred by Section 300(1) of Cr.P.C.

In S.A. Venkataraman v. Union of India[17] the appellant was dismissed from service as a result of an inquiry under the Public Servants (Inquiries) Act, 1960, after the proceedings were before the Enquiry Commissioner. Thereafter, he was prosecuted before the Court for having committed offenses under the Indian Penal Code, and the Prevention of Corruption Act. The Supreme Court held that the proceeding taken before the Enquiry Commissioner did not amount to a prosecution for an offense. It was in the nature of a fact-finding to advise the Government for disciplinary action against the appellant. It cannot be said that the person has been prosecuted.

In Leo Roy Frey v. Superintendent, District Jail[18], the accused was prosecuted and punished under the Sea Customs Act, 1878. Later on, he was prosecuted under Section 120 of the Indian Penal Code, 1860 for conspiracy to commit the act for which he was already convicted under the Sea Customs Act, 1878. It was held that the second prosecution was not barred by Article 20(2), since it was not for the same offense. Committing an offense and conspiracy to commit that offense has been held to be two distinct offences.

  1. Right against self-incrimination:

Clause (3) of Article 20 provides: “No person accused of any offence shall be compelled to be a witness against himself.” This Clause is based on the maxim nemo tenetur prodere accussare seipsum, which means that “no man is bound to accuse himself.

In State of Bombay vs. Kathi Kalu[19], the Supreme Court held that “to be a witness” is not equivalent to “furnishing evidence”. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in the controversy, but which do not contain any statement of the accused based on his personal knowledge. Compulsion means duress which includes threatening, beating or imprisoning the wife, parent or child of a person. Thus where the accused makes a confession without any inducement, threat or promise article 20(3) does not apply.

The Apex Court in Selvi v. State of Karnataka[20] drew following conclusions:

  • The taking and retention of DNA samples which are in the nature of physical evidence, does not face constitutional hurdles in the Indian context.
  • Subjecting person to narco- analysis, Polygraphy and Brain fingerprinting tests involuntarily, amounts to forcible interference with person’s mental processes, and hence violates the right of privacy as well as Article 20(3).
  • A person administered the narco-analysis technique is encouraged to speak in a drug-induced State and there is no reason why such an act should be treated any differently from verbal answers during an ordinary interrogation.
Rights of Prisoners


  1. Lawful punishment:

Article 20(1) explains that a person can be convicted of an offense only if that act is made punishable by a law in force. It gives constitutional recognition to the rule that no one can be convicted except for the violation of a law in force. In Om Prakash v. State of Uttar Pradesh[21], offering bribe was not an offense in 1948. Section 3 of the Criminal Law (Amendment) Act, 1952 inserted Section 165A in the Indian Penal Code, 1860, declaring offering bribe as punishable. It was held that the accused could not be punished under Section 165A for offering bribe in 1948.

Article 20(1) provides that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense. It prohibits the enhancement of punishment for an offense retrospectively. But article 20(1) has no application to cases of preventive detention.

  1. Right to human treatment:

A prisoner is also a human being. Therefore, prison system must aim at reformation. In prison, treatment must be geared to psychic healing, release of stress, restoration of self-respect apart from training to adapt oneself to the life outside. Every prisoner has the right to a clean and sanitized environment in the jail, right to be medically examined by the medical officer, right to visit and access by family members, etc.

  1. Right to file appeal:

Section 389(1) empowers the appellate court to suspend execution of sentence, or when the convicted person is in confinement then to grant bail. Existence of an appeal is a condition precedent for granting bail. Bail to a convicted person is not a matter of right irrespective of whether the offence is bailable or non-bailable and should be allowed only when after reading the judgment and hearing the accused it is considered justified.


A right of fair trial is derived from Article 21 of the Constitution. Therefore, whenever there is a case before the court, the court must always look for the evidences and the other circumstances in order to give a fair trial. Though, there are no specific legislations for the rights of the accused or prisoners in India but the Hon’ble Supreme court have time and again recognized several rights in line with the fundamental rights guaranteed by the Constitution.

It is important to understand that though there are various rights available, its enforcement is equally essential in order to impart complete justice. Without enforcement, the very idea of granting these rights will be defeated.

This Article is written by Mr. Manthan Sharma, 8th Semester, B.B.A. LL.B (Hons.) student of Unitedworld School of Law, Karnavati University, Gandhinagar.


[1] Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802)

[2] State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83

[3] AIR 1983 Ker 261

[4]  D. B. M. Patnaik v. State of A. P., AIR 1974 SC 2092

[5] Kishore Singh Ravinder Dev v. State of Rajasthan A.I.R. 1981 S.C 625

[6] AIR 1967 SC 1

[7] (1996) 2 SCC (Cri) 316

Rights of Prisoners

[8] (1981) 2 SCC 493

[9] (1980) 1 SCC 98

[10] (2012) 8 SCC 495

[11] (1970) 3 SCC 926

[12] AIR 1953 SC 10

[13] 1994 SCC (4) 260

[14] 1997 (1) SCC 416

[15] AIR 1976 SC 560

[16] AIR 1956 All 633

[17] AIR 1954 SC 375

[18] AIR 1958 SC 119

[19] AIR 1961 SC 1808

[20] AIR 2010 SC 1974

[21] AIR 1957 All 388

Rights of Prisoners

Leave a Comment

Adblock Detected

Please consider supporting us by disabling your ad blocker

Refresh Page