October 4, 2022

Prison torture and the shield of Article 21

Prison torture became the normality of prison system in India. Due to slow system of justice, people validated the police beating in prison for instant justice or vengeance. But sometimes, due to pressure of politics and high officials of police, police cross its boundary and beat the person till death.

Indian laws and courts tried to stop such barbarism behind the wall of prison but could not succeed thoroughly, however, in due course, people sensitized about their rights in prison. Honorable Supreme Court issued directions time to time and helped to change the prison system and the existence of prisoners in prison.

Most of the victim of prison torture are poor

There is little doubt that barbarities like bar fetters and hand-cuffs were recklessly being practised either on account of ignorant unconscionableness or wilful viciousness in several detention camps.

In Sunil Batra’s Case (1980), while admitting the letter of prisoner as a habeas Corpus petition, Iyer Krishna J. noticed that-

“Many of the victims are poor, mute, illiterate, desperate and destitute and too distant from the law to be aware of their rights or ask for access to justice, especially when the running tension of the prison and the grisly potential for zoological reprisals stare them in the face. So it is for the court to harken when humanity calls, without waiting for particular petitions. Like class action, class remedies have pro bono value.

 The court must not wait for a stray petition from some weeping inmate and give the little person a little relief in the little case but give the nation, its governments, prison establishments and correctional departments, needed guidance and also fill with hope the hearts of those who cherish human rights that the courts are, after all, sentinels on the qui vive. Law is what law does and court, if anything, are constitutional in action.”

The comment of Ralph Ellison

Ralph Ellison’s picture of the American Black has relevance for the prisoner here:

“I am an invisible man….I am a man of substance, of flesh and bone, fibre an liquids-and I might even be said to possess a mind. I am invisible, understand, simply because people refuse to see me …. When they approach me they see only my surroundings, themselves, or figments of their imagination-indeed, everything and anything except me.

The invisibility to which I refer occurs because of a peculiar disposition of the eyes of those with whom I come in contact. A matter of construction of their inner eyes, those eyes with which they look through their physical eyes …upon reality….You wonder whether you are not simply a phantom in other people’s minds….You ache with the need to convince yourself that you do exist in the real world, that you’re a part of all the sound and anguish, and you strike out with your fists, you curse and you swear to make them recognise you. And, alas, it is seldom successful.”

Legal illiteracy about prisoner’s Rights

There is widespread prevalence of legal illiteracy even among lawyers about the rights of prisoners. Access to law postulates awareness of law and activist awareness of legal rights in the condition for seeking court justice.

Law in the books and in the courts is of no help unless it reaches the prisoner in understandable language and available form. To know the law is the first step to be free from fear of unlaw. Prisoners are peculiarly and doubly handicapped.

For one thing, most prisoners belong to the weaker segment, in poverty, literacy, social station and the like.

Secondly, the prison house is a walled-off world which is incommunicado for the human world, with the result that the bonded inmates are invisible, their voices inaudible, their injustices unheeded. So it is imperative, as implicit in Art. 21 that life or liberty shall not be kept in suspended animation or congealed into animal existence without the freshing flow of air, procedure.

The meaning of life under Article 21

Article 21 was that-

“No person shall be deprived of his life and personal liberty except according to procedure established by law.”

‘The meaning of ‘life’ given by Field J., approved in Kharak Singh’ and Maneka Gandhi:

“Something more than mere animal existence. The inhibition against its deprivation extended to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm, or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.”

Therefore, inside prisons are persons and their personhood, if crippled by law-keepers turning law-breakers, shall be forbidden by the Writ of this Court from such wrong doing. Fair procedure, in dealing with prisoners, therefor, calls for another dimensions of access to law-provision, within easy reach, of the law which limits liberty to persons who are prevented from moving out of prison gates.

It behoves Government to insist on the professional requirement, for warders and wardens, of a hearty familiarity with the basics of Prison Law. Rights jurisprudence is important but becomes an abstraction in the absence of remedial jurisprudence. Law is not an omnipotence in the sky but a loaded gun which, when triggered by trained men with ballistic skill, strikes the offending bull’s eye.

Sentence of court does not mean to deprive from every pleasure of earth

No prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court. All other freedoms belong to him to read and write, to exercise and recreation, to meditation and chant, to creative comforts like protection from extreme cold and heat, to freedom from indignities like compulsory nudity, forced sodomy and other unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self- expression, to acquire skills and techniques and all other fundamental rights tailored to the limitations of imprisonment.

Chandrachud J, long ago, spelt out the position and that also affirmed by Iyer Krishna J. in Sunil Batra case:

“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.”

The problem of law

The problem of law, when it is called upon to defend persons hidden by the law, is to evolve a positive culture and higher consciousness and preventive mechanisms, sensitized strategies and humanist agencies which will bring healing balm to bleeding hearts.

Punishment to prisoner should meet the requirement of Article 21

Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Art. 21 is satisfied.

There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary, under Article 14, if it is dependent on unguided discretion, unreasonable, under Art. 19 if it is irremediable and unappealable and unfair, under Art. 21 if it violates natural justice.

The Supreme Court in Sunil Batra’s case recognised the difficulty to approach the court-

“The Court is always ready to correct injustice but it is no practical proposition to drive every victim to move the court for a writ, knowing the actual hurdles and the prison realities. True, technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found; still, the awe and distance of courts, the legalese and mystique, keep the institution unapproachable.

More realistic is to devise a method of taking the healing law to the injured victim. That system is best where the remedy will rush to the injury on the slightest summons. So, within the existing, dated legislation, new meanings must be read.

Of course, new legislation is the best solution, but when lawmakers take for too long for social patience to suffer, as in this very case of prison reform, courts have to make-do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far away marble architecture.”

The vintage provisions legal remedies

Under prison act 1900, primari1y, the prison authority has the duty to give effect to the court sentence.[1]

To give effect to the sentence means that it is illegal to exceed it and so it follows that a prison official who goes beyond more imprisonment or deprivation of locomotion and assaults or otherwise compels the doing of things not covered by the sentence acts in violation of Art. 19.

Punishments of rigorous imprisonment oblige the inmates to do hard labour, not harsh labour and so a vindictive officer victimising a prisoner by forcing on him particularly harsh and degrading jobs, violates the law’s mandate.

For example, a prisoner, if forced to carry night soil, may seek a habeas writ.

‘Hard labour’ in s. 53 has to receive a humane meaning. A girl student or a male weakling sentenced to rigorous imprisonment may not be forced to break stones for nine hours a day. The prisoner cannot demand soft jobs but may reasonably be assigned congenial jobs. Sense and sympathy are not enemies of penal asylum.

conclusion

justice Krishna Iyer in Sunil Batra case said that- “the judges are guardians of prisoners’ rights because they have a duty to secure the execution of the sentences without excesses and to sustain the personal liberties of prisoners without violence on or violation of the inmates’ personality.”

George A. Ellis quotes a prisoner’s letter:

“You cannot rehabilitate a man through brutality and disrespect…If you treat a man like an animal, then you must expect him to act like one. For every action, there is a reaction…And in order for an inmate, to act like a human being you must trust him as such. You can’t spit in his face and expect him to smile and-say thank you.”


[1] . (See for e.g. SS. 15 and 16 of the Prisoners Act, 1900).