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Abstract

Each and every individual is equal, and thus, enjoys equal rights in the eyes of law and must
be treated equally. Human rights are important for the survival of every individual. The
freedoms, immunities and benefits that, according to modern values (especially at an
international level), all human beings should be able to claim as a matter of right in the
society in which they live1 are considered to be basic human rights. In the same way, each
and every individual has duties & obligations towards the state and must perform his duties.
By the collaboration of these rights and duties, the state machinery works. The state of India
provides to its citizens various rights under Part III of the Constitution of India. Part III deals
with rights such as right to equality (Art 14-18), right to freedom (Art 19-22), right against
exploitation (Art 23-24), right to freedom of religion (Art 25-28), cultural and educational
rights (Art 29-31) and right to constitutional remedies (Art 32). The rights relating to life,
liberty, equality and dignity of the individual guaranteed by the constitution or embodied in
the International Covenants and enforceable by the Courts of India 2 are considered to the
basic rights of an individual. The present essay will look upon Article 21 of the constitution
and interpretation of it with special reference to a particular category or class people.

The following essay is in two parts. The essay begins with the essence of Article 21 that is
enshrined in the Part III of the Constitution of India and what Article 21 is, then it talks and
illustrates the different rights that are available or has to be granted to the prisoners.

1
Black law dictionary, 8th, Edition.2
2
Protection of Human Rights Act, 1993 (10 of 2004), S. 2(d)

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Article 21 of the Constitution of India enumerated in Part III states: “Protection of life and
personal liberty- No person shall be deprived of his life or personal liberty except according
to procedure established by law.” For clear and crystal understanding of this article the article
can be broken and studied in detail in four major parts as discussed below:

 No person
 Protection of life
 Protection of personal liberty
 Except according to procedure established by law

No Person- The phrase no person includes each and every individual within the territory of
India. All the citizens as well as the non-citizens are included within the ambit of no person.
The state has the duty to protect the life and liberty of the non-citizens as well.3 According to
the above observation made by the Hon’ble Supreme Court of India, now, it is the duty of the
state to ensure right to life and personal liberty to every individual irrespective of the fact that
she/he is a citizen of India or a non-citizen. It is important on the part of the state to ensure
that the right is granted to them.

Protection of life- The phrase protection of life includes the natural life of an individual.
Article 21 states that the state must ensure the right to life to all the citizens and non-citizens.
In a very landmark and ancient case, i.e., Munn v. Illinois,4 Field J, had observed that “By the
term “life”, as here used, something more is meant than mere animal existence. The
inhibition extends 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.”

A similar observation was also made by Bhagwati J. in the case of Francis Coralie Mullin v.
UT of Delhi.5 He observed that life, not only includes life, but it also includes a life with
dignity. The goal behind this provision is not a mere animal like existence of a being but a
life that is worth living. The same was observed by the Hon’ble court for the cases of
euthanasia as well. It was observed that if a person is in permanent vegetative state (PVS)
condition, then he may be granted passive euthanasia because the purpose of the law is not

3
National Human Rights Commission v. State of Arunachal Prasad, (1996)1SCC742
4
94US113(1877)
5
(1981)1SCC608

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mere existence but a life with dignity.6 Similarly, the term has been interpreted at various
instances and in relation to various subjects and topics but the paper will take into account
only some of the aspects.

Protection of personal liberty- The law states that it is the duty of the state and its organs to
have a look that there is no infringement on the personal liberty of any citizen or non-citizen
within the territorial limits of the country. The term “personal liberty” does not mean merely
the liberty of the body, i.e., freedom from physical restraint or freedom from confinement
within the bounds of the prison, but it means much more than that.7 The court ruled that the
term “personal liberty” is used as a compendious term to include within itself all the varieties
of rights which go to make up the “personal liberty”. 8 It has also been observed that strict
boundaries of ‘personal liberty’ cannot be identified but at the same time mandates that such
liberty must also accommodate public interest.9

The ambit of personal liberty is so wide that it may accommodate everything within its
purview. May it be the right to get pregnant or make reproductive choices, 10 or right of
detune to meet his family members,11or right to travel abroad and, thus, obtain passport,12 or
any other thing of that kind, they all come within the purview of “personal liberty”.

Except according to procedure established by law- The phrase “except according to


procedure established by law” plays a very important role in the following paper and involves
a very strict interpretation of the provision. It extends to both procedural as well as
substantive law. It means that if the law feels so, then it can restrict the right to life and
personal liberty of any individual. But the phrase must answer the test of reasonableness and
should be in conformity with principles of natural justice.13 According to the principles of
natural justice, every individual should be given justice and it is the right of every individual
to get justice. The word ‘procedure’ for purpose of Article 21 has to be reasonable, fair and
just.14 It states that if any person wants to restrict the life and liberty of other individual, then
they can only do it if the law permits them. The court also observed no individual can be

6
Aruna Ramachandra Shanbaug v. Union of India, (2011)4SCC454
7
Jain, M.P., Indian Constitutional Law, p. 1190
8
Kharak Singh v. State of Uttar Pradesh, (1964)1SCR332
9
Suchita Srivastava v. Chandigarh Administration, (2009)9SCC1
10
Ibid.
11
Francis Carolie v. Union Territory of Delhi, (1981)1SCC608
12
Satwant Singh v. A.P.O., (1967)3SCR525
13
M. Nagrajan v. Union of India, (2006)8SCC212.
14
Maneka Gandhi v. Union of India, (1978)1SCC248, See also Olga Tellis v. Bombay Municipal Corporation,
(1985)3SCC545 p.196-197

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deprived of the right to life under any circumstances. It is an absolute right and cannot be
taken away by any means.

Till now we have only analysed the provisions relating to Article 21 of the Constitution of
India. We need to think upon the issue as to when does the state has the right to take away
our right? There can only be a single instance when can a state take away the rights of an
individual i.e., in case we have taken away the right of some other individual by way
committing a crime and depriving him of his rights. The world looks down upon those who
come in this category. They are usually referred to as prisoner’s or convicts. Since there is
Judicial System for the protection of the law-abiding members from the law breakers in the
society so they have a provision of jail or the prisons for those who breaks the law. But this
doesn’t imply that they are not individuals and they don’t have any right.

Now moving further, we will discuss the implication of Article 21 from the view of
prisoner’s right. The term prisoner’s right refers to the rights of the prisoners, may it be
convicted prisoner or under-trial prisoner. Now, we need to ponder for a while as to why
there is a need for the rights of prisoner’s? There comes the important question do these
prisoner’s should also have some rights? Are they capable of having any rights? Why should
the state ensure the right of those who already have deprived a section of people of their
rights? Is it just on the part of state to ensure rights to the prisoners as well?

The Hon’ble Supreme Court of India has strictly interpreted the Article 21 and has advanced
the human rights jurisprudence for maintaining human dignity by protecting and preserving
the prisoners’ rights and has also developed that violation of any such right granted to the
prisons violates the provisions of the Article 14 which states “Right to equality and Equal
protection of law.” The Prison Act, 1894 and the Criminal Procedure Code also deals with
the rights of the prisoners.

This essay deals with some aspects of the rights of such people and will also try to analyse as
to what is the stand of various courts of the country in regard of the same. Furthermore, the
essay also deals as to how it was observed by various courts in various judgements, the
importance of rights of prisoner’s as well. The Supreme Court of India in various cases
namely Maneka Gandhi15, M.H.Hoskot16, Sunil Batra (1)17 took the view that the provisions

15
Maneka Gandhi v. Union of India, (1978)1SCC248
16
17
Sunil Batra vs. Delhi Administration – AIR 1978 SC 1675

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of the Article 21 must be given the widest possible interpretation and laid down that though
not specifically mentioned but Right to free Legal Aid, Right to Speedy Trial, Right to have a
talk with friend, relative and lawyer, Right to live with Human dignity, etc. are the
fundamental rights under the Article 21 of the Constitution of India. With this the Supreme
Court has widened the scope and has held that the protection should be granted to the
prisoners and thus safeguarding their fundamental rights.

Article 21 of the Indian Constitution guarantees to all its citizens the right to life and personal
liberty. Article 21 includes the word “no person”. It clearly indicates that the right is granted
to each and every citizen whether it is under the police custody.18 It shows us that the right is
available to each and every individual including convict as well. Bhagwati J. once observed
that the right to life does not merely mean life, it means right to life with dignity. A person
who has to undergo torture on a regular basis cannot be said to be living the life with dignity.
The prisoners have Rights against the inhuman treatment of Prisoners as enshrined and laid
down by the Hon’ble Supreme Court in the case of Raghubir Singh v. State of Bihar 19, the
Bench expressed its agony over the police torture by giving life sentence to a police officer
who was responsible for the death of a suspect due to torture in a lock-up.

In the landmark case of D.K.Basu v. State of West Bengal, 20 it was held by the Hon’ble
Supreme Court that any type of custodial violence, i.e., torture, death, rape in police custody
or lock-up infringes Article 21 as well as basic human rights and strikes a blow at rule of law.
Torture involves not only physical suffering but also mental agony. It is naked violation of
human dignity and destructive of human personality. Interrogation though essential must be
on scientific principles third-degree methods are totally impermissible.21 The main contention
of the court in this regard can be understood by, “If the functionaries of the Government
become law breakers, it is bound to breed contempt for law and would encourage lawlessness
and every man would have the tendency to become law unto himself thereby leading to
anarchism. No civilised nation can permit that to happen.”22 The prison must be allowed to
have a talk with friends, relatives, lawyers even the Article 22(1) of the Constitution of India
directs that anyone who is arrested shall be denied to have the right to be defended by the

18
D.K. Basu v. State of West Bengal, (1997)1SCC416
19
20
(1997)1SCC416
21
Ibid
22
Ibid p. 7

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lawyer of his own choice and in the case of Dharmbir v. State of UP23 it was directed by the
court that state government should allow the family members to visit the prisoners, at least
once a year under guarded conditions.

It is important to mention that “Justice delayed is Justice denied” and it’s true also the basic
objective of the courts is to absolve the innocent and punish the guilty as soon as possible.
Once the cognizance is taken by the court then court tries to conduct the trial expeditiously
and is the duty of the Hon’ble court that no guilty person escapes and no innocent is
punished. The right to speedy trial is a universally recognised human right. In the landmark
judgement of Prem Shanker v. Delhi Administration 24 the constitutional validity of hand-
cuffing was challenged in the Supreme Court by way of Public Interest Litigation. The court
in the instant case banned the hand-cuffing of the prisoners and the court opined that “Hand-
cuffing is prima-facie wrong, inhuman, unreasonable and is arbitrary.

The court also laid down various standards that need to be maintained for the prisoners and
non-compliance to it will be violation of his basic fundamental rights. The legal provisions
are, thus, as follows:

“(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their designations.
The particulars of all such police personnel who handle interrogation of the arrestee must be
recorded in a register.

(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by atleast one witness, who may
be either a member of the family of the arrestee or a respectable person of the locality from
where the arrest is made. It shall also be counter signed by the arrestee and shall contain the
time and date of arrest.

(3) A person who has been arrested or detained and is being held in custody in a police
station or interrogation centre or other lock-up, shall be entitled to have one friend or relative
or other person known to him or having interest in his welfare being informed, as soon as
practicable, that he has been arrested and is being detained at the particular place, unless the
attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

23
24

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(4) The time, place of arrest and venue of custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town
through the Legal Aid Organisation in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his
arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the
person which shall also disclose the name of the next friend of the person who has been
informed of the arrest and the names and particulars of the police officials in whose custody
the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and
major and minor injuries, if any present on his/her body, must be recorded at that time. The
"Inspection Memo" must be signed both by the arrestee and the police officer affecting the
arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48
hours during his detention in custody by a doctor on the panel of approved doctors appointed
by Director, Health Services of the concerned State or Union Territory. Director, Health
Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be
sent to the Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at
the police control room it should be displayed on a conspicuous notice board.”25

Moving a step ahead, the authors went to the Jail in order to look as to the current scenario,
whether the guidelines given by the Hon’ble Supreme court in the case of D.K.Basu are

25
D.K.Basu v. State of West Bengal, (1997)1SCC416

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complied with or not. Author mostly encountered with prisoners who were held guilty of
grave offences such as rape and murder. The authors discovered that most of the guidelines
were complied with but there are still miles to go. There was no evidence of third degree
torture on the part of the prison mates. The prisoners are given food and shelter; they are not
forced to give confession. There are many other observations that the authors would praise
for, but the only thing that struck authors mind is that the timing of receiving food, i.e., lunch
is 9:00a.m. And for having dinner it is between 4:00p.m.-5:00p.m. The authors got astonished
on finding the same. Thus, the author wants to bring one thing to the notice of even the
readers that it is our duty and the burden is upon us as to how we want to present ourselves to
the public at large. The court can only give guidelines but, the onus of performance lies on
the individual himself. Until and unless, we become self-aware and do not understand our
duties and responsibilities, the country cannot progress, neither can it ensure rights not only
to the prisoners but also to the citizens and non-citizens. It is the duty of the police officials to
ensure that anything of this sort does not takes place either in the presence of any law or in
the absence of it. To conclude, after reviewing the Indian Judiciary with regards to the
protection and preservation of the rights of the prisoners it has been seen that the judiciary is
playing a vital role and is acting as a saviour in the situations where the prisoners were earlier
treated inhumanly. The Supreme Court has come forward to give advice and corrective
measures to the executive and the legislative. From the perusal of the above contributions of
the judiciary it is evident that the judiciary is very sensitive and active in the protection of the
rights of the prisoners. It is only through the active participation of the judiciary that the
rights of the prisoners to live with human dignity is alive in the present world. It is true to say
that the souls behind the bars cannot be denied of the rights guaranteed to every person under
the Article 21 of constitution just because he is in the prison even the state doesn’t have that
power.

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