LIST OF ABBREVIATIONS

A.D : Anno Domini

AIDS : Acquired immune deficiency syndrome

AIR : All India Radio

ALD : Andhra Legal Decisions

All : Allahabad

ALT : Andhra Law Times

Anr. : Another
AP : Andhra Pradesh

APQ : American Philosophy Quarterly

Art. : Article
B.C. : Before Christ

BHCR : Bombay High Court Reports

BJP : Bharatiya Janata Party

BLR : Bharti Law Review

Bom : Bombay

C.J. : Chief Justice

CBFC : Central Board of Film Certification

CBI : Central Bureau of Investigation

CCA : California Court of Appeal

CCTV : Closed-circuit television

1
 LIST OF CASES

 (CA)Shankar vs. State of T. , AIR 2007 SC 493

 Ajay Goswami vs. Union of India, AIR 2007 SC 493
 Amarinder Singh vs. Punjab Vidhan Sabha, (2010)6 SCC 113
 Amicus Curiae vs. Prashant Bhushan, (2010)7 SCC 592
 Aswini Kumar Ghose vs. Arbinda Bose, AIR 1953 SC 75
 Avnish Bajaj vs. State (NCT of Delhi), (2005) 79 DRJ 576: (2005)3
Camp LJ 364
 Babulal Parate vs. State of Maharashtra, AIR 1961 SC 884
 Balraj Khanna vs. Moti Ram, AIR 1971 SC 1389
 Baradakanta Mishra vs. Orissa High Court, (1974) I SCC 374
 Baragur Ramachandrappa vs. State of Karnataka, (2007) 5 SCC 11
 Bennet Colemn & Co vs.Union of India, AIR 1973 SC 106
 Berezousky vs. Michales, 2000 UKHL 25: (2000) I WLR 1004: (2000)
2 All ER 986 (HL)
 Bijoe Emmanuel vs. State of Kerala, AIR 1987 SC 748
 Bobby Art International vs. Om Pal Singh Hoon , AIR 1996 SC1846
 Brahma Prakash Sharma vs. State of UP, AIR 1954 SC 10
 Brij Bhushan vs. State of Delhi, AIR 1950 SC 129
 C Ravichandran Iyer vs A. M Bhattacharjee., (1995) 5 SCC457
 Central Prison vs. Ram Manohar Lohia, AIR 1960 SC 633
 Central Prison vs. Ram Manohar Lohia, AIR 1960 SC 633
 Chadha vs. Dow Jones & Co. Inc, 1999 EMLR 724 (CA)
 Chandrakant Kalyandas kakodkar vs. State of Maharashtra ,AIR
1970 SC 1390

 Chandrakant Kalyandas Kakodkar vs. State of Maharashtra, (1969)2

SCC 687
 CK Dapthary vs. O P Gupta, (1971) I SCC 626
 D. C. Saxena vs. Chief Justice of India, AIR 1996 SC 2481
 Dalbir Singh vs. State of Punjab, AIR 1962 SC 1106
 Delhi Judicial services Assn vs. State of Gujarat, (1991) 4 SCC 406, 457
 Dharam Dutt vs. Union of India, (2004)I SCC 712
 Dinesh Trivedi vs. Union of India,(1997)4 SCC 306

2
 Directorate of film Festivals vs. Gaurav Ashwin Jain, AIR 2007 SC
1640
 F.A Picture International vs. Central Board of Film Certification, AIR
2005 Bom 145
 Federal Communications Commission vs.Pacifica Foundation, 57 L
Ed 2d Io73: 438 US 726 (1978)
 G. Narasimhan vs. T. V Chokkappa, AIR 1972 SC 2609
 Gulabchand Bhudarbhai Soni vs. State of Gujarat, AIR 1970 Guj 171
 Hamdard Dawakhana vs. Union of India, AIR 1960 SC 554
 Hari Singh Naggra vs. Kapil Sibal, (2010) 7 SCC.
 Haridas Das vs. Usha Rani Banik, AIR 2007 SC 2688
 Haridas Das vs. Usha Rani Banik, AIR 2007 SC 2688
 Harlan J in Cohen vs. California, 29 L ED 2d 284: 403 US 15 (1971)
 Harnam Das vs. State of UP AIR 1961 SC 1662(1962) 2 SCR 487
 Hindusthan Times vs. High Court of Allahabad, (2011) 13 SCC 155
 Huth vs. Huth (1915) 3 KB 32; (1914-15) All ER Rep 242 (CA)
 In Court on its own Motion vs. M.K Tayal, (2007) 98 DRJ 41
 Indian Express Newspapers (Bombay) (P) Ltd vs. Union of India, (SCC)
693
 Indian Express Newspapers (Bombay)(P) Ltd vs. Union of India, AIR
1986 SC515
 J. R Parashar vs. Prashant Bhushan, (2001) 6 SCC 735
 Jean Paul Labaye vs. R, 2005 SCC 80: (2005) 3 SCR 728 (Can SC)
 Jeevan Reddy J in printers (Mysore)Ltd. vs. CTO, (1994)2 SCC 434
 K.A Abbas vs. Union of India, AIR 1971 SC 481
 K.P Narayanan vs. Mahendra Singh, AIR 1957 Nag 19
 Kedar Nath Singh vs. State ofBihar, AIR 1962 SC 955
 King Emperor vs. Sadashiv Narayan Bhalerao, AIR 1947 PC 82
 Kitakufe vs. Oloya, 1998 OJ No. 2537

3
Table of Contents
LIST OF ABBREVIATIONS........................................................................................1

LIST OF CASES............................................................................................................2

CHAPTER- I..................................................................................................................3

INTRODUCTION..........................................................................................................3

1. Origin of the research problem:.........................................................................9

1.1. Interdisciplinary relevance...........................................................................11

1.2. Review of Research and Development in the Subject: International status:11

1.3. National Status.............................................................................................12

1.4. The rights provided to Under Trial Prisoners..............................................14

1.7. Significance of the study:..................................................................................19

1.8. Right to Legal Aid.............................................................................................22

1.9. Review of Literature.........................................................................................23

1.10. Objectives:.......................................................................................................23

1.10. Hypothesis.......................................................................................................24

1.11. Methodology:..................................................................................................24

1.12. Universe of study –.........................................................................................24

1.13. Scope of the Study-.........................................................................................25

1.14. Limitation on Study -......................................................................................25

1.15. Relevance of the Study -.................................................................................25

1.16. SCHEME OF CHAPTERISATION-..............................................................25

CHAPTER II: Prisoner’s Rights: National and International Perspectives......................25

CHAPTER III: Role of Supreme Court on Rights of Prisoners in India..........................26
CHAPTER V: Study of under trials in dist. of Punjab.....................................................26
CHAPTER VI: Conclusion and Suggestions...................................................................26
CHAPTER II................................................................................................................27

4
CONSTITUTIONAL PROTECTION AND ROLE OF JUDICIARY FOR
UNDER TRIAL PRISONERS.....................................................................................27

CHAPTER III...............................................................................................................70

FAIR TRIAL................................................................................................................70

3.1. INTRODUCTION.............................................................................................70

In Sushil Sharma v. The State of Delhi Administration and Ors.............................71

In Saibal Kumar Gupta and Ors. v. B.K. Sen and others.........................................72

3.a The Ins And Outs Of Media Trial- English View........................................73

3.b Pro-Plaintiff Media Bias..............................................................................73

3.c The Nature of Bias in High-Publicity Cases................................................74

1. Raising issues in the Study...................................................................................75

CHAPTER IV..............................................................................................................76

STATUTORY PROTECTION IN RELATION TO UNDERTRIAL PRISONERS. .76

4.1. Evolution of Undertrial Prisoners.....................................................................76

4.1.1. State Response to the Plight of Undertrials....................................................77

4.2. Prisoner’s Rights...............................................................................................80

4.2.1. Accused..........................................................................................................82

3.3. Difference Between Prisoners And Accused........................................................83

4.4. Laws Relating To Prisoners And Rules Relating To The Same.......................83

4.5. Constitution Provisions.....................................................................................86

4.5.1. Human Rights Under Indian Constitution......................................................86

Article 32 – Right of Constitutional Remedy:-........................................................86

Fundamental Rights and Directive Principles..........................................................87

CHAPTER V................................................................................................................91

CONCLUSION AND SUGGESTIONS......................................................................91

5.1. Conclusion........................................................................................................91

1. Suggestions for the Further Researches and Planning..........................................96

5
 CHAPTER- I
INTRODUCTION

All Human beings are entitled to some basic human rights by virtue of being as a member
of human family. According to the Article of 25 of Universal Declaration of Human Rights
“All Human beings are said to be born free and equal in dignity”. The provisions under
Universal Declaration of Human Rights which states that: “No one shall be subject to
torture or cruel, inhuman or degrading treatment of punishment”, the United Nations
Covenant on Civil and Political Rights also states that “All persons deprived of their liberty
shall be treated with humanity and with respect for the inherent dignity of the human
person”. The human rights are said to be the natural and basic birth rights of all human
being without any discrimination and therefore everyone is equally liable for all these
rights. Human rights are also available to persons under detention including convicted or
under trial prisoners. Article 21 of the Constitution of India, recognizes that the right to life
includes a right to live with human dignity and not mere animal existence, and strengthens
this mandate. The provisions of Indian Constitution are applicable to every person whether
he may be a citizen of India or not similarly these provisions are also applicable to those
persons who are free as well as whose liberty has been sized in execution of law i.e.
prisoners. Prisoners being one of the depressed classes of society need the protection under
the law. Thus, a prison atmosphere can be accepted as civilized only if it recognizes the
basic human rights and the constitutional rights of the prisoners and makes efforts for the
effective and meaningful enjoyment of the same by means of prison reforms.
The conditions of the prison are worst day by day. According to Prison Statistics India
2011, in the Indian prisons 2, 41,200 under trial prisoners were kept for committing
offences under IPC, Special and local laws and civil offences. Out of these 2, 30,266
(95.5%) are male and 10,934 (4.5%) females. At the end of 2011 the share of under trial
prisoners in the different jails can be seen as, in the central jails 77295 (47.5%), district
jail 121520 (76.8%), sub jail 36248 (91.2%), women’s jail

1652 (54.0%), brostal school 879 (76.8%), Special jails 3546 (67.5%), Others 60 (74.1%).
From this we can see that in the sub jail, only below 9% were of other type of prisoners
and also in most of other type of prisons majority are under trials.1

While we are looking at the all India statistics on prison population we can see that the
number of under trials is more than double, than that of convict prisoners (128592 convicts,
241200 under trials). The percentage of under trial prisoners to the total prisoners in prison

1
Dr. Bindu M.Nambiar Volume : 2 Issue : 9 Sept 2013 ISSN - 2250-1991
6
is 64.7% in the country and the share of convicted prisoners is 34.5%. Their number has
increased as in 2011(2, 4, 1200) over 2005(2, 3, 7076). It has also increased marginally
by 0.5% in 2011 (2, 41,200) over 2010 (2, 40,098). From this we can see that the number of
under trial prisoners in the prison is increasing.

The constitution of India confers number of fundamental rights upon citizens which are
also available to prisoners. The criminal justice system in India also is basically based on
three principles. such as presumption of innocence unless guilt is proved, Burdon of
proving guilt is always on prosecution that prosecution must prove guilt beyond reasonable
doubt & benefit of doubt is always given to the accused. These three principles are said to
be principles of fair trial.
So as to develop the conditions of Jails govt. of India had appointed different commissions
to study the condition in jail and to suggest reforms. Government of India had set up in
1980 a Committee on jail reforms under the Chairmanship of Mr. Justice A.N. Mulla, a
retired judge of the Allahabad High Court. The report submitted by the said Committee is
known as ‘Mulla Committee Report’. It contains a lot of very valuable suggestions.
These committees made a number of recommendations to improve the conditions of
prisons, prisoners and prison personnel all over the country. In its judgments on various
aspects of prison administration, the Supreme Court of India has laid down three broad
principles regarding imprisonment and custody. Firstly, a person in prison does not become
a non-person; secondly, a person in prison is entitled to all human rights within the
limitations of imprisonment; and, lastly there is no justification for aggravating the
suffering already inherent in the process of incarceration. The main purpose of establishing
the Prisons is to confine offenders committing offences under the existing laws and
previous laws enacted from time to time. It is further implied that offenders are to be
isolated for a certain period from general community with a view to ensuring security,
peace and tranquility and further to plan a programme of treatment of offenders. The
components of treatment may be counseling, guidance, re-education, training. The period
of imprisonment, therefore need to be utilized for the treatment.

The provisions under different Acts such as Criminal Procedure Code, Indian Penal Code,
Indian Evidence Act etc. which made provisions for protection of rights of prisoners.
Prisons Act, of 1894 is the first legislation regarding prison regulation in India. Under
Prisons Act 1894 the provisions relating to accommodation and sanitary conditions for
prisoners, Provision for the shelter and safe custody of the excess number of prisoners who
cannot be safely kept in any prison, Provisions relating mental and physical state of
prisoners, Provisions relating to the examination of prisoners by qualified Medical Officer,
Provisions relating to separation of prisoners, containing female and male prisoners, civil
7
and criminal prisoners and convicted and under trail prisoners, Provisions relating to
treatment of under trials, civil prisoners, parole and temporary release of prisoners.

The Prisoners Act, 1990 also made provisions for reformation of prisons and prison justice,
it provides that all reference to prisons or the imprisonment or confinement shall be
construed as referring also to reformatory schools to detention therein, it is the duty of
Government for the removal of any prisoner detained under any order or sentence of any
court, which is of unsound mind to a lunatic asylum and other place where he will be given
proper treatment, that any court which is a High Court may in case in which it has
recommended to Government the granting of a free pardon to any prisoner, permit him to
be at liberty on his own cognizance.

The role of the Supreme Court in the past few years in introducing jail reforms has been
commendable. Supreme Court in its various judgments tries to protect the rights and
freedoms of citizens of India including rights and freedoms of prisoners. Supreme Court
while extending the horizons of constructional rights has given wide interpretation to
constitutional provisions.

As per the jail manual the prisoners are provided off with different amenities such as
canteen for prisoners, provisions for writing and receiving of letters, a separate
library in prison premises, books for reading, supply of daily news papers, display of films
in a week, sport and cultural activities, provisions for radio and television, celebration of
different programmes such as independence day, republic day, Gandhi jayanti, etc.,
facilities for interaction with lawyers, family members and friends, relatives, etc.,
programmes of yoga and vipassana are also be carried out for the purpose of correctional
method. Privisions are also made to provide vocational traing to prisoners such as
carpenter, simthy, tailors, leather work, bakery, power looms, agriculture etc. Most of the
prisons of Maharashtra have Agricultural land attached to them. It is being used for
producing food grains, vegetables, fodder crops and other crops. The main aim of
agriculture in prison is to rehabilitate inments (criminals) by giving them works in fields
and have a source of income through the labour charges paid to them. This training of
doing various agricultural operations in field during crop growth will help the prisoners to
implement that experience in his own field after his release.

In Maharashtra, correctional work is being viewed in an integrated manner, commencing

from prevention control, care, training and treatment and ending in after care. Through a
phased programme, the mass approach in prisons is being replaced by an individual
approach through a system of diversified institutions, classification of prisoners on
8
scientific basis and development of work training, educational and cultural programmes.

Punjab consistes of a sub jail classified as Class II jail. The administration of prisoners in
Punjab was administrated in sub jails and subsidiary jails. The habitual prisoners convicted
and sentenced for a term exceeding three months are sent to Sangli District Prison and to
Nasik Road Central Prison. Central prisoners sentenced over two years are sent to Yeravda
Central Prison; and short term prisoner of the district with sentences ranging from one
week to a month are accommodated in the taluka subsidiary jails which are located at
Dahiwadi, Karad, Khandala, Koregaon, Mahabaleshwar, Medha, Patan, Vaduj and Wai.
These sub-jails are classified as class III sub-jails and are administered by the Revenue
Department. The sub-jails at Phaltan and Punjab are class II Head-quarter sub-jails. The
Punjab sub-jail is in charge of a Jailor-cum-Superintendent. The Phaltan sub-jail is in
charge of a revenue officer. The police lock-ups in the district are under the direct control of
the Inspector-General of Police.

The Supreme Court of India has been active in responding human rights of prisoners. They
have given different category of rights to the prisoners during detention which are
specifically recognized under Indian laws as well as under principles of international
covenants. There are some assumptions based upon which supreme court has given the
basic rights even to the prisoners. In the eyes of Court

“Convicts are not by mere reason of the conviction denuded of all the fundamental rights
which they otherwise possess”. It provides that prisoners are also human beings. Hence, all
such rights except those that are taken away in the legitimate process of incarceration still
remain with the prisoner. These include rights that are related to the protection of basic
human dignity as well as those for the development of the prisoner into a better human
being. The convicted persons go to prisons as punishment and not for punishment Prison
sentence has to be carried out as per the courts orders and no additional punishment can be
inflicted by the prison authorities without sanction. Prisoners depend on prison authorities
for almost all of their day to day needs, and the state possesses control over their life and
liberty, the mechanism of rights springs up to prevent the authorities from abusing their
power. Prison authorities have to be, therefore, accountable for the manner in which they
exercise their custody over persons in their care, especially as regards their wide
discretionary powers. Imprisonment as punishment is now rethought of as rehabilitative
punishment. This involves a philosophy that individuals are incarcerated so that they have
an opportunity to learn alternative behaviors to curb their deviant lifestyles. Correction,
therefore, is a system designed to correct those traits that result in criminal behavior. The

9
rehabilitative model argues that the purpose of incarceration is to reform inmates through
educational, training, and counseling programmes. This development and growth requires
certain human rights without which no reformation takes place. Overcrowded prisons,
prolonged detention of under trial prisoners, unsatisfactory living condition and allegations
of indifferent and even inhuman behavior by prison staff has repeatedly attracted the
attention of critics over the years. Unfortunately, little has changed. There have been no
worthwhile reforms affecting the basic issues of relevance to prison administration in India.

The judiciary has been playing a role of rescuer in situations where the executive and
legislature have failed to address the problems of the people. The Supreme Court has come
forward to take corrective measures and provide necessary directions to the executive and
legislature. From the perusal of the above contribution it is evident that the Indian Judiciary
has been very sensitive and alive to the protection of the Human Rights of the people. It
has, through judicial activism forged new tools and devised new remedies for the purpose
of vindicating the most precious of the precious Human Right of Prisoners.

The concept of Right to legal aid to under trial prisoners is very important, From the
analysis of data collected and examined we can concludes that, Right to free legal aid
which was enriched by including under article 21 of Indian Constitution as part and parcel
of right to fair trial by judiciary as well as legislators given it wide importance. This right is
also available to trial awaiting prisoners. Supreme court in various cases recognized that
right to representation in judicial tribunal is considering being important part of right to
access to justice. Unless, the person allowed to approach to court for enforcement of his
rights, the right to remedy is worthless. Right to representation includes right to be
represented through legal practitioner of his own choice. Under law the provisions are
made to provide this right of representation through proper advocate. However under
certain circumstances this right cannot be effectively enforced due to various reasons such
as poverty, illiteracy, indecency & other reasons. Person is not in a position to appoint
lawyer for his defense or representation. In such a situation right to representation can be
exercised through the process of legal aid. Right to legal aid is provided by the constitution
of India as well as other legislations. Indian judiciary has also recognized this right as basic
right for enforcement of fair, human & efficient criminal judicial system. It is considered to
be the foundation of other rights

Indian judiciary has also recognized these rights as basic right for enforcement of fair,
human & efficient criminal judicial system. It is considered to be the foundation of other
rights. The concept of Right to legal aid to under trial prisoners is very important, From the
10
 analysis of data collected and examined we can concludes that, Right to free legal aid
which was enriched by including under article 21 of Indian Constitution as part and parcel
of right to fair trial by judiciary as well as legislators given it wide importance. This right is
also available to trial awaiting prisoners.

All Human beings are entitled to some basic human rights by virtue of being as a member
of human family. Prisoners are human being and as such they retain their rights even
when in prison. This is so because human rights are universal. This means that every
person, including a prisoner, has human rights, no matter who he is, where he or she lives
or his or her class, race, sex, age, social status, etc. Also, human rights are said to be
inalienable. This means that they cannot be taken away from a person, including a prisoner.
Trials awaiting prisoners or people who have been sentenced lose some of their rights,
such as freedom of movement, but they keep other rights such as the right to dignity. The
right to human dignity, the right life, right to equality and freedom from discrimination, the
right not be tortured or treated cruelly or inhumanely, This means that a prisoner retains his
human dignity in all circumstances. His right to human dignity is unbreakable in all
circumstances irrespective of the type of crime he committed. He may also not be tortured
or treated cruelly or inhumanely under any circumstances.

Universal Declaration of Human Rights which states that: “No one shall be subject to
torture or cruel, inhuman or degrading treatment of punishment” the United Nations
Covenant on Civil and Political Rights which states in part: “All persons deprived of their
liberty shall be treated with humanity and with respect for the inherent dignity of the human
person”. According to the Article of 25 of Universal Declaration of Human Rights “All
Human beings are said to be born free and equal in dignity”. The human rights are said to
be the natural and basic birth rights of all human being without any discrimination and
therefore everyone is equally liable for all these rights. Human rights are also available to
persons under detention including convicted or under trial prisoners. Article 21 of the
Constitution of India, recognizes that the right to life includes a right to live with human
dignity and not mere animal existence. Thus, a prison atmosphere can be accepted as
civilized only if it recognizes the basic human rights and the constitutional rights of the
prisoners and makes efforts for the effective and meaningful enjoyment of the same by
means of prison reforms.2

The system of imprisonment has originated in the first quarter of the 19th century. In the
initial stages the prisons were used as a place for detention of the under trials. It has
undergone a radical change and the penology of the present day has become centered on

2
Available at: http://india.indymedia.org/en/2005/04/210469.shtml last accessed on April 2023
11
imprisonment as a measure of rehabilitation of the criminals. But unfortunately even now
our prisons are crowded with under trial prisoners. Many of them are innocent persons who
are caught in the trap of the law eagerly waiting for their trial date and several of them are
prepared to confess their crime and accept their sentence.
When we think about prisons the image that comes to our mind is that of hard core
criminals who were imprisoned for committing crimes. But in actual fact 64.7% of
prisoners in Indian jails are under trials that may or may not be punished. Thousands of
them, arrested on suspicion of committing petty crimes, fade away in jails for a much
longer period than the maximum punishment under the law for the crime which they have
committed. The presence of higher number of under trials in the prison results in their
overcrowding, which in turn causes many socio economic problems in the society.3
The need for prison reforms has come into focus during the last few decades. The
Supreme Court and the High Courts have commented upon the shocking conditions
prevailing inside the prisons, resulting in violation of prisoner’s rights. The problem of
prison administration has been examined by numerous expert bodies set up by the
Government of India. The most comprehensive examination was done by the All India Jail
Reforms Committee of 1980-83, popularly known as the Mulla Committee. The National
and the State Human Rights Commission have also, in their annual reports, drawn attention
to the terrible conditions in the prisons and urged governments to introduce reforms.

The presence of large number of under trial prisoners and their continuing stay for longer
period definitely indicates the slow rate of trials which will leads to the overcrowding of
our prisons. In the views of National Human Rights Commissions, unnecessary and
unjustified arrests made by the police and the slow judicial processes causing congestion of
under trial prisoners are the main causes of overcrowding in jails.

1. Origin of the research problem:

Several researches had been done research in this area from the social point of view.
However I would like to analyses the subject from the legal and social point of view. The
conditions of the prison are worst day by day. According to Prison Statistics India 2011, in
the Indian prisons 2, 41,200 under trial prisoners were kept for committing offences under
IPC, Special and local laws and civil offences. Out of these 2, 30,266 (95.5%) are male and
10,934 (4.5%) females. At the end of 2011 the share of under trial prisoners in the different
jails can be seen as, in the central jails 77295 (47.5%), district jail 121520 (76.8%), sub
jail 36248
(91.2%), women’s jail 1652 (54.0%), brostal school 879 (76.8%), Special jails 3546
(67.5%), Others 60 (74.1%). From this we can see that in the sub jail, only below 9% were
of other type of prisoners and also in most of other type of prisons majority are under
12
trials.4

Some States and Union Territories have reported very high percentage of under trials to
total prisoners. They were Dadar &Nagar Haveli (100.0%), Arunachal Pradesh (89.1%),
Bihar (83.5%), Meghalaya (83.9%), Jammu &
Kashmir (79.3%), Delhi (73.5%), Jharkhand (72.8%), Odessa (71.0%) and Manipur
(70.2%). Only a very few States like Himachal Pradesh (942 convicts, 665 under trial s),
Tripura (569 convicts, 330 under trial s) Pondicherry (130 convicts, 112 under trials), have
got less number of under trials than that of convicts. While we are looking at the all India
statistics on prison population we can see that the number of under trials is more than
double, than that of convict prisoners i.e. 128592 convicts, 241200 under trials. The
percentage of under trial prisoners to the total prisoners in prison is 64.7% in the country
and the share of convicted prisoners is 34.5%. Their number has increased as in
2011(2,4,1200) over 2005(2,3,7076). It has also increased marginally by 0.5% in 2011
(2,41,200) over 2010 (2,40,098). From this we can see that the number of under trial
prisoners in the prison is increasing.
In the jails in India, the total capacity is 332782 and the inmates present at the end of
2011 are 372926. The prisons have 40144 prisoners more than its capacity. The
occupancy rate has been calculated to determine the ‘crowding of prisons’. The occupancy
rate of all the prisons in India is 112.1%. In some states and Union Territories like
Andaman & Nikobar Islands (362.1%), Chhattisgarh (256.3%), Punjab (149.1%) the
occupancy rate is very high.

Presently the positions of jails are that they are overcrowded and jail machinery is
insufficient to satisfy the basic needs of the prisoners and the infrastructure is also
inadequate. Under trial or un convicted prisoners were kept in the jail without any trail for
long period, only because they are not getting their basic right of free legal aid. Supreme
Court of India in its various judgments recognized this right as part and parcel of right to
life and personal liberty. But due to various reasons this right became unenforceable.
Under trial prisoners constitutes a significant majority of the prison population. Persons
who are within prisons as under trials are presumed to be innocent in the eye of the law.
How can a system that calls itself just and fair, justify depriving "innocent" people of their
liberty the consequences of pre-trial detention are grave. Defendants presumed innocent are
subjected to the psychological and physical deprivations of jail life, usually under more
onerous conditions than are imposed on convicted defendants. The jailed defendant loses
his job if he has one and is prevented from contributing to the preparation of his defense.
Equally important, the burden of his detention frequently falls heavily on the innocent
members of his family. An effective criminal justice system inevitably needs to ensure that
13
the accused stand trial for the crimes they are alleged to have committed. Due to poverty or
illiteracy prisoners are incapable to execute their right. Therefore it is necessary to provide
legal aid to them.

1.1. Interdisciplinary relevance

Right to free legal aid is the basic and important right of every accused. In

M.H. Hoskot v State of Maharashtra, the Supreme Court aid down that right to free legal
aid at the cost to the state to an accessed who could not afford legal services for reason of
poverty, indigence or incommunicado situation was part of fair, just and reasonable
procedures contained in Article 21. Position of prisoners is worst as they are not getting
this right, this problem is not only social problem, and it is also legal one. This right to free
legal aid is a multidimensional and multidisciplinary area which related with socio- legal
issues.

1.2. Review of Research and Development in the Subject:

International status:

International law relating to the prisoners provides that a prisoner i.e. a trial-awaiting
prisoners, sentence awaiting prisoners and convicted prisoners have the following rights:

To receive meals from the State and his family; To receive clothing, bedding, soap and
medicine; To receive visitors; To receive and write letters subject to censorship; To
exercise; To medical treatment; If a prisoner is female, to be kept separate from male
prisoner; If a female prisoner is to be admitted into prison custody, in certain instances,
with her infant; such an infant must be supplied with clothing and other necessities by the
State until she attains the age of two years; If an un convicted juvenile, not to be detained
in a prison unless special circumstances so demands; Not to be assaulted by prison guards
unless he has attempted to escape, been riotous or violent, or has disobeyed a lawful order;
To be given an opportunity to state his case whenever a privilege and or benefit is
withdrawn or amended; To make complaints to the Officer in Charge

Be afforded adequate facilities for the preparation and presentation of his defense; his legal
representative must be given adequate facilities to privately interview him; where the
prisoner is unable to communicate with his legal representative in English, a suitable
interpreter must be provided; No to have his documents or letters addressed to the
Ombudsman or his lawyer censored. When charged for a prison offence, to be informed in
writing of the nature and particulars of the charge against him or her, and be given a fair

14
 hearing To be informed of the provisions of the Prisoners Act, the applicable rules, orders
and directives relating to the treatment and conduct of prisoners; this information must be
made available to every prisoner immediately on admission to a prison; where the prisoner
is illiterate the contents of those provisions must be orally explained to him; To be free
from unreasonable searches at night.

1.3. National Status

Prisons in India, and their administration, are a state subject covered by item four under the
State List in the Seventh Schedule of the Constitution of India. The management and
administration of prisons falls exclusively in the domain of the State governments, and is
governed by the Prisons Act, 1894 and the Prison manuals of the respective state
governments. Thus, states have the primary role, responsibility and authority to change the
current prison laws, rules and regulations.3 The Central Government provides assistance to
the states to improve security in prisons, for the repair and renovation of old prisons,
medical facilities, development of Borstal schools, facilities to women offenders,
vocational training, modernization of prison industries, training to prison personnel, and for
the creation of high security enclosures.

The Supreme Court of India, in its judgments on various aspects of prison administration,
has laid down three broad principles regarding imprisonment and custody. Firstly, a person
in prison does not become a non-person. Secondly, a person in prison is entitled to all
human rights within the limitations of imprisonment. Lastly, there is no justification for
aggravating the suffering already intrinsic in the process of imprisonment.4

The terms "prison" and "jail" are used interchangeably in India, perhaps reflecting the fact
that no significant effort is made to separate "under trials," as those awaiting trial are
known, from convicts. Separation of under trials from convicts is required by a decision of
India's Supreme Court, but this decision is widely ignored in practice. A substantial
majority of all prisoners are "under trials."
Prisoner’s rights have become an important item in the agenda for prison reforms. This is
due essentially to the recognition of two important principles. Firstly, the prisoner “is no
longer regarded as an object, a ward, or a ‘slave of the state’, who the law would leave at
the prison entrance and who would be condemned to ‘civil death’.” It is increasingly been
recognized that a citizen does not cease to be a citizen just because he has become a
prisoner. The Supreme Court has made it very clear in many judgments that except for the
fact that the compulsion to live in a prison involve the deprivation of certain rights, like the

3
"India - The Penal System". Available at: Country-data.com. last accessed on April 2023
4
NCRB Prison Statistics India 2011
15
 right to move freely or to practice a profession of one’s choice, a prisoner is otherwise
entitled to the basic freedoms guaranteed by the Constitution.5 Secondly, the convicted
persons go to prisons as punishment and not for punishment.9 Prison sentence has to be
carried out as per court’s orders and no additional punishment can be inflicted by the prison
authorities without sanction. Prison authorities have to be, therefore, accountable for the
manner in which they exercise their custody over persons in their care, especially as regards
their wide discretionary powers.

Article 19(1) (a) provides for freedom of speech and expressions. Freedom of thought and
expression is one of the important political freedoms guaranteed by Article 19(1) (a) of the
Constitution. In the Pandurang Sanzgiri’s case the petitioner had written a book in Marathi
titled ‘Inside Atom’ with the permission of the Government.6 The Supreme Court observed
that the book being purely of scientific interest the manuscript of the same could be sent out
of the jail for publication. Every activity, which is supplementary to and is essential for, the
free exercise of a fundamental right, is considered to be a part of that fundamental right.
Protect persons from ex-post facto laws. Person shall be convicted of any offence only in
violation of a law in force at the time of the commission of the act charged as an offence.
Embodies the principal of ‘double jeopardy’, that is, no person shall be prosecuted and
punished for the same offence more than once. Provide for important safeguards to the
under trials that the jail authorities or police authorities cannot compel the prisoners to give
testimony which is likely to expose them for criminal consequences. Article 21 of the
Constitution guarantees the right of personal liberty and there by prohibits any inhuman,
cruel or degrading treatments to any person whether he is a national or foreigner. It is
available even to convicts in jails. Personal liberty, thus, is a sacred and cherished right
under the Constitution. The expression life or personal liberty has been held to include the
right to live with human dignity and thus it would also include within itself a guarantee
against torture and assault by the State or its functionaries. Right to speed trial, right
against handcuffing, right against inhuman treatment are some of the rights which come
under the purview of the Article 21. Article 21 provides no person shall be deprived of his
life or personal liberty except according to procedure established by law. Article 22
guarantees protection against arrest and detention in certain cases and declares that no
person who is arrested shall be detained in custody without being informed of the grounds
of such arrest and he shall not be denied the right to consult and defend himself by a legal
practitioner of his choice. Article 22 provides for protection against arrest and detention in
certain cases. Article 25(1) provides for freedom of conscience and free profession, practice
5
Charles Shobraj vs. Superintendent, Tihar Jail, AIR 1978, SC 1514
6
Jon Vagg. Prison System- A Comparative Study of Accountability in England, France,
Germany and the Netherlands, (Clarenden Press, Oxford 1994)
16
and propagation of religion. This right to religion can be equally enjoyed by the prisoner
also. Article 39A is a Directive Principle of State Policy and grants equal justice and free
legal aid. It deals with providing free legal aid to disabled categories and women are among
them.

1.4. The rights provided to Under Trial Prisoners

1. Fair Trial:

A fair trial means that both the prosecution and the defendant are treated as if they were on
the same pedestal. That is, both should be treated equally. All criminal trials begin with a
presumption of innocence in favour of the accused, and the Code of Criminal Procedure is
written so that a criminal procedure begins and ends with that significant presumption. The
fastest possible delay in resolving a criminal case puts the suspect in constant fear and
mental distress, exacerbated during police detention.

2. Legal Assistance and Plea Defence Rights:

The criminal assistance system we have assumes that the state will use investigative
resources and hire experienced prosecutors to prosecute the accused. evidence. As a result,
both the Indian Constitution (Article 21) and the Code of Criminal Procedure (Article 303)
give the accused the right to counsel and be represented by a lawyer of his choice. If the
accused does not have the financial means to hire a lawyer, the right to be represented by a
lawyer of his choice is useless.

To a limited extent, our criminal justice system has attempted to address this issue. The law
states that if the defendant is not represented and the court finds that he does not have
sufficient resources to hire a plea, the court of hearing will appoint a plea advocate at the
expense of the state. I admit. However, the main question regarding the support of
government-appointed lawyers is his efficiency and his interest in the cases assigned to
them.

Lawyers miss the proceedings because they are interested in private, high-paying work and
the proceedings of lower court prisoners seeking legal assistance from lawyers have been
postponed for years.

3. Bail for Prisoners in Lower Courts Section 436A of the Code of Criminal Procedure
states that defendants will be released on bail on their ties after serving half the maximum
17
sentence stipulated for crimes for which death is not a penalty. In such cases, the public
prosecutor's office must also be heard, and the court can order him to continue detention for
more than half of his maximum sentence, or release him after explaining why.

4. The bond clause default payment request is a term that can be used to describe the
release of a bond in Section 167. this is the release of bail based on the prosecutor's failure
to file an indictment within the prescribed period. Security deposit rights are absolute in
accordance with a clause(a) in Section 167 (2). Defendants in custody should be released
on bail if the investigative authorities do not file an indictment within the 90 or 60 days
deadline, depending on the circumstances. Defendants have no special right to bail. Bail
granted under Article 167 (2) can be revoked if an investigation indicates that the suspect
has committed a serious offence and an indictment is presented.

1.5. The Situation of Under Trial Prisoners

In India, the principle "innocent until proven guilty" is being challenged. According to 2020
prison data, more than 70% of such Under Trial prisoners are from marginalised groups,
castes, religions, and genders. The right to a fast trial is a vital aspect of a fair trial and is
basic to human rights discourse, according to the Supreme Court in Hussainara Khatoon
v. Home Secretary, State of Bihar and Ors.

Thousands of people are jailed after being charged with a bailable offence for which bail is
a legal requirement. This circumstance has resulted in flagrant violations of the Under
Trials' fundamental rights. According to India's National Crime Records Bureau (NCRB),
prison statistics for 2016, two out of every three individuals imprisoned are under trial. Of
criminal trials, the rise in pending cases is a big issue. Over 1.7 crore criminal cases (trial
and appeal) have been outstanding for more than a year, with over 22 lakh cases pending
for more than ten years from the date of their initiation.

The majority of defendants are illiterate, have a poor level of awareness, are from a lower
socioeconomic class, or are financially insecure. The torment intensifies to the point where
it is classified as third-degree torture. They are occasionally asked to sign blank pages and
are forced to submit as a result of the constant torture. They are held in solitary
confinement and have no access to light in their cells. Under Trials are denied their right to
life and liberty, despite promises made under Article 21.
18
All Indian prisons have overcrowding, unsanitary conditions, delayed medical attention,
starvation, no sanitization, and bad living conditions. It offers immunity and presumes their
good intention in acts of excessive neglect and does not criminalise the conduct of prison
authorities. In the case of Khatri v. State of Bihar, the police blinded eighty individuals by
puncturing their eyes with needles and dousing them with acid.

Depression and mental health issues are rarely taken seriously. They are unprepared to
participate in society even after being discharged. In critical years of life, they miss out on
family, school, career, ambitions, and health. Many people were convicted under UAPA
during anti-CAA protests. After two years of protesting, many students' lives have been
turned upside down. The accusations were false, and legal action was required to remedy
each one.

After being gang- raped, a Dalit girl died and was cremated without her family's permission
at midnight. Siddique Kappan, a reporter who went onsite, was charged with a slew of
offences including UAPA, sedition, and a slew of others. He was tortured in his cell, had
his teeth shattered, and was imprisoned in Mathura jail, which had previously been a school
with no facilities. Amnesty for unconstitutionality is not granted to any prisoner authority.

When the COVID-19 epidemic broke out, India was faced with a whole new set of
problems. As black clouds of poverty and unemployment lingered over the underprivileged
parts of society, the defective criminal justice system utterly overlooked the vulnerable
under-trial prisoners. Due to technical challenges with the online platform or the absence of
presiding judges, case applications were rarely allowed to be filed, and hearing dates were
regularly postponed.

What is rule of law?

It is in direct opposition to the authority of man. Although Edward Coke came up with the
idea, it was further developed by A.V. Dicey. It means the Government is based on the rule
of law rather than the rule of men. The term "rule of law" refers to a set of norms founded
on the principles of liberty, non-discrimination, fraternity, accountability, and non-
arbitrariness.

Every government must be subservient to the law, not the other way around. It rejects
19
governmental officials' arbitrary and unrestricted authority. The doctrine of rule of law has
been referred to as "law supremacy." This means that no one can be considered to be above
the law where the rule of law exists.

Three principles of rule of law are:

1. Absolute supremacy of law:

absolute supremacy of regular law, exclusion of arbitrary power are the three principles of
the rule of law. "Whenever there is a room for discretion, there is a potential for
arbitrariness," Av dicey maintained. Subjects' legal freedom is jeopardised when the
government exercises discretionary powers.

2. Equality before the law:

equal submission of all classes (to the same law), with no distinct courts for government
officials.

3. Predominance of legal spirit:

he highlighted the role of the court of law as a protector of liberty. In the absence of strong
protection and enforcement mechanisms, just incorporating or including certain rights in
the written constitution is of limited significance. Only when rights are adequately enforced
in a court of law can they be made available to citizens. Dicey feared that if the source of a
fundamental citizen's right was a written document, it could be revoked at any time by
amending the constitution.

Does India follow rule of law?

India adheres to the rule of law as the government is bound by the constitution which is the
rule of law (supreme law).In the viewpoint of the law, Article 14 treats everyone equally.
All citizens will be treated equally before the law, according to this provision. The country's
law ensures that everyone is protected equally. People will be treated the same by the law in
the same circumstances. This article prohibits discrimination in any form (equality before
the law). The rights of the people are enshrined in the constitution, and it is the
responsibility of the government to apply all of these rights (predominance of the spirit of
the law).

20
Freedom from arbitrary power is a fundamental requirement of the rule of law,
underpinning our entire constitutional structure. Governance should be rule-based rather
than arbitrary, unclear or far-fetched. Another example of the Rule of Law philosophy in
India is Article 13 of the Indian Constitution. Article 13 defines "laws" as "rules,
regulations, bye-laws, and ordinances" that can be overturned if they are in violation of
India's constitution.

Fundamental rights are inalienable and universal. Only a state that upholds the rule of law
can guarantee such fundamental rights. Part III of the Indian Constitution protects
fundamental rights. Article 32 and 226 of the Constitution provide that such Fundamental
Rights cannot be abolished and that they can be enforced.

The Indian Constitution is the supreme law of the land, and all laws must be as per it. Any
law that violates any section of the Constitution, particularly the fundamental rights, would
be deemed null and void. Liberty, in addition to justice and equality, is one of the main
postulates of the Rule of Law. Article 21 of the Constitution guarantees the fundamental
right to life and personal liberty.

Shankari Prasad v. Union of India, in which the topic of amenability of fundamental

rights arose, was the first case that sparked a debate regarding the Rule of Law. The
question persisted, and after watching the government's and judiciary's back-and-forth, the
problem was finally resolved in the case of Kesavananda Bharati v. the State of Kerala.
The Supreme Court ruled in this decision that the Rule of Law is the
Constitution's fundamental framework.

The Hon'ble Supreme Court, by a majority decision, overturned Golak Nath's decision and
held that Parliament has broad powers to amend the Constitution, which extend to all
Articles, but that these powers are not unlimited and do not include the power to destroy or
abrogate the Constitution's basic features or framework. Art 368 imposes implied
constraints on the power of amendment that are imposed by the Rule of Law.

The rule of law is enshrined in various provisions of the Indian constitution. The Preamble
of the Indian constitution, for example, expresses the goal of achieving equality, liberty, and
justice. Article 14 protects the right to equal protection under the law and equality before
the law. It states that no one shall be denied equality before the law or the state's equal
21
protection under the law.

The essential criterion of Rule of Law is that everyone is treated fairly and without bias. In
the case of Maneka Gandhi v. Union of India, the Supreme Court stated unequivocally
that Article 14 prohibits the government from acting arbitrarily and ensures fairness and
equality of treatment. Arbitrariness is prohibited under the rule of law, which is a
fundamental aspect of the Indian Constitution.

Where there is arbitrariness, the Rule of Law is denied. The addition of protective
discrimination as a measure of ensuring equality among equals in Art 15, 16, 23 further
enhanced the ideal of equality. The Supreme Court decided in ADM Jabalpur v. Shivkant
Shukla that "illegal confinement in an emergency is against the rule of law," and that
article 21 covers the rule of law.

1.6. Under Trial prisoners are in violation of rule of law

Except for a breach of law established in the regular legal method before an ordinary court
of the nation, no one can be detained, punished, or legitimately forced to suffer in body or
property. The state of things in which everything must be done according to the law is
known as the rule of law. Under Trials, on the other hand, are against the law. The Supreme
Court remarked 40 years ago that the significant prevalence of Under Trials in jails is a
"crying shame on the judicial system" since it allows people to be imprisoned for extended
periods without a trial in many circumstances.

The assassination of mobster Vikas Dubey has prompted a debate about the rule of law, as
well as questions about the use of violence by governmental institutions. Criticisms have
come from all over the country, especially from the opposition, who say such an act
violates the foundation of the rule of law, i.e. the rule of law. In today's world, where
incidents such as clashes and schisms have become all too common, it is essential to
emphasize the importance of the rule of law.

The proof of charge, which must be beyond a reasonable doubt, must be based on a judicial
appraisal of the entire body of evidence, both oral and circumstantial, rather than a single
examination. Most significantly, a swift trial is required so that no one suffers.

22
 1.7. Significance of the study:

M.H. Wadanrao Hoskot v. State of Maharashtra 7, the Court held that the right to legal aid is
one of the ingredients of fair procedure.

“ If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional

and statutory right of appeal, for want of legal assistance, there is implicit in the court
under article 142 read with Article 21 and 39-A of the Constitution, power to assign council
for such imprisoned individual for doing complete justice. Where the prisoner is disabled
from engaging a lawyer, on reasonable grounds such as indigence or any other situation, the
court shall, if the circumstances of the case, the gravity of the sentence, and the ends of
justice so required, assign competent counsel for the prisoners defense, provided the party
doesn’t object to that lawyer. ”

Khatri & Ors v State of Bihar & Ors 8, the Supreme Court gave directions that the state is
under a constitutional mandate to provide free legal aid to an accused that is unable to
secure legal services on account of poverty, at the cost of the state. This right is also
recognized by various legislations but presently it does not apply any were. Therefore in
this context it is desirable to undertake a detailed study and find out the possible measures
which will recognize right to legal aid as a basic human right.

This was underscored by Dr. W Jonas AM Aboriginal and Torres Strait Islander Social
Justice Commissioner, in his keynote presentation at the Prisoners as Citizens Workshop in
Sydney, when he pointed out that: the right to human detention which aims for individual
rehabilitation and social reintegration is not vague or abstract aspiration but a concrete
obligation to be implemented by a set of detailed measures. Failure to do so is a violation
of the prisoner's rights which should be capable of an effective remedy.9

Section 35(2) (e) of the Constitution makes provision for the conditions under which the
prisoners are to be detained. It provides: Every prisoner who is detained, including every
sentenced prisoner, has a right to conditions of detention that are consistent with human
dignity, including at least exercise and the provision, at state expense, of adequate
accommodation, nutrition, reading material and medical treatment.

Under Indian law, every person who is arrested and detained in custody must be produced

7
AIR 1978 SC 1548
8
AIR 1981 SC 928
9
Dr W Jonas AM Aboriginal and Torres Strait Islander Social Justice Commissioner, at the
"Prisoners as Citizens" Workshop, Sydney, 27 November 2000.
23
before a magistrate within 24 hours of arrest, excluding the time needed for transportation
to court. A special order by a magistrate is required to authorize police detention for a
longer period. Remand to police custody may be for no more than 14 days. If it is to be
prolonged thereafter, another order from a magistrate is required. Detention in police
custody, at least as far as the law is concerned, may not exceed 90 days. In cases in which
the potential sentence is under ten years, detention in police custody may not exceed 60
days.
Even after introducing the explanation added to the Section 436-A of Criminal
Procedure Code which provides for the release of under trial prisoners under bond if they
have served for a period extending up to one half of the maximum period of imprisonment
for that offence under law, at the end of 2011, a total of 1,486 (0.6%) under trial prisoners
were kept in the Indian prisons for a period more than five years. 7615 (3.2%) between
three to five years. 13592 (5.6%) between two to three years. 30261 (12.5%) between one
to two years. 41455 (17.2%) between 6 months to one year, 50126 (20.8%) for 3 to 6
months
and 96665 (40.1%) up to 3 months.

Overcrowding contributes to a greater risk of disease, higher noise levels, which affect the
health of the prisoners, and adversely affect the hygienic conditions, surveillance
difficulties, which increase the danger level. This apart, life is more difficult for inmates
and work is more onerous for staff when prisoners are in over capacity. In Chapter 9 of the
78th Report of the Law Commission of India on “congestion of under trial prisoners in
jails” had made some recommendations. Acceptance of which would relieve congestion in
jails. In order to mitigate the conditions of the under trial prisoners the first and foremost
thing that has to do is to bring down their population drastically. This cannot happen unless
all the branches of the criminal justice system work hand in hand. The presence of large
number of under trial prisoners is really shame to any criminal justice administration. For
this we have to take these under trials out of the prison or not to keep them for a long
period as well as not to sent more under trials to the prison.

A functioning legal aid system, as part of a functioning criminal justice system, may reduce
the length of time suspects are held in police stations and detention centers, in addition to
reducing the prison population, prison overcrowding and congestion in the courts, and
reducing reoffending and re victimization. It may also protect and safeguard the rights of
victims and witnesses in the criminal justice process. Legal aid plays an important role in
facilitating diversion and the use of community-based sanctions and measures, including
non-custodial measures; promoting greater community involvement in the management of
criminal justice; reducing the unnecessary use of detention and imprisonment; rationalizing
24
 criminal justice policies; and ensuring efficient use of State resources.
An important aspect of prison administration is the number of prisoners that the authorities
have to handle in the prisons. A major problem that is being faced in most of the Indian jails
is overcrowding of prisons resulting in inadequate infrastructure facilities, insufficient
number of prison staff and lack of essential services for the prison inmates10

By the prevailing standards of society, prison conditions are often adequate. Some prison
administrators concede that the prevailing conditions of poverty in Indian society
contribute to recidivism because a prison sentence guarantees minimal levels of food,
clothing, and shelter. Despite this overall view, India's prisons are seriously overcrowded,
prisoners are given better or worse treatment according to the nature of their crime and
class status, sanitary conditions are poor, and punishments for misbehavior while
incarcerated have been known to be particularly onerous.

It is the fundamental right of all poor and indigent prisoners to be provided with free legal
aid in the prosecution of their case at different levels of their trial. The Magistrate is duty
bound to offer the facility to the accused the moment he or she is produced before him or
her for the first time even if the accused has not asked for it out of ignorance. The
Magistrate is under a duty to supply copies of all documents such as the First Information
Report, statements of witnesses, charge sheet, etc. free of cost to the accused to enable him
or her to know the details of the case and start preparing the defense. The Magistrate or the
Judge is duty bound to furnish the accused with a free transcript of the judgment when he
or she is sentenced to enable the prisoner to prefer an appeal if he or she so desires and to
ensure that there is no delay which may later result in an appeal being barred by the
Limitation Act of 1940. If the prisoner wishes to appeal, he or she may present a petition of
appeal and copies accompanying the same to the Superintendent or the officer in charge
of the jail who is duty bound to forward the petition of appeal and copies thereof to the
proper Appellate Court within the period of limitation.14 Where the accused is not in a
position to defend him, the Magistrate is duty bound to appoint a committed and competent
lawyer having sufficient experience in criminal matters for the defense of the accused at the
expense of the government. The Magistrate is duty bound to refer such cases to the
District Legal Services Authority.

1.8. Right to Legal Aid

The talk of human rights would become meaningless unless a person is provided with legal
aid to enable him to have access to justice in case of violation of his human rights. This a

10
Dr. Bindu M.Nambiar Volume : 2 | Issue : 9 | Sept 2013 ISSN - 2250-1991
25
 terrifying challenge in the country of India’s size and heterogeneity where more than half of
the population lives in far-flung villages steeped in poverty, destitution and illiteracy. Legal
aid is no longer a matter of charity or kindness but is one of the constitutional rights and the
legal machinery itself is expected to deal specifically with it. 11 The basic philosophy of
legal aid envisages that the machinery of administration of justice should be easily
accessible and should not be out of the reach of those who have to resort to it for the
enforcement of their legal rights. In fact legal aid offers a challenging opportunity to the
society to redress grievances of the poor and thereby law foundation of Rule of Law.

In India, judiciary has played an important role in developing the concept of legal aid and
expanding its scope so as to enable the people to have access to courts in case of any
violation of their human rights. In the case of M.H. Wadanrao Hoskot v. State of
Maharashtra, the Court held that the right to legal aid is one of the ingredients of fair
procedure.

If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional

and statutory right of appeal, for want of legal assistance, there is implicit in the court under
Article 142 read with Article 21 and 39-A of the Constitution, power to assign council for
such imprisoned individual for doing complete justice. 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 the ends of
justice so required, assign competent counsel for the prisoners defense, provided the
party doesn’t object to that lawyer.

1.9. Review of Literature

Lots of literature is available on rights of prisoners. Books are also available for the
protection of rights of under trials. The literature on constitutional laws, human rights,
books on Legal Services Authorities Act. The Criminal Procedure code and other laws
provide provisions for rights of prisoners including under trial prisoners. The reports
published by govt. of different committees established for tackle problems of prisoners are
also available. The statistical data given by National Crime records Bureau gives incite of
this problem.

1.10. Objectives:

This research is based on the following important objectives.

11
S. 383, Criminal Procedure Code
26
1. To study and analyze the legal provision with relation to the rights of
prisoners.
2. To study and analyze present position of implementation of these rights.

3. To make an analysis of right to free legal aid of under trail prisoners.

4. To illustrate grounds which imposes restrictions on the implementation of

abovementioned rights

5. To review the scope of legislature to enact a law for providing the right to
free legal aid to under trial prisoners.

Hence in the light of above objective of the research the title of the research is “Rights of
Prisoners with special reference to the Right to Free Legal Aid and its implementation in
the Dist. of Punjab.”

1.10. Hypothesis

The overall Hypothesis of the present study is as below.

1. Jails are overcrowded

2. Prisoners are not getting the basic rights.

3. Lack of will of authorities to implement the right to free legal aid.

4. Need to make drastic legislation to implement the rights.

1.11. Methodology:

The researcher would like to adopt the analytical method for the present research. The
research will rely upon Doctrinal and non doctrinal method for detailed research about the
topic. The doctrinal method includes an analysis of the judicial decisions of Indian Supreme
Court and various High Courts situated in India, Several policies framed by the
Government from time to time, Constitutional provisions and legislative enactments. This
research is predominantly based on the primary data.

The researcher would like to utilize sources of information by- Questioner, Interview, and
Observation techniques will be used for collection of data. Few in depth case studies will
be conducted to collect detailed information about implementation of legal norms and
difficulties if any in their compliance. For above objectives both primary and secondary
data will be collected through primary and secondary sources of data collection. Primary
data will be collected, by administering an interview schedule directly with the
respondents. Secondary sources of data collection will be reports published by state and
27
central government, municipal reports, books, journals and periodicals.

1.12. Universe of study –

The present study will be confined and extends to the jails, Prisons situated in the district
of Punjab.

1.13. Scope of the Study-

Rights of prisoners with special reference to right to legal aid for under trial prisoners in
dist. of Punjab is mainly concentrated on prison system in Punjab dist. as an Empirical
Research based on mainly primarily and secondary data available. Researcher is mainly
focusing on the problems of Equality & Equity in providing Rights prisoners form Punjab
jail and for the upliftment of the grass root level people with the mainstream of the society.

1.14. Limitation on Study -

It covers a vast area so that it is difficult to study all the parts in an empirical study in
Punjab, so it is necessary to delimit the study. Hence the researcher had decided to carry out
Empirical study as Socio-Legal Research in Punjab dist mainly in Punjab jail to give
precise overview of rights of prisoners in Punjab.

1.15. Relevance of the Study -

This Research has been mainly carried out by the researcher to study the concept of rights
of prisoners in Punjab, State of Maharashtra, India on the right based approach. Researcher
had also studied various problems in different perspectives regarding prisoner’s rights. It is
feasible to the Researcher to go and visit jails in Punjab city so researcher had done
Empirical legal Research.

1.16. SCHEME OF CHAPTERISATION-

CHAPTER I: Introduction

The first chapter may consist of background and position of prisoners in India, their
problems, scope and significance of study Statement of the research problem, deals with the
review of literature in general and also with specific reference to Punjab District. It
discusses the various theoretical strands-Objectives of the study- Hypothesis-Research
Design and Methodology-Relevance of the Study-Chapter Scheme and Brief outline of the
study.

28
CHAPTER II: Prisoner’s Rights: National and International Perspectives

Second chapter may consist of meaning nature and rights of prisoners in general as well as
it may deal with national legislations and constitutional perspectives and international
conventions treaties and protections provided for the protection of rights of prisoners.
CHAPTER III: Role of Supreme Court on Rights of Prisoners in India

Third chapter may consists of rights provided for prisoners as well as other legislative
provisions specifically providing rights of prisoners in India and also mainly concentrate on
role of judiciary in implementing rights of prisoners by study of different cases.
CHAPTER IV: Right to free legal aid Legislative and Judicial perspectives Fourth
chapter may consists of constitutional rights proving for prisoners a right to free legal aid
as well as other legislative provisions specifically providing right to free legal aid to
under trial prisoners in India and also concentrate on case studies to show the role of
judiciary in implementing right to free legal aid for under trial prisoners.
CHAPTER V: Study of under trials in dist. of Punjab

Sixth chapter states about analytical study through different sources of data collection
about under trial prisoners their status, problems and perspectives. This chapter is about the
result of the study and its analysis. The last part of this chapter gives observations and
findings of the study.
CHAPTER VI: Conclusion and Suggestions

The last chapter includes suggestions drawn from the study conducted, on the basis of
information gathered and analysis made on the subject matter

29
 CHAPTER II
CONSTITUTIONAL PROTECTION AND ROLE OF
JUDICIARY FOR UNDER TRIAL PRISONERS
2. Introduction

The role of Supreme Court in the past few years in introducing jail reforms has been
admirable. Supreme Court in its various judgments tries to protect the rights and freedoms
of citizens of India including rights and freedoms of prisoners. Supreme Court while
extending the horizons of constitutional rights has given wide interpretation to
constitutional provisions.

The Supreme Court of India has been active in responding human rights of prisoners. They
have given different category of rights to the prisoners during detention which are
specifically recognized under Indian laws as well as under principles of international
covenants. Following are some of the assumptions based upon which Supreme Court has
given these basic rights even to the prisoners.12

 Convicts are not by mere reason of the conviction denuded of all the fundamental
rights which they otherwise possess.

 Like you and me, prisoners are also human beings. Hence, all such rights except
those that are taken away in the legitimate process of incarceration still remain with the
prisoner. These include rights that are related to the protection of basic human dignity as
well as those for the development of the prisoner into a better human being.

 If a person commits any crime, it does not mean that by committing a crime, he or
she ceases to be a human being and that he or she can be deprived of those aspects of life
which constitutes human dignity.

 It is increasingly being recognized that a citizen does not cease to be a citizen just
because he or she has become a prisoner.

 The convicted persons go to prisons as punishment and not for punishment. Prison
sentence has to be carried out as per the courts orders and no additional punishment can be
inflicted by the prison authorities without sanction.

Prisoners depend on prison authorities for almost all of their day to day needs, and the state
possesses control over their life and liberty. Prison authorities have to be, therefore,
12
Sunetra Choudhary, Behind Bars: Prison Tales of India's Most Famous, (Roli Books; First Edition,
11 April 2017)
30
 accountable for the manner in which they exercise their custody over persons in their care,
especially as regards their wide discretionary powers.

 Imprisonment as punishment is now rethought of as rehabilitative punishment. The

rehabilitative model argues that the purpose of incarceration is to reform inmates through
educational, training, and counseling programmes. This development and growth requires
certain human rights without which no reformation takes place.

 Disturbing conditions of the prison and violation of the basic human rights such as
custodial deaths, physical violence or torture, polce excess, degrading treatment, custodial
rape, poor quality of food, lack of water supply, poor health system support, not producing
the prisoners to the court, unjustified prolonged incarceration, forced labour and other
problems observed by the apex court have led to judicial activism.

 Overcrowded prisons, prolonged detention of under trial prisoners, unsatisfactory

living condition and allegations of indifferent and even inhuman behavior by prison staff
has repeatedly attracted the attention of critics over the years.

Definition of under trial Prisioners

 As per Cambridge Dictionary under trial is “A person who is appearing in

a law court because they have been accused of committing a crime”13

 The 78th Report of Law Commission also includes a person who is in judicial
custody on remand during investigation in the definition of an ‘undertrial’. 14

Some of the relevant cases interpreting the rights of prisoners are as follows.

2.1. Right to Protection of life and liberty –

Article 21 is the heart and soul of Indian constitution, it provides basic human right that
“No person shall be denied right to life and personal liberty, except procedure established
by the law”. Article 21 provides for right to life and liberty to every person either citizen or

13
Meaning of under trial, Available at: https://dictionary.cambridge.org/dictionary/english/undertrial,
last visited on October 2023
14
[Burning Issue] Problem of Undertrials in India Available at: https://www.civilsdaily.com/burning-
issue-problem-of-undertrials-in-india/ last visited on October 2023
31
 non citizen, this right can be taken away only with the procedure established by the law.
Supreme Court has developed human rights jurisprudence for the protection and
preservation of rights of prisoners through interpretation of Article 21. Supreme Court in its
various judgments specified that prisoners being a human being cannot be denied of basic
human rights. Right to life and liberty in a limited space is available even to prisoners. It
can be taken away only with the procedure established by the law.15

In case of Maneka Gandhi v. Union of India16 Supreme Court mentioned that denial of
Article 21 can be justifying only accordance with the procedure established by the law. The
Apex court opened new dimensions to Article 21 and led down that, the procedure cannot
be arbitrary, unfair or unreasonable it must be just fair and reasonable. The trial with all
reasonable aspects of fair trial including right to be heard, right to appoint legal practitioner
of his own choice, independent and impartial judiciary, right to legal aid, right to speedy
trial, etc.

In another case of Fancis Coralie Mullin v/s The Administrator 17 Supreme Court held that
the procedure must be just fair and reasonable and not arbitrary whimsical or fanciful.

2.2. Right to speedy trial –

Justice delayed said to be justice denied, a prolonged justice cannot be considered to be a

valid justice, so the right to speedy trial is essential for proper justice. It is responsibility of
state to ensure speedy justice to the trial awaiting prisoners. Article 21 of India constitution
provides for right to life and liberty which can be taken away with procedure established by
the law. The procedure provided under Article 21 must be just, fair & reasonable procedure.
Right to speedy trial is the basic ingredient of just, fair & reasonable trial.

Section 309 of criminal procedure court provides for speedy trial its states that as soon as
the hearing starts the court has to conduct the proceeding day today. The criminal judicial
system in India is based on the assumption of presumption of innocence. The court is under
mandate to take the cognizance of accusation and conclude the trial expeditiously so as to
protect the assumption of innocence without causing undue harassment and prejudice to
under trial prisoners. It is absolutely necessary that the offence should be expeditiously trial
so that in case of rejection of bail the accused person does not remain in jail more than the
necessary period.18

15
Anju Vali Tikoo, Mentally Ill Undertrial Prisoners- A Human Rights Perspective, (Bharatiya Vidya
Prakashan, Delhi, 2022)
16
AIR 1978 SC 597
17
AIR 1981 SC 746
18
Girish Kathpalia, Criminology And Prison Reforms, (Lexis Nexis Publication, 2023 Edition).
32
 In case of A.R. Antulay v. R.S. Nayak19 court held that right to speedy trial is a basic part of
right to life and liberty provided under Article 21 of constitution and are available to
accused in all stages of proceeding including investigation, inquiry, trial, appeal or revision.

In landmark judgment of Maneka Gandhi’s case Supreme Court expressed right to speedy
trial as a fundamental right further enforcement of right to life and personal liberty
expressed under Article 21 of Indian Constitution. However in another case Hussainara
Khatoon v/s State of Bihar20 Supreme Court considered the problem of speedy trial court
observed that there can be little doubt after the dynamic interpretations placed by this court
on Article 21 in Maneka Gandhi vs. Union of India 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 conflict with the requirement of the Article." In this
case a news expressed in Indian express stating about the position of under trial prisoners in
Bihar jail expressed that some of the under trials had spent more time in jails exceeding
their maximum punishment for that offence, a large number of men and women including
children behind the prison bars for years awaiting for trial in court of law. Most of them are
arrested and detained for petty or trivial matters which even though proved would not
attract punishment more than one or two years. Some of them had also not produce before
the court for consideration. In this case Supreme Court while issuing writ of Habeas Corpus
for under-trials stated that;21

"The information contained in these newspaper cuttings is most distressing and it is

sufficient to stir the conscience and disturb the equanimity of any socially motivated lawyer
or judge. Some of the under trial prisoners whose names are given in the newspaper
cuttings have been in jail for as many as 5, 7, or 9 years and a few of them for even more
than 10 years without their trial being begun. 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. One reason why our legal and judicial system continually denies
justice to the poor by keeping them for long years in pretrial detention is our highly
unsatisfactory bail system. This system of bail operates very harshly against the poor and it
is only the non-poor who are able to take advantage of it by getting them released on bail.
The poor find it difficult to furnish bail even without sureties because very often the
amount of bail fixed by the courts is so unrealistically excessive that in a majority of cases

19
AIR 1988 SC 1531.
20
(1980) 1 SCC 91.
21
Sunil Kumar Gupta, A Compendium of Prison Laws, (Thomson Reuters, 2022)
33
 the poor are unable to satisfy the police or the magistrate about their solvency for the
amount of the bail and where the bail is with sureties as is usually the case, it becomes an
almost impossible task for the poor to find persons sufficiently solvent to stand as sureties”.

In this case court held that “State cannot avoid its constitutional obligation to provide
speedy trial to the accused by pleading financial or administrative inability. The State is
under the Constitutional mandate to ensure speedy trial and whatever is necessary for this
purpose has to be done by the State. It is also the Constitutional obligation of this Court as
the guardian of the fundamental rights of the people, as a sentinel on the qui vie, to enforce
the fundamental right of the accused to speedy trial by issuing necessary directions to the
State which may include taking positive action, such as augmenting and strengthening the
investigative machinery, setting up new courts, building new court houses, providing more
staff and equipment to the courts, appointment of additional judges and other measures
calculated to ensure speedy trial.

In case of Mathew Areeparmtil and others v. State of Bihar 22 court has issued directions to
release the persons who are detailed in jail without trial. Court orders that the cases in
which tribal accused involve having punishment more than seven years should be a
released on execution of a personal bond. Where trials have been started accused should be
released on execution of personal bond. Where the cases in which proceedings has not yet
been started more than passing out three years since lodging of FIR the accused should be
released fourth with.23

In case of Raj Deo Sharma v. State of Bihar24 while considering the question of delay in
conduct of trial Supreme Court has issued following directions.

1. In cases where the trial is for an offence punishable with imprisonment for a period
not exceeding seven years, whether the accused is in jail or not, the court shall close the
prosecution evidence on completion of a period of two years from the date of recording the
plea of the accused on the charges framed whether the prosecution has examined all the
witnesses or not, within the said period and the court can proceed to the next step provided
by law for the trial of the case.

2. In such cases as mentioned above, if the accused has been in jail for a period of
22
1985 SCC (2) 102
23
Samridhi Sharma, RIGHTS OF PRISONERS (Edition 2021, Whitesmann Publication, 2023).
24
(1998) 7 SCC 507
34
 not less than one half of the maximum period of punishment prescribed for the offence, the
trial court shall release the accused on bail forthwith on such conditions as it deems fit.

If the offence under trial is punishable with imprisonment for a period exceeding 7 years,
whether the accused is in jail or not, the court shall close the prosecution evidence on
completion of three years from the date of recording the plea of the accused on the charge
framed, whether the prosecution has examined all the witnesses or not within the said
period and the court can proceed to the next step provided by law for the trial of the case.

In case of Shaheen Welfare Association v. Union of India and others 25 court observe that if
it is not practicable to release under trial prisoner on bail in serious matters, right to speedy
trial will meet the requirement of Article 21 of Indian Constitution.

2.3. Right to life liberty & freedoms –

Right to proper classification of prisoners on the basis of their age, sex, nature of case is
essential for preservation of their human rights. In case of Sunil Batra v/s Delhi
administration26 court held that, “the test of reasonableness provided under article 19 and
Article 21 of India constitution can be practiced by keeping covets & under trial in separate
jails.

Solitary confinement is also said to be violation of Article 21 as it denies the liberty to

move, mix, mingle, talk, Share Company with co-prisoners, unless it is backing of law 27.
Solitary confinement in a general sense means segregation of prisoners from other
prisoners means the isolation of prisoners. Under Indian penal code provisions has been
incorporated for solitary confinement.28 It provides that only the cases in which rigorous
imprisonment can be awarded the prisoner can be punished with solitary confinement. As
per rule if the offence is punishable more than six months maximum one month solitary
confinement can be awarded. If offence is punishable with more than six months but less
than one year maximum two months solitary confinement can be awarded and if offence is
punishable more than one year maximum term of solitary confinement will be three
months. Solitary confinement exceeding three months can violation of rules under Indian
penal code. As per rule maximum fourteen days imprisonment can be given at a time. There

25
(1994)6 SCC 731
26
1980 AIR 1579
27
Charles Sobhraj v/s State, 1996 Cri.L.J 3354
28
Sanjoy Hazarika, Madhurima Dhanuka, Hope Behind Bars: Notes from Indian Prisons, (Pan
Macmillan India, 5 January 2022).
35
 should be gap of same days between two solitary confinements. If the offence is punishable
with more than three months the maximum days for awarding solitary confinement at a
time should not exceed more than seven days.

However some of the instance shows that grave violation of these provisions. Supreme
Court have showed its strong view against solitary confinement and held that solitary
confinement is highly degrading and dehumanizing effect on prisoners. Court has taken
view that it could be imposed only in exceptional cases such as where the convict was of
very dangerous character and must be segregated from other prisoners.

In case of Sunil Batra (I) v/s Delhi administration 29 while considering the validity of
solitary confinement Supreme Court has strongly reacted against putting the bars and
fetters to the prisoners. Supreme Court says that continuously keeping prisoners in fetters
day and night denies the prisoners their human dignity and can be treated as animal
treatment. Such treatment was so cruel and unusual and against the spirit of Indian
constitution.

Right to movement or liberty can also be denied if bar-fetters would applied to the
prisoners unless it has authority of law30

2.4. Rights of arrested person –

Article 22 of Indian constitution to guarantees rights to arrested person along with these
rights Supreme Court also provided guidelines while arresting a person. Those guidelines
are as follows.

 Arrest are not be made in a routine manner. The officer making the arrest must be
able to justify its necessity on the basis of some preliminary investigation.

 An arrested person should be allowed to inform a friend or relative about the arrest
and where s/he is being held. The arresting officer must inform the arrested person when
s/he is brought to the police station and is required to make an entry in the diary as to whom
the information was given.

 It is the duty of the magistrate before whom the arrested person is produced to
satisfy her or him that the above requirements have been complied with.

29
1980 AIR 1579
30
Charles Sobhraj v/s State, 1996 CriLJ 3354
36
 Article 22 of Indian Constitution guarantees rights of arrested persons. These are the
mandates to be followed by police and prison authorities during arrest and detention.
Supreme Court in a land mark judgment of D.K. Basu v/s State of West Bengal 31 has given
different guidelines for protecting human rights of accused. Those guidelines were as
follows.32

 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.

 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 at least 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 he countersigned by the arrestee and shall
contain the time and dale of arrest.

 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.

 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 Organization in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the arrest.

 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.

 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.

 The arrestee should, where he so requests, be also examined at the time of his arrest
31
AIR 1997 SC 610
32
Andrew, A. Jeffry, and M. Athma Rubavathi. "Issues of the under trial prisoners and their legal
status." Indian JL & Legal Rsch. 3 (2021)
37
 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
executing the arrest and its copy provided to the arrestee.

 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 panel for all Tahsils and Districts as well. 33

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

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

 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
al the police control room it should be displayed on a conspicuous police, board.

2.5. Protection from handcuffs and fetters –

Article 21 of Indian constitution provides for right to life and personal liberty. Supreme
Court in its judgment provided that right to life not only includes only right to give but
guarantees right to life if human dignity and denies mere animal existence. Article 19 of
Indian constitution provides for freedom of movement the prisoners which is in detention
also have a limited right of movement. Application of handcuffs and fetters shall deny their
right to life and freedom of movement specified under Article 19 and Article 21 of Indian
Constitutions. Application of handcuffs and fetters also denies human dignity and
considered as mere animal existence.

Supreme Court in its judgment provide that an arrested person and under trial prisoner
should not be subjected to handcuffing excepting justifying circumstances. An accused that
is not having tendency to escape and tried for or convicted in bailable offence was not
needed to be handcuffed while taking from prison to court or court to prison.34

33
Kumar, Dr Piyush, and Advocate Anupama. "What is the Impact of Alcohol ban on Prevalence of
Undertrial Prisoners of Liquor & Narcotics Drugs related Acts violation in Bihar-A twelve year (2010-
2021) comparative cross-sectional study." SSRN (2022).
34
Borah, Keshabananda. "A Critical Introspection on the Enjoyment of Legal Rights by Women
Undertrial Prisoners in Central Jails of Assam." Indian Journal of Gender Studies 28 (2), (2021).
38
 In case of Prem Shankar Shukla v/s Delhi Administration35 Supreme Court observed that
using handcuffs and bar fetters on prisoners violates the guarantees of basic human dignity,
this practice can be against the principles set out under Indian Constitution i.e. Article 21
right to life, Article 19 fundamental freedoms and Article 14 right to equality. In this case
Supreme Court held that handcuffs must be the last refuge as there are other ways for
ensuring security. There must be material sufficiently available to satisfy a reasonable mind
that there is clear and present danger of escape of the prisoner who is being transported by
breaking out of police control. In the said case, the following directives were given in
respect of Handcuffing:

 Handcuffs are to be used only if a person is :

o involved in serious non-bailable offences, has been previously convicted of a

crime: and /or

o is of desperate character violent, disorderly or obstructive: and /or

o is likely to commit suicide: and /or

o is likely to attempt escape.

 The reasons why handcuffs have been used must be clearly mentioned in the Daily
Diary Report. They must also be shown to the court.

 Once an arrested person is produced before the court, the escorting officer must
take the court’s permission before handcuffing her/him to and from the court to the place of
custody.

 The magistrate before whom an arrested person is produced must inquire whether
handcuffs or fetters have been used. If the answer is yes, the officer concerned must give an
explanation.

The Supreme Court in the case of Citizens for Democracy v. State of Assam36 has given the
following rules pertaining to handcuffing of the accused:

 As a rule handcuffs or other fetters shall not be forced on prisoners convicted or

under-trial –while lodged in a Jail anywhere in the country or while transporting or in
transit from one Jail to another or from Jail to Court or back. The Police and the Jail

35
AIR 1980 SC 1535: 1980 SCC 526
36
1995 (3) SCR 943
39
authorities, on their own, shall have no authority to direct the handcuffing of any inmate of
the Jail in the country or during transport from one Jail to another or from Jail to Court or
back.

Where the Police or the Jail authorities have well grounded basis for drawing a strong
inference that a particular prisoner is likely to jump Jail or break out of the custody then
said prisoner be produced before the Magistrate concerned and a prayer for permission to
handcuff the prisoner be made before the said Magistrate. In rare cases of concrete proof
regarding proneness of the prisoner to violence, his tendency to escape, he being too
dangerous / desperate and finding no other practical way of forbidding escape is available,
the Magistrate may grant permission to handcuff the prisoner.

 In all the cases where a person arrested by Police, is produced before the
Magistrate and remand-judicial or non-judicial- is given by the Magistrate, the person
concerned shall not be handcuffed unless special orders in that respect is obtained from the
Magistrate at the time of the grant of the remand.

 When the Police arrests a person in execution of a warrant of arrest obtained from a
Magistrate, the person arrested shall not be handcuffed unless the police has also obtained
orders from the Magistrate for the handcuffing of the person to be so arrested. Where a
person is arrested by the Police without warrant, the Police Officer concerned may if he is
satisfied, on the basis of the guidelines given by the Supreme Court, that it is necessary to
handcuff such person, he may do so till the time he is taken to the Police Station and
thereafter his production before the Magistrate.

The above restrictions on the right of the police to handcuff the accused have created lot of
practical difficulties. It is not always easy to prevent the accused from escaping. At the
same time it is necessary to ensure that this power is not misused. Now a day’s accused are
becoming more daring and are even prepared to risk their life to escape, it may be
necessary in larger public interest to remove the onerous restrictions now placed on the
right of the Police Officer to handcuff the suspect.

2.6. Rights of detainee during emergency –

Under the constitution of India provisions are made in case of emergency. In case of threat
to national security or external aggression national emergency can be proclaimed by the
president of India. In case of financial instability or financial hardship at national level
financial emergency can be proclaimed. In case of threat of state security or state disorder
state emergency can be proclaimed by the governor of the state. The emergency can be
continuing for the period of six months at a time it can be extended for next six months. In
case of emergency the rights provided under part three of Indian constitution relating to
40
 fundamental rights can be suspended during the period of emergency. However some of the
rights such as right to life and liberty, right to security, right to equality, freedom from
conviction in certain cases, etc. cannot be suspended even during emergency. In case of
ADM Jabalpur v/s Shiv Kant Shukla37 Supreme Court contended that Article 21 is the sole
repository of life and liberty and during the emergency when liberty suspended but right to
life cannot be suspended.

2.7. Right to have interview with family members, friends and lawyers –

Under criminal procedure code as well as under constitution of India the important right to
inform his family members, friends or even right to have a legal advisor of his own choice
has been assigned to the accused. It is also the basic human right of accused to represent
him and defend himself through competent lawyer of his own choice. In case of Francies
Corale Mullin v/s the Administrator Union Territory of Delhi & others,38 Supreme Court
while holding this right important held that right to life and liberty including in his right to
live with human dignity and therefore the detainee is entitled to have interviews with
family members, friends and lawyers without severe restrictions. In another case of Sunil
Batra(II) v/s Delhi Administration,39 Supreme Court recognize right to be visited by friends
and family members of prisoner as a basic human right however it must be exercised
subject to search and discipline and other security criteria’s. Court held that this right
however cannot be exercised freely only by going outside the jail.

In case of Joginder Kumar v. State of UP and others40, court observe that whenever a
public servant is arrested the matter should immediately be communicated before his arrest
to his superior officer, if not possible before the arrest it should be communicate
immediately after the arrest. In case of arrest of members of Army, Navy or Air force
intimation should immediately be send to the officer commanding the unit to which the
accused is member. If any member of Lok sabha or Rajya sabha or a member of legislative
council or assembly be arrested on a criminal charge under the orders of executive
magistrate it is the responsibility of executive magistrate to inform to the speaker of
concerned parliamentary unit without undue delay.

Section 56(1) of police and criminal evidence act, 1984 provides that where a person has
been arrested and is being held in custody in a police station or other premises, he shall be
entitled, if he so requests, to have one friend or relative or other person who is known to
him or who is likely to take an interest in his welfare told, as soon as is practicable except

37
AIR 1976 SC 1207
38
AIR 1981 SC 746
39
1980 AIR 1579
40
AIR 1994 SC 1349
41
 to the extent that delay is permitted by this section, that he has been arrested and is being
detained there.

Supreme Court issued following directions so as to give effective enforcement of this right
provided under Article 21 and Article 22 of Indian Constitutions.

 An arrested person being held in custody is entitled, if he so requests to have one

friend relative or other person who is known to him or likely to take an interest in his
welfare told as far as is practicable that he has been arrested and where is being detained.

 The Police Officer shall inform the arrested person when he is brought to the police
station of this right.

 An entry shall be required to be made in the Diary as to who was informed of the
arrest.

These protections from power must be held to flow from Articles 21 and 22(1) and
enforced strictly.

Right to have interview friends, relatives and lawyers is not only important so as to protect
the physical comfort of prisoner but also necessary to save him from mental torture. Right
to life and liberty provided under Article 21 not only include as human dignity but also
deny mere animal existence. Right to interview with family members is clearly a part of
personal liberty provided under Article 21 of constitution.

Article 22(1) of Indian constitution as well as Sec. 41 of criminal procedure code directs
that no person who is arrested shall be denied the right to consult and to be defended by a
legal practitioner of his choice. In number of cases Supreme Court provided that the right
of accused to consult with advocate of his choice as a basic right under Article 21 of Indian
constitution. In case of Dharambir v. State of U.P.41, the court directed the state government
to allow family members to visit the prisoners at least once a year or for the prisoner at
least once a year to visit their families under guarded conditions. In Sheela Barse v. State of
Maharashtra42 the court held that interviews of the prisoners become necessary as
otherwise the correct information may not be collected but such access has got to be
controlled and regulated. In case of Hussainara Khatoon v. Home secretary Bihar43,
Supreme Court held that it is constitutional right of every accused person who is unable to
engage a lawyer of his choice because of poverty, indigence or incommunicable situation
he is entitled to free legal service provided by state in the interest of justice, equity and
good conscience.
41
(1979) 3 SCC 645
42
AIR 1983 SC 378/ 1983 SCC 96, 1987 SCC 596
43
AIR 1976 SC 1360
42
 2.8. Right to expression –

Article 19 as well as Article 21 of Indian constitution provides for freedom of speech and
expression. Right to expression is said to be one of the essential part of right to liberty. The
prisoners also have to some extend right to liberty they have right to express themselves
even if in jails. In case of State of Maharashtra v/s Prabhakar Pandurang 44, the court held
that right to write a book and get it published cannot be consider as violation of Article 21.
In another case of Rajagopal Alias R.R. Gopal and others v/s State of Tamil Nadu 45, the
question before the court arises about right to privacy and right to press while answering
the same question Supreme Court held that petitioners have right to publish of their life
story or autobiography in so far as it appears from the public records even without his
consent or authorization. But if they go beyond that and somebody publish his life story
they may invade his right of privacy similarly state or its officials cannot prevent or restrain
the said publication.

2.9. Freedom from self incrimination –

Article 20 (3) of Indian constitution provides rule against self incrimination. To provides
that no one can be compelled to be a witness against himself. It is the responsibility of the
judge or magistrate that to inform the accused about this right that he is not under
obligation to state something against himself. Even the police personnel are also prohibited
from applying corrective means during investigation for obtaining information from
accused. The confession recorded before the police officer is also not acceptable during
evidence unless it is not corroborated by other evidence.46

The SC gave the principles with regard to confession in the case of Rabindra Kumar Pal
Alias Dara Singh v. Republic of India, those principles with regard to Confession:

 The provisions of Section 164 Cr.P.C. must be complied with not only in form, but
also in essence.

 Before proceeding to record the confessional statement, a searching enquiry must

be made from the accused as to the custody from which he was produced and the treatment
he had been receiving in such custody in order to ensure that there is no scope for doubt of

44
AIR 1966 SC 424
45
AIR 1995 SC 264
46
Amrit, Pratyay, Anshika Jaiswal, Vaibhav Uniyal, Radhey Shyam Jha, and Ambar Srivastava.
"Prisoner’s rights and prison reform in India: A legal critique." International Journal of Health
Sciences 6, no. 3 (2022).
43
 any sort of extraneous influence proceeding from a source interested in the prosecution.

 A Magistrate should ask the accused as to why he wants to make a statement that
surely shall go against his interest in the trial.

 He should be assured of protection from any sort of apprehended torture or

pressure from the police in case he declines to make a confessional statement.

 A judicial confession not given voluntarily is unreliable, more so, when such a
confession is retracted, the conviction cannot be based on such retracted judicial
confession.

 Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate’s

jurisdiction to record the confession and renders the confession unworthy of

 During the time of reflection, the accused should be completely out of police
influence. The judicial officer, who is entrusted with the duty of recording confession, must
apply his judicial mind to ascertain and satisfy his conscience that the statement of the
accused is not on account of any extraneous influence on him.

 At the time of recording the statement of the accused, no police or police official
shall be present in the open court.47

 Confession of a co-accused is a weak type of evidence.

 Usually the Court requires some corroboration from the confessional statement
before convicting the accused person on such a statement.

With the advancement of society and technology new techniques has been developed so as
to fetch information from prisoners such as Narco Analysis test, brain mapping test or
polygraph test, etc. These tests were adopted in many cases such as the case of Abdul
Telagi, Arushi Talwar, and Abu Salem and so on, so as to obtain information about crime
from these prisoners. However Supreme Court in case of Selvi v. State of Karnataka48 in
2010 declared that Narco Analysis polygraph test and brain mapping test is unconstitutional
and violation of human rights. Further in this case courts says that a person can be
subjected to such test when accused ascents or consents for them. The result of the test will
not be considered as evidence but can be used for the purpose of investigation. Supreme
Court accepted that these tests were violation of Article 20 (3) of Indian constitution which
lays down that person cannot be forced to give evidence against him. Court also directed
47
Raghavan, Vijay. "Prisons and the pandemic: the panopticon plays out." Journal of Social and
Economic Development 23, no. Suppl 2 (2021).
48
(2010) 7 SCC 263
44
 the investigation agencies that directives by National Human Right Commission should be
strictly followed while conducting such tests.

2.10. Right to legal aid –

The 42nd Amendment in 1976 has inserted Article 39A under Indian constitution as a part of
Directive Principles of State Policies. Article 39 A provides for right to free legal aid to
needy and poor people. Right to be defended by a legal practitioner is the basic right of
prisoner guarantee under Article 21 of Indian constitution therefore if the prisoners or under
trial prisoner is not in a capacity to appoint a legal practitioner for his defense because of
illiteracy, poverty and by other reasons, it is right of accused to get lawyer at the expenses
of state.49

Article 39A consists of part of directive principles which is not enforceable in courts of
law. Supreme Court in its various judgments included this right under Article 21 of Indian
constitution as basic ingredient for right to life and liberty. The criminal procedure code
also provides responsibility on Sessions Court that in the event if accused is not represented
by competent lawyer court must provide him with lawyer otherwise the proceeding or trial
will be considered as null and void. The parliament also enacted Legal Services Authorities
Act 1987 so as to guarantee right to free legal aid to the accused. As per provisions of legal
services authorities act institutions at National, State, District and Taluka level has been
established for enforcement of this right.

In case of M.H. Hosket v. State of Maharashtra a three judges bench of Supreme Court
while reading Article 21 and 39A along with Article 142 and section 304 Cr.PC declared
that government as under duty to provide legal services to the accused person.

2.11. Right to reasonable wages in prison –

Under directive principles of state policy the constitution of India provides right to work
has one of the economical rights of human being. It also recognizes right to have minimum
wages for every work also one of the important right under directive principles. The
international convention on prevention of forced and compulsory labour also provides that
49
Kumar, Praveen, Anand Kumar Banshkar, Shubhendu Shekhar, and KM Pushpa Rani. "Prisoners
Are Too ‘Victims’ of the Criminal Justice System. Can They Have an Idea of ‘Fair Access to
Justice’?." Journal of Victimology and Victim Justice 5, no. 2 (2022).
45
 no one shall be subjected to forced and compulsory labour. Article 23 of Indian
constitutional also prohibits forced and compulsory labour. It provides that the payment or
remuneration is essential for every type of work. The person who works for remuneration
cannot be considered as forced labour however the practice of begging is strictly prohibited
by Indian constitution. The right to wages is essential right of every worker to provide his
labour or services. This right is available to free person in society as well as to the
prisoners.50

The prisoners are also equally liable for wages as per nature of service or labour provided
by them. Whenever during imprisonment the prisoners are made to work in the prison they
must be paid wages at the reasonable rate. The wages should not be below minimum
wages.

In case of Peoples Union For Democratic Rights v. Union Of India 51, court observe that
where a person provides labour or service to another or remuneration which is less than
minimum wage the labour or service provided by them clearly falls within the scope and
ambit of the words forced labour Article 23.

In case of Mohammad Giasuddin v. State of A.P.52, the court directed that the state to take
into account the wages should be paid at a reasonable rate; it should not be less than
minimum wages.

In case of Gurdev Singh v. State of Himachal Pradesh 53, court held that Article 23 of the
constitution prohibits forced labour and mandated that any contravention of such
prohibition shall be prohibited and be an offence punishable under the law. In this case
court has given following observations.

 It is lawful to employ the prisoners sentenced to rigorous imprisonment to do hard

labour whether he consents to do it or not.

 It is open to the jail officials to permit other prisoners also to do any work which

50
Majumder, Deblina. "Sustainable Development and Rights of Prisoners During Pandemic: An
Appraisal." In Future of Work and Business in Covid-19 Era: Proceedings of IMC-2021, pp. 187-197.
Singapore: Springer Nature Singapore, 2022.
51
AIR 1982 SC 1473
52
(1977) 3 SCC 287
53
AIR 1992 HP 70, 1992 CriLJ 2542
46
 they choose to do provide such prisoners make a request for that purpose.

 It is imperative that the prisoner should be paid equitable wages for the work done
by them. In order to determine the quantum of equitable wages payable to prisoners the
State concerned shall constitute a wage fixation body for making recommendations. We
direct each State to do so as early as possible.

 Until the State Government takes any decision on such recommendations every
prisoner must be paid wages for the work done by him at such rates or revised rates as the
Government concerned fixes in the light of the observations made above. For this purpose
we direct all the State Governments to fix the rate of such interim wages within six weeks
from today and report to this Court of compliance of this direction.54

 State concerned should make law for setting apart a portion of the wages earned by
the prisoners to be paid as compensation to deserving victims of the offence the
commission of which entailed the sentence of imprisonment to the prisoner, either directly
or through a common fund to be created for this purpose or in any other feasible mode.

2.12. Right to compensation –

The remedy of compensation is generally available in civil proceeding. Indian criminal

judicial system is based upon be accusatorial form of judicial system which is actually
accused oriented. This system does not provide any remedy in form of compensation to the
victim of crime. In this system the convict is only liable for imprisonment or fine for
violation of law. The fine is also a remedy available to the state, the amount of fine can be
credited in the state treasury as part of punishment.

However Supreme Court while is expanding the horizons of Article 21 provided that right
to compensation is also a part of right to life. In a landmark judgment of Rudal Shah v.
State of Bihar55 provides for right to compensation in case of illegal deprivation of personal
liberty. Court granted monetary compensation of Rs. 35000/- against the Bihar government
for keeping person in illegal detention for 14 years even after his acquittal. The decision of
Rudal Shah was important in two respects.

 It held that violation of a constitutional right can give rise to a civil liability
enforceable in a civil court and;

 It formulates the bases for a theory of liability under which a violation of the right

54
Chavan, Sangramjeet, And Rupal Rautdesai. "Overcrowding In Indian Prisons: During Pre Covid-19
And Ongoing Pandemic." Russian Law Journal 10, no. 3 (2022): 38-53.
55
AIR 1983 SC 1086
47
to personal liberty can give rise to a civil liability.

The decision focused on extreme concern to protect and preserve the fundamental right of
a citizen. It also calls for compensatory jurisprudence for illegal detention in prison.

2.13. Responsibility on State-

In furtherance of Prison reforms, the Judges set out guidelines to be prescribed and
followed which were as follows:

 The State shall take early steps to prepare in Hindi; a Prisoner’s Handbook and
circulates copies to bring legal awareness home to the inmates. Periodical jail bulletins
stating how improvements and rehabilitative programmes are brought into the prison may
create a fellowship which will ease tensions. A prisoner’s wall paper, which will freely
ventilate grievances, will also reduce stress.

 The State shall take steps to keep up to the Standard Minimum Rules for Treatment
of Prisoners recommended by the United Nations, especially those relating to work and
wages, treatment with dignity, community contact and correctional strategies. In this latter
aspect, the observations we have made of holistic development of personality shall be kept
in view.

 The Prisons Act needs rehabilitation and the Prison Manual total overhaul, even the
model manual being out of focus with healing goals. A correctional-cum- orientation course
is necessitous for the prison staff inculcating the constitutional values, therapeutic
approaches and tension-free management.

 The prisoners' rights shall be protected by the court by its writ jurisdiction plus
contempt power. To make this jurisdiction viable, free legal services to the prisoner
programmes shall be promoted by professional organizations recognized by the court such
as Free Legal Aid (Supreme Court) Society. The District Bar shall, we recommend, keep a
cell for prisoner relief.

2.14. Right to free legal aid to under-trial prisoner

The Latin maxim “ubi jus ibi remedium” signifies that every right has a remedy, for
violation of every right everyone has right to access the court. Right without remedy can be
considered as meaningless. Right to access to justice has been considered as basic human
right conferred by the common law. Right to remedy is also provided by article 32 of Indian
constitution. Under constitution of India for the enforcement of fundamental rights remedy
48
 in the form of writ jurisdiction has been provided under Article 32 of constitution to
Supreme Court as well as under Article 226 the powers are vested with High Court. 56

Right to representation in judicial tribunal is considering being important part of right to

access to justice. Unless, the person allowed to approach to court for enforcement of his
rights, the right to remedy is worthless. Right to representation includes right to be
represented through legal practitioner of his own choice. Under law the provisions are
made to provide this right of representation through proper advocate.

However under certain circumstances this right cannot be effectively enforced due to
various reasons such as poverty, illiteracy, indecency & other reasons. Person is not in a
position to appoint lawyer for his defense or representation. In such a situation right to
representation can be exercised through the process of legal aid.

Right to legal aid is provided by the constitution of India as well as other legislations.
Indian judiciary has also recognized this right as basic right for enforcement of fair, human
& efficient criminal judicial system. It is considered to be the foundation of other rights.

The term legal aid means a legal advice, assistance or support conduct of legal proceedings
in court of law. The facility of legal aid is also available even without any charge or fees.
This facility is available to poor, indigent, illiterate or even down trodden people of the
society those who has no means to appoint a lawyer of their choice. The prisoners and even
under trials are also included within the categories to which this facility can be availed.
Term legal aid not only restricted to legal assistance but also includes legal education,
access of information necessary for adjudication of matter.57

Legal aid to poor & weak is necessary for the preservation of rule of law which is
necessary for existence of orderly society. Unless and until poor or illiterate not legally
assisted he is denied equality and opportunity to seek justice. Legal aid means giving free
legal services to poor and needy people who are not in a condition to hire services of

56
Mishra, Pratibha. "A Study On Prolonged Incarceration Of Undertrials." Nyaayshastra L. Rev. 3
(2022).
57
Sharma, Ritu. "Right to Bail and Reform (a Mockery of the System) who gets Bail and who are
Deprived." IJPD
49
 lawyer for conduct of legal proceedings in court, tribunal or before judicial & quasi judicial
authorities. Legal aid is the method adapted to that no one should be deprived of
professional advice & help because of lack of funds.

3. International Perspectives of Right to Legal Aid

Right to legal aid is essential element in just and fair trial provided by principles of natural
justice. Universal Declaration of Human Rights provides that right to legal aid is essential
for the enforcement of right to fair trial as well as so as to safeguard fundamental fairness
and public trust in criminal judicial process 58. International Convention on Civil and
Political Rights, states that everyone should be entitled to be tried in his presence and to
defend himself in person or through legal assistance of his choice. It again provides that if
any one does not have legal assistance in such a case he has right to have such a legal
assistance in the interest of justice so required and even such right of legal assistance can be
availed without payment, in any such case if he does not have sufficient means to pay for
it.59

United Nations organization has drafted a draft on principles and guidelines on access to
legal aid in criminal justice system 60. This draft contains basic principles on access to legal
aid as well as guidelines on how to access to legal aid. First principle of the draft
recognizes that legal aid is an essential element of functioning criminal justice system that
is based on rule of law. Principle second of draft impose responsibility on the state that the
state should in act specific legislation and ensure that comprehensive legal aid system is
place that is accessible effective, sustainable and creditable. State should allocate necessary
human and financial resources to the legal aid system. State should ensure that even a
person who is arrested or detained or prosecuted for crime punishable by a term of
imprisonment or that penalty receives legal aid free of charge. The person can afford this
facility at all stages of criminal judicial process including post trial proceeding. State
should not discriminate while insuring provisions of legal aid to all persons. Principle seven
of the draft ensures that at the time of deprivation of liberty and prior to any questioning,
persons are informed of their right to legal aid and other procedural safeguards. State

58
Article 11 of Universal Declaration on Human Rights 1948
59
Article 14 of International Covenant on Civil and Political Rights 1966
60
Available at: https://www.unodc.org/documents/justice-and-
prison-reform/UN_principles_and_guidlines_on_access_to_legal_aid.pdf, last
accessed on October 2023
50
 should ensure that information on rights during the criminal justice process and legal aid
services is made freely available and accessible to the public.

Under the guidelines first guideline provides that persons whose means exceed the limits of
the means test but who cannot afford or do not have access to a lawyer in situations where
legal aid would have otherwise been granted. As per guidelines no. 3 state should introduce
measures

 To inform every person arrested or charged with a crime of his or her right to
remain silent, his or her right to consult with a legal aid provider before being interviewed
by the authorities and his or her right to be accompanied by an independent legal aid
provider while being interviewed;

 To prohibit any interviewing of a person by the police in the absence of a lawyer,

unless the person gives his or her informed and voluntary consent to waive the lawyer’s
presence; and to establish mechanisms for verifying the voluntary nature of the person’s
consent;

 To inform all foreign prisoners of their right to request contact with their Consular
authorities without delay;

 To ensure that persons have the opportunity to meet with a legal aid provider
promptly after their arrest;

 To enable every person who has been detained for any reason to imminently notify
a member of his or her family, or any other appropriate person of his or her choosing, of his
or her detention and location and of any imminent change of location; the competent
authority may, however, delay a notification if absolutely necessary, if provided for by law
and if the transmission of the information would hinder a criminal investigation; 61

 To provide the services of an interpreter who has no conflict of interest whenever

necessary;

 To assign a guardian, whenever necessary;

 To make available in police stations and places of detention the means to contact
legal aid providers;

 To ensure that suspects understand their rights;

 To ensure that a mechanism for complaining against torture or ill treatment is

61
Vij, Sohail. "A Critical Analysis of Major Prison Reforms in India and the Path Ahead." Issue 1
Indian JL & Legal Rsch. 4 (2022).
51
available.

As per guideline no. 11 to ensure legal aid system nationwide state should undertake
measures. To ensure effective implementation of their nationwide legal aid schemes state
may consider establishing a legal aid body or authority to provide administrator, coordinate
and monitor legal aid services.

4. National Perspective of Right to Legal Aid

Under the Preamble of Indian constitution provides common goal for its citizens as to
secure justice; social economic and political, liberty, equality and fraternity. The
constitution of India also guarantees right to constitutional remedies as a fundamental right.
This right of constitutional remedy can best be achieved by enforcement of right to free
legal aid.

Right to free legal aid has been inserted under Article 39 A of the constitution by 42 nd
amendment act 1976. Article 39 A provides for right to free legal aid however this right was
inserted under part IV of Indian constitution that is Directive Principles of State Policies,
which is not enforceable in courts of law.

Section 304 of Criminal Procedure Code lay down that if the accused does not have
sufficient means to engage a lawyer, the court must provide one for the defense of the
accused at the expense of the state. When accused facing a trial if not properly represented
through a competent lawyer, it is responsibility of court to provide him a lawyer at the cost
of state, failure to which the trial becomes vitiated. Court is bound to give lawyer form the
bar that should be well versed with the law and to be gets paid by the state government.

Order 33, rule 17 of Civil Procedure Code also made provisions for suit by or against
indigent person. If a person is indigent he can be exempted from court fees under civil
procedure code. Under Advocates Act 1961 specific responsibility also imposed upon
advocates by Bar Council Of India that advocate should provide free legal aid and free
legal assistance to poor and needy people.

52
The government of India passed a specific legislation in 1987 for the enforcement of right
to legal aid i.e. Legal Services Authorities Act 1987. This act provides exhaustive
provisions for legal aid. Different authorities at national, state, district and taluka level
where established for ensuring right to legal aid to needy and poor peoples. The Indian
judiciary also provides important role in ensuring right to free legal aid as basic human
right as well as part of right to fair trial through different cases.

The question of legal aid to poor or needy people was addressed in conferences of law
ministers since year 1952. In 1960 some guidelines were drawn by the government for legal
aid scheme. In October 1972 the government of India constituted a committee under the
chairmanship of Justice V.R. Krishna Iyer the then member of law commission to formulate
a practical and workable scheme for legal aid. In 1973 justice Krishna Iyer submitted his
report titled as “Processual Justice to the People” and provide for establishment of legal aid
system in India. In 1976 government of India appointed another committee consisting of
Justice P.N. Bhagwati as chairman and Justice V.R. Krishna Iyer as member. This
committee submitted its report in 1977 titled as report on National Juridicare: Equal Justice
Social Justice. The major recommendations of this committee are as follows.

 Setting up state legal aid boards and legal aid committees at district,
taluk/tahsil/block levels as well as at Supreme Court and High Court levels.

 Legal aid programmes should be based on the socio-economic conditions

prevailing in the country.

 Prepare and encourage social workers for Para Legal Services.

 Nyaya Panchayats may be constituted and encouraged.

In year 1976 Article 39 A was inserted under Constitution of India by 42 nd amendment for
providing right to legal aid as one of the directives of state policy. It states that “It is the
duty of the State to see that the legal system promotes justice on the basis of equal
opportunity for all its citizens. It must therefore arrange to provide free legal aid to those
who cannot access justice due to economic and other disabilities.”

To give effect to recommendations of Justice Bhagwati Committee in 1980 government of

India constituted the Committee for Implementing Legal Aid Schemes (CILAS). The object
53
of CILAS as follows.

 to formulate specific legal aid schemes

 to monitor implementation

 to take steps for implementation

In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid
programs throughout the country on a uniform pattern. This act was enacted so as to give
effect to the mandates of Constitutions under Article 14 and 39A of Indian Constitutions.
The object of this act to provide access to justice to all equally it should not be denied
merely on the ground of economic disability. Important provisions of Legal Services
Authorities Act are as follows.

Section 2(c) of this act provides definitions of legal services means legal service includes
the rendering of any service in the conduct of any case or other legal proceeding before any
court or authority or tribunal and giving of advice on any legal matter. Legal services
ensures that people get information, advice and legal help by providing advocate at the
expenses of state or paying court fee on behalf of the eligible person or bearing expenses
require for preparation of documents.

5. Eligibility for legal aid

Section 12 of Legal Services Authorities’ Act 1987 describes criteria for giving legal aid to
eligible person. It provides that –

"Every person who has to file or defend a case shall be entitled to legal services under this
Act if that person is –

 a member of a Scheduled Caste or Scheduled Tribe;

 a victim of trafficking in human beings or beggar as referred to in Article 23 of the

Constitution;

 a woman or a child;

 a mentally ill or otherwise disabled person;

 a person under circumstances of undeserved want such as being a victim of a mass

disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or
54
  an industrial workman; or

 in custody, including custody in a protective home within the meaning of clause

(g) of section 2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a
juvenile home within the meaning of clause of section 2 of the Juvenile Justice Act, 1986
(53 of 1986) or in a psychiatric hospital or psychiatric nursing home within the meaning of
clause (g) of section 2 of the Mental Health Act, 1987 (14 of 1987); or

 in receipt of annual income less than rupees nine thousand or such other higher
amount as may be prescribed by the State Govt., if the case is before a court other than the
Supreme Court, and less than rupees twelve thousand or such other higher amount as may
be prescribed by the Central Govt., if the case is before the Supreme Court." 62

6. Nature of Free Legal Services

Free legal services entail the provision of free legal aid in civil and criminal matters for
those poor and marginalized people who cannot afford the services of a lawyer for the
conduct of a case or a legal proceeding in any court, tribunal or before an authority.

Provision of free legal aid may include:

 Representation by an Advocate in legal proceedings.

 Preparation of pleadings, memo of appeal, paper book including printing and

translation of documents in legal proceedings;

 Drafting of legal documents, special leave petition etc.

 Rendering of any service in the conduct of any case or other legal proceeding
before any court or other Authority or tribunal and;

 Giving of advice on any legal matter.

Free Legal Services also include provision of aid and advice to the beneficiaries to access
the benefits under the welfare statutes and schemes framed by the Central Government or
the State Government and to ensure access to justice in any other manner. 63

7. Services offered by the legal service authority –

 payment of court and other process fee

62
Section 12 of Legal Services Authorities’ Act 1987
63
http://nalsa.gov.in/content/nature-free-legal-services
55
 charges for preparing, drafting and filing of any legal proceeding

 charges of legal practitioner or legal advisor

 Cost of obtaining decrees, judgments, orders and any other document in legal
proceedings.

 Cost of paper work including printing, translation etc.

8. Grounds for rejection of Legal Aid

 If the applicant has adequate means to access justice or

 If he does not fulfill the eligibility criteria or

 Has no merit in his application requiring legal action.

9. Grounds for Withdrawn of Legal Services

A legal services committee can withdraw the services if

 The legal aid is obtained through misrepresentation or fraud

 Any material change occurs in the circumstances of aided person

 There is misconduct, misbehavior or negligence of the part of aided person

 The aided person does not cooperate with allotted advocate

 The aided person appoints another legal practitioner

 The aided person dies except in civil cases

 The proceeding amount to misusing the process of law or of legal service.

10. Cases in which legal aid is not available –

 Cases in respect of defamation, malicious prosecution, contempt of court, perjury,

etc.

 proceeding relating to election

 cases where fine imposed is not more than 50

 Economic offences and offences against social laws.

 Cases where the person seeking legal aid is not directly concern with the
56
 proceeding and whose interest will not be affected if not represented properly.

This act was finally enforced on 19 November 1995 after certain amendments were
introduced there in by amendment act 1994. there are three main object of this legal service
act such as creating legal awareness, provide free legal aid to needy and poor people and to
establish permanent lok adalat for speedy disposal of judicial matters. This act has made to
great efforts in implementation of these aims through different schemes and programmers.

This act also provides for nationwide network which has created under the Act for
providing legal aid and assistance it also provides for establishment and powers and
functions of different authorities at different levels for effective implementation of
provisions of this Act, these authorities are as follows;

1. National Legal Services Authority: (NALSA)64

The Central Authority shall consist of –

 The Chief Justice of India who shall be the Patron-in-Chief

 A serving or retired Judge of the Supreme Court to be nominated by the President,

in consultation with the Chief Justice of India, who shall be the Executive Chairman; and

 Such number of other members, possessing such experience and qualifications, as

may be prescribed by the Central Government, to be nominated by that government in
consultation with the Chief Justice of India.

The Central Government shall in consultation with the Chief Justice of India, appoint a
person to be the Member-Secretary of the Central Authority, possessing such experience
and qualifications as may be prescribed by that Government, to exercise such powers and
perform duties under the Executive Chairman of the Central Authority as may be prescribed
by that Government or as may be assigned to him by the Executive Chairman of that
Authority.

64
Section 3 of Legal Services Authorities Act 1987
57
National Legal Services Authority is the apex body constituted to lay down policies and
principles for making legal services available under the provisions of the Act and to frame
most effective and economical schemes for legal services. It also disburses funds and grants
to State Legal Services Authorities and NGOs for implementing legal aid schemes and
programmes.

After the establishment of NALSA in 1998 different schemes and programmes were
introduced for effective implementation of the objectives of this Act. The schemes and
measures implemented by the Central Authority:

 Established Permanent and Continuous Lok Adalats in all the Districts in the
country for disposal of pending matters as well as disputes at pre-litigation stage;

 Established separate Permanent & Continuous Lok Adalats for Govt. Departments,
Statutory Authorities and Public Sector Undertakings for disposal of pending cases as well
as disputes at pre-litigation stage;

 Accreditation of NGOs were done for spreading Legal Literacy and Legal
Awareness campaign;

 Appointed "Legal Aid Counsel" in all the Courts of Magistrates in the country;

 Publicity to Legal Aid Schemes and programmes to make people aware about legal
aid facilities;

 Emphasis on competent and quality legal services to the aided persons;

 Legal aid facilities in jails;

 Setting up of Counseling and Conciliation Centers in all the Districts in the

country;

 Sensitization of Judicial Officers in regard to Legal Services Schemes and

programmes;

 Publication of "Nyaya Deep", the official newsletter of NALSA

 Enhancement of Income Ceiling to Rs.50,000/- p.a. for legal aid before Supreme
Court of India and to Rs.25,000/- p.a. for legal aid upto High Courts; and

 Steps for framing rules for refund of court fees and execution of Awards passed by
Lok Adalats.

58
 NALSA is laying great deal of emphasis on legal literacy and legal awareness campaign.
Almost all the State Legal Services Authorities are identifying suitable and trustworthy
NGOs through whom legal literacy campaign may be taken to tribal, backward and far-
flung areas in the country. The effort is to publicize legal aid schemes so that the target
group, for whom Legal Services Authorities Act has provided for free legal aid, may come
to know about the same and approach the concerned legal services functionaries.

NALSA has also called upon State Legal Services Authorities to set up legal aid cells in
jails so that the prisoners lodged therein are provided prompt and efficient legal aid to
which they are entitled by virtue of section 12 of Legal Services Authorities Act, 1987.

2. Supreme Court Legal Services Committee65:

The Central Authority shall constitute a Committee to be called the Supreme Court Legal
Services Committee for the purpose of exercising such powers and performing such
functions as may be determined by regulations made by the Central Authority.

The Committee shall consist of –

 A sitting judge of the Supreme Court who shall be the Chairman; and

 Such number of other members possessing such experience and qualifications as

may be prescribed by the Central Government to be nominated by the Chief Justice of
India.

The Chief Justice of India shall appoint a person to be the Secretary to the Committee,
possessing such experience and qualifications as may be prescribed by the Central
Government.

3. State Legal Services Authority66:

A State Authority shall consist of

 The Chief Justice of the High Court who shall be the Patron-in-Chief;

 A serving or retired Judge of the High Court, to be nominated by the Governor, in

consultation with the Chief Justice of the High Court, who shall be the Executive

65
Section 3A of Legal Services Authorities Act 1987
66
Section 6 of Legal Services Authorities Act 1987
59
 Chairman; and

 Such number of other Members, possessing such experience and qualifications, as

may be prescribed by the State Government, to be nominated by that Government in
consultation with the Chief Justice of the High Court.

The State Government shall, in consultation with the Chief Justice of the High Court,
appoint a person belonging to the State Higher Judicial Service not lower in rank than that
of a District Judge, as the Member-Secretary of the State Authority, to exercise such powers
and perform such duties under the Executive Chairman of the State Authority as may be
prescribed by that Government or as may be assigned to him by the Executive Chairman of
that Authority.

In every State a State Legal Services Authority is constituted to give effect to the policies
and directions of the Central Authority (NALSA) and to give legal services to the people
and conduct Lok Adalats in the State. State Legal Services Authority is headed by the Chief
Justice of the State High Court who is its Patron- in-Chief. A serving or retired Judge of the
High Court is nominated as its Executive Chairman.

It shall be the duty of the State Authority to given effect to the policy and directions of the
Central Authority.

The State Authority shall perform all or any of the following functions, namely:-

 Give legal service to persons who satisfy the criteria laid down under this Act.

 Conduct Lok Adalats, including Lok Adalats for High Court cases;

 Undertake preventive and strategic legal aid programmes; and

 Perform such other functions as the State Authority may, in consultation with the
Central Authority, fix by regulations.

4. High Court Legal Services Committee67:

The State Authority shall constitute a Committee to be called the High Court Legal
Services Committee for every High Court, for the purpose of exercising such powers and

67
Section 8A of Legal Services Authorities Act 1987
60
 performing such functions as may be determined by regulations made by the State
Authority.

The Committee shall consist of –

 A sitting Judge of the High Court who shall be the Chairman; and

 Such number of other Members possessing such experience and qualifications as

may be determined by regulations made by the State Authority, to be nominated by the
Chief Justice of the High Court.

5. District Legal Services Authority68:

A District Authority shall consist of

 The District Judge who shall be its Chairman; and

 Such number of other Members, possessing such experience and qualifications as

may be prescribed by the State Government, to be nominated by that Government in
consultation with the Chief Justice of the High Court.

The District Authority may perform all or any of the following functions, namely

 co-ordinate the activities of the Taluk Legal Services Committee and other legal
services in the District;

 organise Lok Adalats within the Districts; and

 Perform such other functions as the State Authority may fix by regulations. District
Legal Services Authority is constituted in every District to implement

Legal Aid Programmes and Schemes in the District. The District Judge of the District is its
ex-officio Chairman.

6. Taluk Legal Services Committee69:

The Committee shall consist of

68
Section 9 of Legal Services Authorities Act 1987
69
Section 11A of Legal Services Authorities Act 1987
61
 The senior Civil Judge operating within the jurisdiction of the Committee who
shall be the ex-officio Chairman; and

 Such number of other Members, possessing such experience and qualifications, as

may be prescribed by the State Government, to be nominated by that Government in
consultation with the Chief Justice of the High Court.

Taluka Legal Services Committees are also constituted for each of the Taluk or Mandal or
for group of Taluka or Mandals to coordinate the activities of legal services in the Taluka
and to organize Lok Adalats. Every Taluka Legal Services Committee is headed by a senior
Civil Judge operating within the jurisdiction of the Committee who is its ex-officio
Chairman.

The Taluk Legal Services Committee may perform all or any of the following functions,
namely

 Co-ordinate the activities of legal services in the taluka;

 Organize Lok Adalats within the taluk; and

 Perform such other functions as the District Authority may assign to it.

The First Annual Meet of the State Legal Services Authorities was held on 12th of
September, 1998 at Vigyan Bhawan, New Delhi which was presided over by His Lordship
Hon. Dr. Justice A.S. Anand, the then Executive Chairman, NALSA. The Second Annual
Meet of the State Legal Services Authorities was held at Jubilee Hall, Hyderabad on 9th of
October, 1999. This Meet was inaugurated by His Lordship Hon. Dr. Justice A.S. Anand,
the Chief Justice of India and Patron-in-Chief, NALSA. In this meet NALSA called upon
State Legal Services Authorities to set up legal aid cells in jails so that the prisoners lodged
therein are provided prompt and efficient legal aid to which they are entitled by virtue of
section 12 of Legal Services Authorities Act, 1987. Hon. Chief Justice of India His
Lordship Hon. Dr. Justice A.S. Anand, had pointed out that a very large number of under
trial prisoners lodged in jails are involved in petty criminal offences. His Lordship
expressed his deep anguish and stated that these poor and under privileged prisoners are
languishing in jails for fairly long period in spite of the fact that they are willing to plead
guilty and the ultimate sentences which are likely to be passed against them will be far less
62
than the period they are incarcerated as under trial prisoners. His Lordship suggested that
the CJMs/CMMs of the areas in which the District Jails are situated should hold their courts
in jails once or twice in a month for disposing of the cases of such under trial prisoners. In
many States, the suggestion has already been implemented and the prisoners involved in
petty and minor offences are getting substantial relief.

Presently following innovative steps have been introduced in the functioning of NALSA:-

 A National Plan of Action to be executed by all State Legal Services Authorities

and Calendar for activities was put in place.

 NALSA Regulations on Lok Adalat were published in the Gazette.

 NALSA Regulations on Free and Competent Legal Services were published in the
Gazette of India.

 Legal Services to Trans-Gender people was taken up as a new project of NALSA

 Training of Para-Legal Volunteers and engaging them in the front offices of Legal
Services Institutions and in the village level legal aid clinics were started.

 Legal Literacy Programmes in schools and colleges started in an organized manner

with the assistance of the Department of Education in all States.

 School Legal Literacy Clubs set up in all High Schools under the State Legal
Services Authorities in order to create legal awareness, obedience to law and spread the
philosophy of rule of law amongst the younger generation.

 Legal Aid Clinics in all villages to be manned by Para-legal Volunteers and panel
lawyers.

 Retainer lawyers are engaged at Taluk, District, High Court and Supreme Court
level for handling legal aided cases.

As per the statistics provided in I issue of “Nyaya Deep” published in January 2016 to
March 2016, total 26184 legal awareness camps were arranged during period of 1 st January
2016 to 31st march 2016 in which total 3771284 number of persons were benefited. Out of
this statistics in case of Maharashtra 1840 legal literacy and legal awareness camps were
organized and total 169990 persons were benefited.

63
Sr. No State/ Union Territory No. of Prisoners Percentage out of total number of
provided with prisoners of India to whom legal aid
legal provided

aid

1 Delhi 34384 51.03%

2 Tamil Nadu 4819 7.15%

3 Madhya Pradesh 3562 5.29%

4 West Bengal 2964 4.40%

5 Punjab 2865 4.25%

6 Haryana 2732 4.05%

7 Andhra Pradesh 2548 3.78%

8 Uttar Pradesh 2461 3.65%

9 Gujarat 2073 3.08%

10 Chhattisgarh 1943 2.88%

11. Efforts of NALSA for legal aid to under trial prisoners

Total number of prisoners to whom legal aid provided in India during 2013 was 67386. The
top 10 states/UTs on the basis of number of prisoners to whom legal aid provided were:

Delhi having 34384 prisoners which was 51.03% of the total number of prisoners of India
to whom legal aid provided; Tamil Nadu having 4819 prisoners which was 7.15% of the
total number of prisoners of India to whom legal aid provided; Madhya Pradesh having
3562 prisoners which was 5.29% of the total number of prisoners of India to whom legal
aid provided; West Bengal having 2964 prisoners which was 4.40% of the total number of
prisoners of India to whom legal aid provided); Punjab having 2865 prisoners which was
4.25% of the total number of prisoners of India to whom legal aid provided; Haryana
having 2732 prisoners which was 4.05% of the total number of prisoners of India to whom
legal aid provided; Andhra Pradesh having 2548 prisoners which was 3.78% of the total
number of prisoners of India to whom legal aid provided; Uttar Pradesh having 2461
prisoners which was 3.65% of the total number of prisoners of India to whom legal aid
provided; Gujarat having 2073 prisoners which was 3.08% of the total number of prisoners
64
 of India to whom legal aid provided and Chhattisgarh having 1943 prisoners which was
2.88% of the total number of prisoners of India to whom legal aid provided. 70 NALSA has
also called upon State Legal Services Authorities to set up legal aid cells in jails so that the
prisoners lodged therein are provided prompt and efficient legal aid to which they are
entitled by virtue of section 12 of Legal Services Authorities Act, 1987. Hon. Chief Justice
of India His Lordship Hon. Dr. Justice A.S. Anand, while delivering the inaugural address
at the Second Annual meet of the State Legal Services Authorities at Hyderabad, had
pointed out that a very large number of under trial prisoners lodged in jails are involved in
petty criminal offences. His Lordship expressed his deep distress and stated that these poor
and under privileged prisoners are laying in jails for fairly long period in spite of the fact
that they are willing to plead guilty and the ultimate sentences which are likely to be passed
against them will be far less than the period they are confined as under trial prisoners. His
Lordship suggested that the Chief Judicial Magistrates or Chief Metropolitan Magistrates of
the areas in which the District Jails are situated should hold their courts in jails once or
twice in a month for disposing of the cases of such under trial prisoners. In many States, the
suggestion has already been implemented and the prisoners involved in petty and minor
offences are getting substantial relief.

Creating awareness among the Judicial Officers in respect to legal aid schemes and
programmes is also one of the agenda of NALSA. His Lordship Hon. Mr. Justice S.P.
Bharucha, Executive Chairman, NALSA while writing from the Desk of the Executive
Chairman in Jan.,99 Issue of 'Nyaya Deep' had observed that not all judicial officers in the
country are duly sensitized to Legal Services Schemes and programmes and as such are
unable to guide poor litigants in this regard. His Lordship observed that Legal Services
Authorities must ensure that judicial officers are duly sensitized about the work NALSA is
doing and its importance for the poor and illiterate.

In a Conference held by NALSA at New Delhi, a resolution was passed to say that in the
service records of the judicial officers, their interest in legal aid programmes should be
reflected and all the High Courts should take steps for sensitizing the judicial officers in
regard to legal aid programmes and schemes. Once all the judicial officers in the country
get properly sensitized in regard to the relevance and importance of legal aid schemes they
shall themselves start caring for the poor, backward and weaker sections of the society who
are not in a position to engage their own counsel and look after their legal causes.

70
Prison Statistics India 2013, National Crime Records Bureau (NCRB)
65
 12. Role of Court in Implementation of Right to Free Legal Aid

Right to equal access to justice as is provided by constitutional mandate under Article 14

and Article 39A has properly achieved by judicial interpretations done by Indian judiciary.
This right to free legal aid first time recognize by Supreme Court in case of Hussainara
Khatoon v/s State of Bihar71 in this case Supreme Court held that right to free legal service
is an essential ingredient of reasonable fair and just procedure for a person accused of an
offence and it must be held to be involve guarantees of Article 21. Supreme Court held that;

This unfortunate situation cries aloud for introduction of an adequate and comprehensive
legal service programmes, but so far, these cries do not seem to have evoked any response.
We do not think it is possible to reach the benefits of the legal process to the poor to protect
them against injustice and to secure to them their constitutional and statutory rights unless
there is a nation-wide legal service programme to provide free legal services to them. 72

“We would strongly recommend to the Government of India and the State Government that
it is high time that a comprehensive legal service programme is introduced in the country.
That is not only a mandate of equal justice implicit in Article 14 and to right to life and
liberty conferred by Article 21, but also the compulsion of the constitutional directive
embodied in Article 39A.”73

In another case of Khatri v/s State of Bihar74 Supreme Court while referring the judgment
of Hussainara Khatoon case has made the following comments.

“It is unfortunate that though this Court declared the right to legal aid as a fundamental
right of an accused person by a process of judicial construction of Article 21, most of the
States in the country have not taken note of this decision and provided free legal services to
a person accused of an offence. The State is under a constitutional mandate to provide free
legal aid to an accused person who is unable to secure legal services on account of
indigence, and whatever is necessary for this purpose has to be done by the State. The State
71
AIR 1979 SC 1371
72
Hussainara Khatoon v/s State of Bihar AIR 1979 S.C. page 1371 observations in
para 6
73
Hussainara Khatoon v/s State of Bihar AIR 1979 S.C. page 1371 observations in
para 9
74
AIR 1981 S.C. 926
66
 may have its financial constraints and its priorities in expenditure but the law does not
permit any Government to deprive its priorities in expenditure but the law does not permit
any Government to deprive its citizens of constitutional rights on the plea of poverty.”

In case of Sukhdas v/s Union Territory of Arunachal Pradesh 75 Supreme Court observe that
illiterate people does not aware about their legal rights. It is this absence of legal awareness
which is responsible for the deception, exploitation and deprivation of rights and benefits
from which the poor suffer in this land. Because of ignorance and illiteracy they cannot
become self reliant. They cannot even help themselves. The law ceases to be their protector
because they do not know they are entitled to the protection of the law and they can avail of
the legal services programmers for putting to rend to their exploitation and winning their
rights.

In a leading case of M.H. Hoskot v/s State of Maharashtra76 if provides that the defendant
shall have legal assistance assigned to him in any case where the interests of justice shall
require at no cost if the defendant cannot pay. In case of Indira Gandhi v/s Raj Narian77 the
court says that rule of law is the basic structure of Indian constitution. Everyone has right to
be heard that is equality of justice. In case of violation of fundamental rights remedies
available in court of law but in absence of legal aid the trial should be vitiated.

In State of Haryana v/s Dharshana Devi 78 in this case court observe that the poor should
not be prices out of the justice market by insistence on court fee and refusal to apply the
exceptive provisions of civil procedure code. In case of Centre for legal research v/s State
of Kerala79 Supreme Court a laid down guidelines for state to follow in giving support and
cooperation to voluntary organizations and social action groups operating legal aid
programs and legal aid camps Supreme Court while interpreting Article 21 of the
Constitution of India in the light of Article 39-A the Court has tried to harmonize both
provisions and thereby to confer justice to needy person. In different cases the Court has
attempted to widen the scope of this right in many ways.

75
AIR 1986 SC 991
76
AIR 1978, 3 SC 544.
77
AIR 1975 SC 2299
78
1979 SCR (3) 184
79
AIR 1983 SC1322
67
 Umar Gayas Mir v. Union Territory of J&K and anr.80

The normal rule of law is that when a person commits an offence or a number of offences,
he should be prosecuted and punished in accordance with the normal appropriate criminal
law; but if he is sought to be detained under any of the preventive detention laws as may
often be necessary to prevent further commission of such offences, then the provisions
of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads:

When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate
to such person the grounds on which the order has been made and shall afford him the
earliest opportunity of making a representation against the order.

WP (Crl) No.165/2023 This Sub-Article provides, inter alia, that the detaining authority
shall as soon as may communicate the grounds of detention and shall afford him the earliest
opportunity of making a representation against the order. The opportunity of making a
representation is not for nothing. The representation, if any, submitted by the detenu is
meant for consideration by the Appropriate Authority without any unreasonable delay, as it
involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-
consideration or an unreasonably belated consideration of the representation tantamount to
non-compliance of Sub-Article (5) of Article 22 of the Constitution."

Brijesh Kumar Alias Deepu Ojha vs State Of U.P. Thru. Addl. Chief Secy. Home
Deptt. Civil Sectt. Lko

This Court has clarified in numerous judgments that the liberty guaranteed by Part III of
the Constitution would cover within its protective ambit not only due procedure and
fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid
Committee Representing Undertrial Prisoners v. Union of India, it was held
that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to
suffer adverse consequences of his acts unless the same is established before a neutral
arbiter. However, owing to the practicalities of real life where to secure an effective trial
and to ameliorate the risk to society in case a potential criminal is left at large pending trial,
Courts are tasked with deciding whether an individual ought to be released pending trial or
not. Once it is obvious that a timely trial would not be possible and the accused has suffered
incarceration for a significant period of time, Courts would ordinarily be obligated to
enlarge them on bail.

80
WP (Crl) No.165/2023
68
 Gulab Singh v. State of Himachal Pradesh81

Reverting to the facts of the case, the petitioner is in custody since 23.11.2020 and the facts
suggest that the trial is not likely to be concluded in near future. There is nothing on record
to suggest that the delay in trial is attributable to the petitioner.

18. Keeping in view the facts of the case and also the above noted precedents, the bail
petition is allowed and petitioner is ordered to be released on bail in case FIR No.
158/2020, dated 23.11.2020, registered under Section 20 of ND &PS Act, at Police Station
Padhar, District Mandi, H.P., on his furnishing personal bond in the sum of Rs.1,00,000/-
with one surety in the like amount to the satisfaction of learned trial court.

Amol Shivram Jagade vs The State Of Maharashtra82

Though Mr. Deshmukh contended that the case was one of broad day light murder of the
elected Municipal Chairman and that the Life of the complainant will be under threat if the
appellant is released on bail, we do not think that the same can be a ground for justifying
the judicial custody of a person endlessly as undertrial prisoner. It is true that the
appellant agreed before the High Court that the trial could be completed in six months. But
it is practically not possible for the trial court to complete the trial on account of the fact
that there are 145 witnesses. It is the statement Diksha Rane 26. BA 1737-23.doc of Mr.
Deshmukh, learned counsel for the de facto complainant that all the 20 accused are playing
hide and seek, even before the commencement of the trial. But the same argument will cut
on both sides. Therefore, it is only a hope that the trial could be completed within six
months. On the apprehension that the complainant may face danger, we can always
incorporate adequate safeguards. Therefore, the appeal is allowed and the appellant is
directed to be released on bail subject to such conditions as may be Imposed by the trial
court. The trial court shall impose as one of the conditions that the appellant shall not enter
the district Pune, except on the dates on which he is expected to appear for trial.

Binod Kumar vs Union Of India Through National Investigating Agency83

The judgment rendered in the case of "Union of India Vs. K. A. Najeeb" (supra) has been
followed in the case of "Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath
81
Cr.MP(M) No.: 1821 of 2023
82
INTERIM APPLICATION NO.3203/2023 in BAIL APPLICATION NO.1737/2023
83
Criminal Appeal (D.B.) No. 201 of 2020
69
 Bhattacharya @ Aseem Kumar Bhattacharya Vs. NIA" reported in (2022) 1 SCC 695,
wherein it has been held as follows:

“We have to balance the nature of crime in reference to which the appellant is facing a trial.
At the same time, the period of incarceration which has been suffered and the likely period
within which the trial can be expected to be completed, as is informed to this Court that the
statement of PW 1/de facto complainant has still not been completed and there are 298
prosecution witnesses in the calendar of witness although the respondent has stated in its
counter- affidavit that it may examine only 100 to 105 witnesses but indeed may take its
own time to conclude the trial. This fact certainly cannot be ignored that the appellant is in
custody since 6-7-2012 and has completed nine-and-half years of incarceration as
an undertrial prisoner”.

Manoranjan Das vs State Of Odisha84

In the case at hand as stated above, the Petitioner is incarcerated inside custody for more
than 2 years without commencement of trial and as such, this Court is inclined to observe
that the embargo contained in Section 37(1)(b) of the NDPS Act can be dispensed with at
this stage in respect of the Petitioner. In view of the discussions made above, it is directed
to release the Petitioner on bail in connection with S.T.F. P.S. Case No.31 of 2021
corresponding to T.R. Case No.126/2021 on such terms and conditions to be fixed by the
learned 1st Addl. Sessions Judge-cum- Special Judge, N.D.P.S. Act, Khordha as he deems
just and proper including the condition that, he shall not be involved in any other offence
while on bail.

Vinod Kumar v. State of Himachal Pradesh85

Incarceration has further deleterious effects - where the accused belongs to the weakest
economic strata: immediate loss of livelihood, and in several cases, scattering of families as
well as loss of family bonds and alienation from society. The courts therefore, have to be
sensitive to these aspects (because in the event of an acquittal, the loss to the accused is
irreparable), and ensure that trials especially in cases, where special laws enact stringent
provisions, are taken up and concluded speedily."

Mohd Muslim @ Hussain Vs. State (NCT of Delhi ),

84
BLAPL No.6934 OF 2023
85
Cr.MP(M) No.: 2325 of 2023 .
70
 Hon'ble Supreme Court, vide its judgment dated 28.03.2023, has held as under:-

"Before parting, it would be important to reflect that laws which impose stringent
conditions for grant of bail, may be necessary in public interest; yet, if trials are not
concluded in time, the injustice wrecked on the individual is immeasurable. Jails are
overcrowded and their living conditions, more often than not, appalling. According to the
Union Home Ministry's response to Parliament, the National Crime Records Bureau had
recorded that as on 31 st December 2021, over 5,54,034 prisoners were lodged in jails
against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts;

Nitin Chauhan vs State (Nct Of Delhi)86

The overall conduct as per the Nominal Roll has been unsatisfactory and 2 punishments
were also awarded in the interregnum when the applicant was incarcerated as an undertrial.

The unexpired portion of the sentence is about 2 years 9 months and 25 days, if fine is
paid. Admittedly, the fine has not yet been deposited.

Keeping in view the fact that appeal has already been admitted and will take some time for
being considered by this Court on merits, coupled with the fact that the applicant/appellant
has already undergone almost 75 % of the sentence, this Court is of the considered opinion
that the sentence of the applicant/appellant can be suspended during the pendency of the
present appeal.

Dattatray @ Shashikant Namdev Shinde Vs. The State Of Maharashtra87

Considering the age of the applicant, his medical condition and the fact that the applicant is
in jail as an undertrial prisoner for six years with no possibility of the trial concluding any
time soon, despite a request made on an earlier occasion for concluding the trial within a
period of six months, I am inclined to enlarge the applicant on bail by imposing conditions.
The investigation is complete.

86
CRL.A. 443/2023
87
2023:BHC-AS:28095
71
 CHAPTER III
FAIR TRIAL

3.1. INTRODUCTION
Parties have a constitutional right to have a fair trial in the court of law, by an
impartial tribunal, uninfluenced by newspaper dictation or popular clamor. What
would happen to this right if the press may use such a language as to influence and
control the judicial process? It is to be borne in mind that the democracy demands
fair play and transparency, if these are curtailed on flimsiest of grounds then the
very concept of democracy is at stake.

The concept of ‘denial of a fair trial’ has been coined by authoritative judicial
pronouncements as a safeguard in a criminal trial. But what does the concept
‘denial of fair trial’ actually mean:

The conclusions of the judicial decisions can be summed as follows:

The obstruction or interference in the administration of justice Vis a Vis a

person facing trial. The prejudicial publication affecting public which in term affect
the accused amount to denial of fair trial. Prejudicial publication affecting the
mind of the judge and suggesting the court as to in what manner the case
should be preceded (Himanshu Raman Singh)88.

The publisher of an offending article cannot take shelter behind the plea that
the trial to which the article relates to isn’t then in progress nor immediately to be
begun but it has to occur at a future time. Our law of contempt however does not
prevent comments before the litigation is started nor after it has ended. In re
P.C.Sen Justice shah84 who spoke for the court succinctly put the law as follows:

“The law relating to contempt of Court is well settled. Any act done or writing
published which is calculated to bring a Court or a Judge into contempt, or to lower
his authority, or to interfere with the due course of justice or the lawful process of

88
Himanshu Raman Singh.Trial By Media: A Legal Dilemma Resolved With Reference To Jessica Lal,
IVth Year Student of NALSAR, Hyderabad
72
 the Court, is a contempt of Court : R. v. Gray, Contempt by speech or writing may
be by scandalising the Court itself, or by abusing parties to actions, or by
prejudicing mankind in favour of or against a party before the cause is heard. It is
incumbent upon Courts of justice to preserve their proceedings from being
misrepresented, for prejudicing the minds of the public against persons concerned
as parties in causes before the cause is finally heard has pernicious consequences.
Speeches or writings misrepresenting the proceedings of the Court or prejudicing
the public for or against a party or involving reflections on parties to a proceeding
amount to contempt. To make a speech tending to influence the result of a pending
trial, whether civil or criminal is a grave contempt. Comments on pending
proceedings, if emanating from the parties or their lawyers, are generally a more
serious contempt than those coming from independent sources. The question in all
cases of comment on pending proceedings is not whether the publication does
interfere, but whether it tends to interfere, with the due course of justice. The
question is not so much of the intention of the condemner as whether it is calculated
to interfere with the administration of justice.”

In Sushil Sharma v. The State of Delhi Administration and Ors89

“Conviction, if any, would be based not on media's report but what facts are placed
on record. Judge dealing .with the case is supposed to be neutral. Now if what
petitioner contends regarding denial of fair trial because of these news items is
accepted it would cause aspiration on the Judge being not neutral. Press report or no
reports, the charge to be framed has to be based on the basis of the material
available on record. The charge cannot be framed on extraneous circumstances or
facts dehors the material available on record. While framing the charge the Court
will form prima facie view on the basis of the material available on record. To my
mind, the apprehension of the petitioner that he would not get fair trial is
perfunctory and without foundation. None of the news items, if read in the proper
prospective as a whole, lead to the conclusion that there is any interference in the
administration of justice or in any way has lowered the authority of the Court. The

89
Sushil Sharma v. State of Delhi and ors, AIR 1996
73
 Trial Court has rightly observed that after the charge sheet has been filed, if the
Press, revealed the contents of the charge sheet it by itself by no stretch of
imagination amounts to interference in the administration of justice.”

Even in highly sensitive cases, the session trial has been conducted by the courts of
Sessions without fear or favour for example to count few cases which are
commonly known as ‘Billa Ranga case’, ‘Baba Nirankar”, “Sudha Gupta” and of
“Shalini Malhotra”. One cannot gag the press.

The Indian courts have emerged as the most powerful courts in the world with
virtually no accountability. But every institution even the courts can go wrong.
Every institution including the judiciary has its share of black sheep and corrupt
judges. The judiciary are peopled by judges who are human, and being human they
are occasionally motivated by considerations other than an objective view of law
and justice. It would be foolhardy to contend that none of them, at least some of
them, at least some times are motivated by considerations of their own personal
ideology, affiliations, predilections, biases and indeed even by nepotistic and
corrupt considerations.

In stifling all criticism by the threatened exercise of the power of contempt, the
issue in a democratic society is ultimately one of the accountability of the judiciary
itself. In order to stifle free speech and comments on the court, even an occasional
exercise of this power is enough to deter most persons form saying anything that
might annoy their Lordships. Perhaps the most important reason for the lack of
reforms in the judiciary is the reluctance of the Press to write about and discuss the
state of affairs within it for fear of contempt.

In Saibal Kumar Gupta and Ors. v. B.K. Sen and others90.

It was held by the Supreme Court that “No doubt it would be mischievous for a
newspaper to systematically conduct an independent investigation into a crime for
which a man has been arrested and to publish the results of that investigation. This
is because trial by newspapers, when a trial by one of the regular tribunals of the
country is going on, must be prevented. The basis for this view is that such action
on the part of a newspaper tends to interfere with the course of justice whether the

90
Saibal Kumar Gupta and Ors. v. B.K. Sen and others AIR 1961
74
investigation tends to prejudice the accused or the prosecution. There is no
comparison between a trial by a newspaper and what has happened in this case.”
3.a The Ins And Outs Of Media Trial- English View

High-profile civil litigation is not just decided in the courts; it also is decided in the
court of public opinion. Courts and legal commentators are increasingly recognizing
that the media, through the way it covers litigation, has a very real impact on the
resolution of individual lawsuits. Common sense dictates that it is within a lawyer's
role, therefore, to work with reporters on their stories to ensure accurate reporting.
Many defence attorneys in high-profile cases, though, flinch at the idea of saying
anything to reporters out of concern that such conversations could be misconstrued
as an attempt to affect the jury pool or persuade a judge or jury. For this reason,
rules and beliefs have developed as to how lawyers may appropriately engage the
media to mitigate its impact on their clients.

3.b Pro-Plaintiff Media Bias

Litigation involving well-known companies or individuals always has grabbed the

attention of the news media, especially when it involves sensational charges. The
magnitude of the coverage and the filter through which the media reports on
litigation can create a “clear plaintiff bias in civil cases.” While small companies
can find themselves under the media spotlight in a particularly novel or “bet the
company” suit, the media tends to focus on allegations against established and
respected corporate defendants. These larger companies tend to have household
names, and allegations against them can make good “copy” - even if the allegations
are seemingly spurious, commonplace or unproven. The same is true for litigation
involving celebrity defendants.

In covering litigation, particularly corporate litigation, the media has an inherent

bias that favours plaintiffs. When charges are made public, the media automatically
reverts to the basic elements of story telling and casts the lawsuit in traditional
protagonist-antagonist terms. The defendant, simply by being on the wrong side of
the “v,” becomes the "villain" to the plaintiff's “victim,” whether or not the actual
charges have any factual basis or legal merit. Reports frequently lead with the

75
plaintiff's injury or allegations and only include the corporate position as a response.
These stories rarely are counterbalanced by positive stories about the defending
company. Because companies would rather not draw attention to any litigation, they
usually do not seek publicity for their victories. Even if they did, reporters often do
not see corporate litigation victories as particularly newsworthy. Goliath is
supposed to beat David; that is not news.

3.c The Nature of Bias in High-Publicity Cases

A larger issue is the complex nature of juror bias and how that bias predisposes a
juror toward one side in a case. It is no secret that we all have biases. The difficulty
comes from understanding how those biases may ultimately affect the viewing of
evidence and the deliberations in a case. Because the ramifications and remedies of
this issue are far-reaching, the courts have elected to take the “I instruct you not to
be biased” approach. As a result, the court can attempt to rehabilitate any juror who
expresses bias by appealing to his or her fear or by appealing to the juror's inherent
sense of fairness (“Don't you think you could set aside those initial impressions and
only consider evidence from the witness stand?”). Rare is the juror who would not
be intimidated by an admonishment from the court or who does not think of
himself or herself as a fair and unbiased person. In fact, most jurors struggle
mightily against their initial impressions.

 Several issues make it more difficult for jurors in high-publicity cases:

 Jurors want to appear fair and unbiased in front of the court and the press.

 Jurors want to sit on sensational trials.

 Jurors have a hard time distinguishing between impressions formed by

pre- trial publicity and impressions formed in court
 Jurors mostly do not understand or acknowledge their own biases.

 Jurors themselves sometimes do not know the strength of their

impressions and opinions.
 When in a high-conflict situation, such as juror deliberations, jurors revert to
their initial impressions, experiences, and opinions.
 The courts make it relatively easy to conceal or not reveal a conscious
76
 or unconscious bias.

These issues were highlighted in Mr. Simpson's Civil Trial91. Despite having
stated numerous times in their questionnaires that they believed him to have been
guilty at various times during the presentation of the criminal trial, more than 30%
of these jurors were not excused for cause because they stated that they were
willing to put their opinions and impressions aside in the civil case.

When an established criminal court is seized of a case and has tó go into the facts
and circumstances pertaining to it, it would, be most inexpedient for a commission
to .go Into the matter at the same time and give its finding, especially it the
evidence before both the forums is practically the same. It a commission were to
arrive at certain finding, the invisible effect of such findings as a brooding
omnipresence in the of the criminal court cannot be denied any one who makes a
realistic approach to the question.”

The author has said that the fact that a civil or criminal trial has has been
undertaken is enough to show that the government has the evidence needed for
initiating such proceeding. In such a case, it would not be proper to subject an
Individual to further inquiries?’

Mr. Mathew feels that, in the light of the experience gained by eminent judges who
have headed inquiry commissions and the opinions of the authorities, the law
relating to the commission of inquiry should be reassessed. It equally and
effectively to- serve the twin purposes of protecting the legitimate rights of
individuals, in the one head and of securing the continued purity and probity of the
community life on the other.

1. Raising issues in the Study

In this study raises many issues relating to media trial and its impact on judiciary
and society. In this regards indentify various issues like nature of bios, impact of
media on society and its connection with social change, different areas of trial and
role of law, various provisions of media trial like constitutional and legal.

91
Law Teacher, The Law Essay Professional, Media Is Regarded As One Of The Pillars of
Democracy, www.lawteacher.net, Free Law Essays › Commercial Law
77
 CHAPTER IV
STATUTORY PROTECTION IN RELATION TO
UNDERTRIAL PRISONERS

4.1. Evolution of Undertrial Prisoners

The 78th Report of the Law Commission of India (1979) defines 'undertrial' as a person
who is in judicial custody or remand during investigation. An undertrial or a pre-trial
detainee denotes an unconvicted prisoner, i.e., one who has been detained in prison during
the period of investigation, inquiry or trial for the offence they are accused to have
committed.
For a long time, provisions governing undertrial prisoners were determined under the 1898
colonial law. The change happened in 1973 when the Indian Parliament enacted the Code
of Criminal Procedure (CrPC) for administration of substantive criminal law in the country.
Section 436 of the Act dealt with the issues concerning undertrials, including the maximum
period for which an undertrial prisoner can be detained in police custody. With the numbers
of undertrial prisoners rising to alarming levels, the United Progressive Alliance
government amended the said legislation by adding Section 436A, which stated that should
an accused be detained for more than half the maximum period of imprisonment associated
with the crime, he/she has the right to be released on the presentation of a personal bond.
The most recent addition to the list of provisions for undertrials is the SC's 2014 directive
in Bhim Singh v. Union of India.
India's undertrials constitute a whopping two-thirds of the country's total inmates. In pure
statistical terms, out of some 3.81 lakh prisoners across the country, 2.78 lakh are
undertrials. Notwithstanding a slew of legislations and court judgments that have been
passed over the years, the number of undertrial 4 prisoners has increased by 9.3 percent
from 254,857 in 2012 to 278,503 in 2013. What is worrisome is that a majority of these
undertrials have spent more time in jail than the actual sentence that would have been
awarded them in case of conviction. The most recent figures show that a mammoth 37.9
percent of undertrials have been detained for up to three months by the end of 2013, and a
record 3,047 undertrials were found to be languishing in various prisons for more than five
years.

78
 When it comes to identity of undertrials (here caste, religion and gender), the
underprivileged communities make up a large number of unconvicted prisoners. For
instance, as against population ratios of 16.2 and 8.6 percent, the share of undertrials
among the Scheduled Castes (SC) and Scheduled Tribe (ST) is 20.30 percent and 11.30
percent, respectively. With regard to religion, Muslims have a disproportionate presence
among the undertrials. The data reveal that against a population share of 9 14 percent, more
than 21 percent (57,936) of undertrials belong to the Muslim community. Overall, while
Muslims, SC and ST populations constitute nearly 39 percent of the total population, they
account for a 10 high 53 percent of total undertrial prisoners in various jails.

4.1.1. State Response to the Plight of Undertrials

On occasion, issues concerning prisoners in general and the plight of undertrials in
particular, have received serious attention from the state. Much of the positive contribution
has come through judicial intervention. Through judgments and strictures to authorities
managing the criminal justice system, the country's higher judiciary has sought to improve
the welfare of India's prisoners, especially the undertrials.
The serious judicial intervention on the issues of undertrials began as early as 1979 when
the plight of undertrial prisoners was written about by the venerable English daily, The
Indian Express. The paper carried a series of reports on the horrendous conditions of
thousands of prisoners spending years in prison without being even brought to trial. As a
direct result, the issue received some serious, albeit judicial, consideration. The report led
to the filing of a writ petition through a lawyer activist in the Supreme Court. The Court
subsequently admitted the petition and it was only in 1979, in the judgment of Hussainara
Khatoon92 that the Supreme Court of India delivered an important verdict: speedy trial was
a fundamental, constitutional right for criminal defendants.
The Supreme Court observed: “An alarmingly large number of men and women, including
children are behind prison bars for years awaiting trial in courts of law. The offences with
which some of them are charged are trivial, which, even if proved, would not warrant
punishment for more than a few months, perhaps for a year or two, and yet these

92
Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98.
79
 unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for
periods ranging from three to ten years without even as much as their trial having
commenced. It is a crying shame on the judicial system which permits incarceration of men
and women for such long periods of time without trial.” At around the same time, the plight
of undertrials was picked up by the executive branch. Taking note of the growing numbers
of undertrials, the Janata Government in 1977 asked the Law Commission (78th) to study
the case in depth and suggest reform measures and policy frameworks. Subsequently, the
93
issue concerning the undertrials was picked up by the Mulla Committee, which was
constituted by the Government of India in 1980 on prison reforms. Taking cognizance of
the issue, the Committee observed that “the most prison inmates belong to the
economically backwards classes which could be 18 attributed to their inability to arrange
for the bail bond”. It said that legal aid workers were needed to help such persons in getting
them released either on bail or on personal recognisance. However, the recommendations
of the Committee were not taken seriously by successive governments.
Some of the most influential interventions to improve the condition of undertrials emerged
in the 2000s. For instance, seeing no substantial progress in the condition of undertrials, the
SC in 2000 directed the Union Government and all state governments to constitute Fast
Track Courts (FTCs) to speed up the resolution of cases involving undertrial prisoners,
especially those that have been pending for over two years. Accordingly, from 1 April
2001, all undertrial cases from the district and subordinate courts were transferred to the
FTCs for speedy disposal. The real momentum came in 2005, when the United Progressive
Alliance government passed an amendment to the Criminal Procedure Code by inserting
Section 436A. The new provision read: “The maximum period for which an undertrial
prisoner can be detained: Where a person has, during the period of investigation, inquiry or
trial under this Code of an offence under any law (not being an offence for which the
punishment of death has been specified as one of the punishments under that law)
undergone detention for a period extending up to one-half of the maximum period of
imprisonment specified for that offence under that law, he shall be released by the 19 court
on his personal bond with or without sureties”.
In the last few years the Executive has taken some positive steps concerning undertrial
prisoners. For instance, the executive branch in 2010 made a forceful intervention on the
issues of high pendency of undertrial cases and the Ministry of Law and Justice launched
“The Mission Mode Programme for Delivery of Justice & Legal Reforms–Undertrial
Programme”. The programme aimed to resolve two thirds of all undertrial cases and ease
congestion in jails by 31 July 2010. The Mission Mode Programme sought to work with
93
The Hindu, "Poor Undertrials in Bailable offences to be released on bond", available at
http://www.thehindu.com!Holnus/002200810261520.htm., last accessed on November 2023
80
 state governments in identifying the undertrial prisoners who were entitled to be released
under the law and link them with Legal Service Authority with a view to ensure their
release.94
It was in 2014 when the most decisive response to the plight of undertrials came. Seeing no
visible progress on its past directives, the Supreme Court Bench on 5 September 2014
issued a series of strictures to various institutions managing the country's criminal justice
system. In a major departure from its earlier directives, the Court directed judicial officers
across states to accelerate the pending trial process and release those prisoners who have
spent “half of the maximum sentence prescribed for the offences under Criminal Code.
Taking note of gross negligence of its earlier ruling on undertrials, the SC termed the issue
of undertrials languishing in jails as 'serious' and directed the Centre to convene a meeting
of home secretaries of all the states to find an immediate solution to the long pending
problem. It reminded the Centre not to remain a "mute spectator" and rather act as a “nodal
agency”.95 Apart from the Union government and the highest court, a number of state
governments and high courts have also occasionally taken various measures to address the
issues of undertrials. For instance, the Patna High Court took suo motu an action and
initiated a PIL for the efficient and effective implementation of Section 436A Code of
Criminal procedure, 1973. The Court directed the Jail Superintendent, the Inspector
General (Prisons) and the Legal Services Authorities to take interest for the implementation
of this section. Similarly, the Bombay High Court in October 2008 took up the issue of
undertrial prisoners in bailable cases who could not furnish bail. The Court decided to
undertake the task of monitoring the situation for a year and directed all Sessions Judges of
the State to call for periodical records from the Magistrates and Jail Superintendents.
Among all Indian states, it is Tamil Nadu that has made some impressive strides in
addressing the situation of undertrials. Until the charge-sheet is filed, arrested prisoners in
Tamil Nadu are categorised as 'remand prisoners' and are free to be released on their own
bond. Moreover, jail comprises four categories of inmates: Remand prisoners who are
arrested in the immediate past and are awaiting release on bail; undertrials, who need to
undergo trial; convicts; and finally, people held under preventive detention laws. Moreover,
a prison adalat concept exists where the district legal service authority aims at bringing
relief to petty offenders and their family members belonging to the economically weaker
sections.

94
Department of Justice, Ministry of Law and Justice, Government of India, available at:
http://doj.gov.in/?Q=node/209, last accessed on November 2023
95
Bhim Singh v. Union of India
81
 4.2. Prisoner’s Rights

Prisoner on going to jail does not become a non-person: We find that the crimes have to be
prevented and criminals punished to maintain the even tenor of life in the community. The
basic object behind Criminal Law is of suppressing criminal enterprise. Every Jail inmate
looks back at the dawn and views with hate, the empty space which is used to fill his world.
At such time such a prison inmate would not become a non-person and such rights, as
human dignity requires and circumstances justify must be granted to him. The problem
must be identified before remedies are thought of.
Prison system- a method of handling criminals: Prison system which is a method of
handling criminals was the result of historic accidents. For segregating these criminals from
the society for protecting it is an acknowledged necessity of every civilized state. There
were generalized institutions for the care of criminals. Seventeenth and eighteenth
Centuries saw the rise of „Prison‟, ‟Jails‟, „house of correction‟, „rasp houses‟, „spin
houses‟, and „maisones de force‟.
Prison system should always aim at reformation: Prison deprives liberty of a person. Even
at the time of doing this, prison system must aim at reformation. Liberty has always been
one of the celebrated possessions of Man. This personal autonomy extends beyond animals
existence. But, that is not to mention that restraint of liberty is not permissible. It becomes
not only permissible, but necessary because of need to protect society. The changing
scenario of crime must be reckoned.
(i)Guiding Principles for an ideal prison: Justice Krishna Iyer rightly observed that
deprivation of personal freedom must be goal oriented and humanely restorative,
apart from being deterrent. Though prison inmate‟s rights may have be lessened in
an environment, a prison inmate is not wholly stripped of protections when he is
imprisoned for crime.
Every prison inmate‟s right of liberty is, of course, bound by the very fact of his
confinement, but his interest in the limited liberty left to him is then more substantial. Of
course, a hearing need not be held before a prisoner is subjected to some minor deprivation.
(ii) The Basis for Prisoners‟ Rights: Prisoners‟ rights derive from two principles:

Firstly, prisoners are also human beings. Hence, all such rights accept those that are taken
away in the legitimate process if incarcerations still remain with the prisoner.

Secondly, because inmates depend on jail authorities for almost all of their day-to- day
needs, and the state possesses control over their life and liberty, the mechanism of rights
springs up to prevent the authorities from abusing their power.

82
 Enumeration of Prisoners‟ Rights: The Following rights include those expressly recognized
under the various Indian laws governing prisoners, Supreme Court and High Court rulings
as well as those recommended by expert committees.
The broad categories of rights are not exhaustive as this field is still developing.96

 Right of being lodged in an appropriate manner based on Proper Classification:

 Special Rights of Young offenders to be segregated from Adult Prisoners. Rights of

female Prisoners:
 Right to Healthy Environment and Timely Medical Services:

 Right to Bail:

 Right to Speedy Trial.

 Right to Free Legal Service.

 Right to have interview with One‟s Lawyer

 Right against being Detained for More than the period of Sentence imposed by the
court:
 Right to protection Against being forced into Sexual activities:

 Right against unreasonable use of Handcuffs and Fetters.

 Right against Torture, Cruel and Degrading Punishment:

 Right not to be punished with solitary Confinement for a prison offence

 Right against Arbitrary Prison Punishment:

 Right to express their Grievances and to Efficacious Remedy.

 Right of invoking the Writ Of Habeas Corpus Against Prison Authorities

for Excesses:
 Right to be compensated for violation of Human Rights:

 Right to visit and access by Family Members of Prisoners: Right to Write Letters to
family and friends and to receive Letters, magazines, etc.:
 Right to programs of Reformation

96
Dr. Diganta Biswas, Hillol Saha Poddar, “Impacts of Imprisonment of Women on the rights of their
children: An Indian Perspective”, International Journal of Advanced Research, Vol 3, Issue 10, (2015)
1297-1303, ISSN 2320-5407.
83
  Rights in the context of employment of Prisoners and prison Wages.

 Right to information about Prison Rules:

4.2.1. Accused

Who is Accused:-As per the Black‟s Law dictionary, the term Accused is defined as
defendant in criminal cases.97
According Law Lexicon Dictionary, the Accused has been defined as any person who has
been alleged of committing an offence or charged with an offence.
ARREST

Though the word Arrest has not been defined neither in the substantive acts nor in
procedural acts but the Criminal Procedure Code or any other acts is dealing with the
Criminal law but what it constitutes found in Section 46 lays down how the arrest has to be
effected.

Black’s Law Dictionary has defined Arrest means to deprive any person of his liberty by
due process of law and other purpose of arrest is to keep a person in custody or for
detaining the said person to answer a criminal charge.
Bouvier’s Law Dictionary has defined Arrest as deprivation of personal liberty by legal
authority.

There are two categories of arrest – Arrest which is done under the warrant that is
issued by the Court and arrest without warrant.

Rights of an arrested person:

i) Fair trial

ii) Right to be informed about the provisions pertaining to the bail

iii) Right to be produced before the nearest magistrate within 24 hours of arrest

iv) Right of legal aid free of cost

v) Right of consulting legal practitioner

vi) Right to be examined by Medical representative or practitioner

vii) Right to inform the nearest friend or relative about arrest.

97
Nandini G Devarmani, R. N. Mangoli, “Prison Visiting System in India”, Global Journal of
Research in Social Sciences, Vol 1, No.1, (2015).
84
 Arrest Memo: the arrest Memo is prepared by the Police mentioning the name of person
getting arrested, person who is arresting, offence under which person is arrested, place of
arrest and signature of witnesses.

3.3. Difference Between Prisoners And Accused

Prisoner is defined as a person who has been kept in Jail custody who has committed any
act that is prohibited by law. Any person who is been deprived of their liberty by due
process of law.
Accused has been defined as any person who has been alleged of committing an offence or
charged with an offence.
Prisoner is lodged in the prison, accused may or may not be lodged in the prison. The
Prisoners are divided into three categories:-Criminal Prisoner, Convicted Criminal Prisoner
and Civil Prisoner.98

4.4. Laws Relating To Prisoners And Rules Relating To The Same.

i) The Prisons Act, 1894- The Prison Act was passed as per the suggestion of 1888
Jail Commission. The focus was more on the prison Management than the treatment
to prisoners. It was enacted to provide rules for regulating the prisons in India. The
Prison Act is divided into twelve chapters, in Chapter I the title, the territory to
which this act is applicable, in the same chapter Section 3 deals with various
important definitions like prison, Convicted Criminal Prisoner, Criminal Prisoner,
Civil Prisoner, Inspector General etc., Chapter II deals with Officers belonging to
the Prisons and maintenance which talks about accommodating the prisoners and
also talks of accommodation of prisoners on temporary basis. Chapter III talks of
the duties of the officers in a Prison in which various designations of Officers of
Prison such as Superintendent, Jailor, Medical Officer and all other officers as the
Government of a particular State deems it necessary. 99 It is also discussed in this
chapter regarding the records of the Prisoners maintained by the Superintendent,
reporting the case of death of a prisoner, Jailors and his deputy and assistants Jailors
duties and also talks about Subordinate officers. Chapter IV discusses about the
98
Mohammed Mansoor, Dr. Syed Khalid Perwez, Dr. T.N.V.R Swamy, Prof. Ramaseshan. H, “A
Critical review on role of Prison Environment on stress and psychiatric problems among prisoners”,
Mediterranean Journal of Social Sciences Vol. 6, (2015)
99
Hanumanthappa DG; “Constitutional and Legal provisions for women’s in India”; International
Journal of Multidisciplinary Research and Development, Vol 2, Issue 8, 474-476 Aug 2015.
85
 prisoners are admitted, removed and discharged in prisons. At the time of admission
as search has to be conducted of any prisoner in a prison and weapons and
prohibited articles should be deposited with the Jailor before the Prisoner is entering
the Jail. There should be a mandatory medical examination of the Prisoner before
entering the Jail and a record should be maintained of the Prisoner‟s health and
well-being so that it can be decided then and there as to what kind of work the said
prisoner can be allotted once he or she enters the jail. In case of women prisoners
matrons should carry out the medical examination under the orders which may be
general or special of the medical Officer. The article if any found on the person of the
prisoner shall be kept in the custody of the Jailor, except in cases where there is a
competent order of the concerned Court. The prisoner is taken out from one jail and
sent to another jail only after a medical officer finds no ailments in the said prisoner
who is going to be shifted from one prison to another. Even discharge cannot be
effected until the medical officers finds it appropriate to do so. Chapter discusses
about how discipline is effected in prisons. In this chapter it is discussed in detail as
to how prisoners are separated such as males and females are kept in separate cells
or buildings, convicted and un-convicted prisoners are kept separately, young
offenders and old offenders are kept separately and civil prisoners are not kept
alongwith the criminal prisoners. This chapter also talks about solitary confinement
and also the prisoners under sentence of death are kept aloof from other prisoners.
Chapter VI discusses about bedding, clothing and food of un-convicted criminal
prisoners and civil prisoners. Chapter Seven discusses about employment of civil
prison inmates, criminal prison inmates and criminal prisoners sentenced to simple
imprisonment. Only after thorough medical examination the employment of
prisoner is ascertained and the said medical examination is done on a regular basis
as over a period of time if a prisoner is unfit to do a particular type of work then
some other type of work shall be given to the said prisoner. 100 Chapter VIII deals
with Health of Prisoners. Sick prisoners are given medical assistance by providing
them with medical aid with the help of medical subordinate and the records of the
prisoners have to be kept. All prisons should have either dispensary/ ward or a place
for taking proper care of prisoners who are not in good health, Chapter IX deals
with visits of prisoners and talks about the rules that have to be followed by visitors
100
Priyanka, “Role of the Judiciary in Enforcing Prisoner’s rights in India”, Research paedia, Vol. 2,
(2015)
86
 and legal advisors of under- trial prisoners and in case of suspicion on any prisoner
demand search of such a prisoner. Chapter X deals with offences in relation to
prisons. If a prohibited article is found in a prison that punishment for such an
offence and all the acts that are prohibited under Section Forty two of the said Act.
Chapter XI deals with offences committed in the prisons and punishments for the
same. Chapter XII talks about some miscellaneous provisions.
ii) The Prisoners Act, 1900- Prior to the enactment of the Prisoners Act, 1900 the law
pertaining to the prisoners confined by a Court Order which was found in various
statues in different parts. By way of enactment of this Act a consolidated law is
made pertaining to prisoners confined by a Court Order.

iii) An act called as the Transfer of Prisoners Act, Nineteen fifty – Such act was
enacted for facilitating the transportation or removal of a person confined in a
prison from one state to another. Terms like Government, State Government, Union
Government and Prison are defined in this Act. The removal or transportation of a
prison confined for a death sentence, sentence of imprisonment, fine and security
for keeping peace with consent of the government of a State from one prison to
another prison.
iv) Probation of Offenders Act, 1959- The act was enacted for the release of the
offender on probationary period or for matters connected with it. The act defines the
term probation officer. In this act the powers of the court are discussed in relation to
probation releasing some offenders after admonition, releasing the offender on good
conduct, releasing offenders paying compensation, report of probationary officers to
be confidential, the procedure which needs to be followed if offender fails observe
conditions laid down by bond, defines probation officers and their duties.101
v) The Act for Attendance of Prisoners Court Act, Nineteen fifty five- This Act was
enacted for prisoner‟s attendance in Court for answering any sort of criminal charge
levelled against a prisoners or obtaining evidence. Confinement in a jail, prison and State
government is defined in Section 3 of this Act. In this Act provisions are made whereby
Civil and Criminal Courts are given powers directing any prisoner to give evidence in
Court, State Governments has exempted certain people from Section 3‟s operation, for
examination of prisoners commissions were formed, some provisions of Civil Procedure
Code and Criminal Procedure code is applicable and lastly the State government has been

101
V. Ramaraj, Analyzing Three Issues in Human Rights Law, International Journal of
Multidisciplinary Research Review, Vol.1, Issue -10, Pg-133, IJMDRR (2015).
87
 empowered for making the rules for carrying out the purpose of this Act.
vi) The Civil Jails Act, 1874- This Act was enacted for administering jails and
enforcement therein of the Jails in Bombay but doesn‟t extend to Greater Bombay.
In this Act provisions are made for the establishment of Civil Jail for each district
and the nazir to be the keeper of the Civil Jail , medical officer to look after , judge
or assistant judge should be visiting them, visiting hours between 9 am to 3 pm.
Also the provisions are made as to the manner in which prisoners make their
subsistence in jails, recourse to be followed in case of death of a prisoner, State
government funding for disposing the dead body of prisoner and also to look after
sick prisoners.102
4.5. Constitution Provisions
4.5.1. Human Rights Under Indian Constitution

The Constitution of India in Part III and IV are dealing with Fundamental Rights and
Directive principles covers almost the entire arena of the Declaration of Human Rights
Universal. Thus Human rights Jurisprudence in India has a Constitutional insight so
that this “Magna Carta” may well toll the knell of human bondage “beyond civilized
limits”. The human rights which have been made available in Part Three of the Indian
Constitution have been made non-derogatable under Article 13 (2) and their Article 13 (2)
reads as follows:
“The State shall not be making any law which takes away or lessens the rights conferred by
this part and any law which is made in contravention of this clause shall to the extent of the
contravention be void”.
Enforcement has been guaranteed under Article Thirty two and Article Two twenty six of
the Indian Constitution.103

Article 32 – Right of Constitutional Remedy:-

This article gives a right of moving the Apex Court by way of proper proceeding for
enforcing the rights that are conferred by Part Three of Indian Constitution.
This article also empowers the Apex Court granting power to issue directions or orders or
writs in the nature of the writ of habeas corpus, the writ of prohibition, the writ of
mandamus, the writ of quo warranto and certiorari whichever rights that may be
appropriate for the enforcing of any of the rights conferred by Part Three of the Indian
102
Fhameda Qudder, “Crime victims right to compensation in Bangladesh. A comparative Approach”,
European Scientific Journal (2015) edition Volume. 11 No.31.
103
Sadual, “Protection of Human Rights of Prisoners in India: Role of Judiciary”, International Journal
of Scientific Research, Volume: 4 Issue: 5 (2015),
88
Constitution.
The rights available in this article shall not be appended except as otherwise provided for
by this Constitution of India.

Article Two Twenty Six – Powers of High Courts to issue certain writs-
Notwithstanding anything in Article Three two, all high Courts in India shall have the
powers throughout the territorial area in relation to which it is exercises its jurisdiction to
issue to any person or authority, including in appropriate cases, any government, within
those territorial directions, writs or orders which are in the nature of mandamus, habeas
corpus, prohibition, quo warranto and certiorari.

Fundamental Rights – the Constitution of India in Part three gives a constitutional

authorization for various human rights which are called fundamental rights in the Indian
Constitution. The Indian Constitution contains a broad range of fundamental rights which
are right to life and personal liberty, right to fair trial, right to equality, right to religion, and
the most crucial is the right of seeking and obtaining judicial remedies. The Apex Court and
the High Courts in India are entrusted with the duty of protecting those rights. The High
Courts and the Apex Court not only protect these rights but also in case of contravention of
these fundamental rights they can declare legislation and any executive action invalid.
Every individual who is or not a citizen has a right of approaching the Apex court which
is the highest court in the Country if the individual can satisfy the Court that their
fundamental right was curtailed or at peril.

Fundamental Rights and Directive Principles

The Fundamental rights and Directive Principles of the State Policy go hand in hand and
they supplement each other. There has to be balance between Part Three i.e Fundamental
rights and Part Four i.e Directive Principle only when these two things are harmonized the
integrity of the person can be achieved. The Directive Principles and Fundamental rights
are complementing to each other. From the varied rulings of the Supreme Court it is well
established that Fundamental rights and Directive Principles are appended to each other.
After a thoughtful consideration of the legal and historical aspects of the Part Three and
Part Four there is a unanimous judicial opinion that though the Part IV is not enforceable
still the Courts should continue in attempting at harmonizing the Part Three and Part Four
and any clash between the two concepts should be avoided.

The distinction between Fundamental rights and Directive Principles is such that wherein
Fundamental rights restricts the State from invading the Fundamental rights available in
Part III of the Indian Constitution. The Directive Principles of State Policy which form Part

89
 of the Part Four of the Indian Constitution urges the State to do certain things. It is pertinent
to note that though the Part IV which comprises of directive principles is not enforceable in
law but these directive principles cannot be enforced yet if any breach of these duties are
committed by the State the Court has the power to prevent the State from breaching the
same.104
Fundamental rights available in Part Three of the Indian Constitution. Fundamental
rights are dealt with in Part Three of the Indian Constitution. There are a handful of
fundamental rights which are available to “any person”105
Article 14 -Equality before the Law and equal protection of laws- The said
fundamental right is guaranteed to any of the person within the territory of India.
Article Twenty one- Protection of life and also of Personal liberty- Protection of life and
personal liberty is available except according to procedure which is established by law.
Basically there are important components of Article 21 which are i) firstly available to a
person, ii) secondly there should not be depravation of Personal liberty, iii) thirdly there
should not be depravation of life and iv) lastly this above- mentioned should be as per the
procedure established by law.

Article Twenty Two- Double Jeopardy- the said Fundamental right is divided into three
parts which i) Firstly, there cannot be any sort of conviction of a person except for violating
the law which is in force at that time because of which the laws have prospective effect and
not retrospective effect, ii) secondly it guarantees against double Jeopardy as not any
person shall be punished and prosecuted for the ditto crime more than one time and iii)
lastly not any person who has committed any sort of crime can be coerced to be a witness
against its own self.
Article Twenty five- Freedom of conscience and free profession, practice and propagation
of religion is a fundamental right guaranteed to all persons. Taking the factors such as
public order, health and morality into consideration all the persons are on equal footing
entitled to freedom to freely profess, practice and propagate religion.
Article 27- guarantees to all persons the fundamental right that they should not be
compelled to pay any taxes for maintaining and promoting any specific religious sect.
Article Twenty Eight -guarantees to all persons the Fundamental right discretion whether to
attend or not to attend religious instruction or religious worship in some institutions relating

104
Gurpuneet Singh Randhawa, Dr. D. J Singh, Analysis of Challenges faced by Indian Prison
System”, IOSR Journal of Humanities and Social Science (IOSR-JHSS) Volume 20, Issue 11, Ver. III,
PP 39-46, (2015).
105
Seyyed Abbas Jazaeri, “The Law Guarantees Judicial security of the Accused in the Court”;
International Journal of Academic Research, pp: 319-337, (2015).
90
 to education.106
The articles that are mentioned above are Fundamental rights that are available to any
person whether the said person is a citizen of India or an alien or whether the said
person is a artificial or an natural person. Whereas there are some specific
fundamental rights as guaranteed in the Constitution of India is guaranteed only to the
citizens and specific inability is imposed only with respect to Indian citizens only. Article
15 of the Constitution of India –restricts the State from discrimination of any citizen
merely on the grounds of caste, race & religion etc. There is a special provision in
this article for making special provision for women and children by the State.
Article 16 of the Constitution of India-subject to reservations in favour of backward classes
there has to be equality of opportunity is guaranteed to all citizens irrespective of any caste,
race, religion, etc.

Article 18 of the Constitution of India-there is an absolute restriction on all the citizens of

India from accepting any title from any other State, in Article 18(2) a person who is not an
Indian citizen shall not accept such title without presidents consent.107

Article Nineteen of the Indian Constitution- every Indian citizen shall have the right of free
speech and expression, peaceably assembling without arms and ammunition, forming
unions or associations, freedom to move and also to settle within Indian Territory and also
practice and purport any kind of trade, occupation or profession of their choice.
All the rights available in this Article are subject to reasonable restrictions and limitations.

Article 29 (2) protects the rights of citizens from denial from admission in any educational
institutes which are maintained with State funds only on the grounds of caste, religion,
language or any of these.
So Fundamental rights in a nutshell are guaranteed to either to all the Citizens of India or
any person. However the same are guaranteed with reasonable restrictions and limitations.
Regardless of the fact that whether a particular person is a citizen of India or a not a citizen
or if the person is a juridical person or a natural person all have the right to approach the
Apex Court by way of proper legal proceedings for enforcing their fundamental rights as
guaranteed under Part III of the Constitution by way of Article Thirty Two of the Indian
Constitution.108
106
Major, Dr. M Viji,“Human rights women prisoners and prison reforms in India-A study”, Aarhat
Multidisciplinary International Education Research Journal (AMIER) , Vol No. IV issues II, Page No.
82, (2015).
107
Shanthi, “CAPITAL PUNISHMENT–AN ANALYSIS OF CONTROVERSIES, BALANCE” -
Multidisciplinary Law Journal Vol. 1 Issue 1 (Dec. 2015)
108
Parmar Amitkumar Ishwarbhai, “Rights of Arrested Person Under the Indian Constitution”, Global
91
 The operation of Articles Fourteen, Nineteen and Twenty one of the Constitution maybe
curtailed for a prisoner but not puffed altogether. For example, Prisoner that are addressing
the Public may be put down but talking to fellow prisoners cannot; vows of silence or
taboos on writing, reading poetry or drawing caricatures are violative of Article Nineteen of
the Indian Constitution. Likewise, mobility may be curtailed by the needs of imprisonment
but binding hand and foot, with hoops of steel every man and woman sentenced for a term
is violative of Part III. Even a person that had been sentencing to death has human rights
which are non-negotiable and even a dangerous prisoner, standing trial has basic liberties
which cannot be bartered away.
Accountability and Limitations to the Fundamental rights as guaranteed in the
Constitution – No rights can be absolute as any human being cannot survive without help
and co-operation of other human beings and few fundamental rights are available to all
Indian citizens and in some fundamental rights are available to any person but only with
subject to reasonable restrictions which can be balanced only with the resources
available.109

Journal of Advanced Research, Vol-2, Issue-9 PP. 1425-1435, (2015).

109
Ms. Sehga Nikita & Mr. Kumar Tushar, “Reflections upon the heirloom of Citizenship of India”,
Law Mantra, think beyond others International Monthly Journal Volume 2 Issue 7 (2015)
92
 CHAPTER V
CONCLUSION AND SUGGESTIONS

5.1. Conclusion

Media is recognised as the fourth pillar of Democracy after Legislature, Executive and
Judiciary. It plays an important role in creating awareness among people and is capable
of changing the viewpoint of society. Therefore, in order to ensure democracy, there is a
need for free and independent media. Part III of the Constitution of India does not
specifically talk about Freedom of Press. But in a number of cases Supreme Court held
that the freedom of speech and expression enshrined in Article 19(1) of the Constitution
includes freedom of the press.

The role of media is to keep the public informed. However, these days the role of media is
often criticised especially in reporting criminal matters. The media sometimes go beyond
its domain and starts interfering with the functions of the court. So should the media stop
reporting criminal cases that directly or indirectly results in interference with the powers of
court?

Media has started functioning as a public court. It now conducts a parallel trial with the
court. It fails to recognise the gap between an accused who is presumed innocent until
proven guilty and a convict whose guilt is proved beyond reasonable doubt.
Trial by Media generally refers to a practice where the media starts doing its own
investigation and forms a public opinion against the accused even before a trial
commences. In this way, it prejudices the trial thereby infringing the right of the accused
to a fair trial. Thus, the accused that must be considered as innocent until proven guilty is
now presumed as guilty thereby violating his rights.

In the first chapter introduction is very important in the sense as it gave introductory
information about the whole work. It described about the historical development of media
and media trial. Development of media nationally and internationally and perception of
media were described in chapter first.

It also considered the objectives of the study, research question of the study, overview of
the select literature, methods and technique of the study and national and international
status of the study and significant of the study. Thus first chapter illustrated introductory
information and brief outline of the study meaning and history of media.

93
The impact and growth of point electronic media for about last two decades, particularly in
past ten years in our country have changed the entire perception of reporting and
responsibilities associated with it. While on the one hand the media has served to create a
well informed citizenry, there are incidents galore where the public itself has protested
against the obsessive intrusion of the media and trial by media particularly in matters
involving the public personalities Unfortunately till today electronic media remains
practically unregulated and Press Council’s request to bring media to be regulated by it
suitably amending the Act, the view since supported by eminent personal like President of
India and Apex Court of the country, has not been acceded to by the Government. As a
result, media being the most effect and potent organ of mass communication and remaining
practically unregulated more often than not violates the basics of media ethics to the shock
and dish of all concerned, it is high time that suitable and effective mechanism to regulate
media should be adopted without any loss of time through depth study of relevant factors
of functioning of media and electronic media in particular by constituting an expert body
Commission.

The subject of ‘Trial by Media’ is discussed by civil rights activists, constitutional

lawyers, judges and academics almost every day in recent times. With the coming into
being of the television and cable- channels, the amount of publicity which any crime or
suspect or accused gets in the media has reached alarming proportions. Innocents may be
condemned for no reason or those who are guilty may not get a fair trial or may get a
higher sentence after trial than they deserved. There appears to be very little restraint in
the media in so far as the administration of criminal justice is concerned.

We are aware that in a democratic country like ours, freedom of expression is an important
right but such aright is not absolute in as much as the Constitution itself, while it grants the
freedom under Article 19(1) (a), permitted the legislature to impose reasonable restriction
on the right, in the interests of various matters, one of which is the fair administration of
justice as protected by the Contempt of Courts Act, 1971,.

If media exercises an unrestricted or rather unregulated freedom in publishing information

about a criminal case and prejudices the mind of the public and those who are to
adjudicate on the guilt of the accused and if it projects, a suspect or an accused as if he has
already been adjudged guilty well before the trial in court, there can be serious prejudice to
the accused.

In fact, even if ultimately the person is acquitted after the due process in courts, such an
acquittal may not help the accused to rebuild his lost image in society.

In the Second Chapter Social Change Though Trial by Media is concerned. This chapter
94
focuses on the social change which delivered by the media trial in society. In this regard
the research scientifically prove the impact of media trial on society by imported survey
with the help of structured interview schedule raise related question frame in that and
these questions interplay with the respondents of National Capital Region and Delhi, with
the help of data illustrate the information and comparison different level.

During the Media Trial Society involve in the case as agitator like the case of Nirbhya
whole country not only country but international platform raised the issue resulting
government pressurise to form a special Act, everybody known Nirbhya Act. It is the
direct impact of media trial on society. In the another case Yaqub Memon case elites
persons of the country define another type of human right definite another type of elite
protest who is the human and what are the human right a criminal or those 257 person who
killed in Bombay blast.

As a student of law it is very significant that some aspects of media trial would be
scientifically analyses the perception of media trial and its impact on society. In the another
case Kanhiya Kumar, JNU hearing at Patiala house court, first time in the country that the
direct impact of media trial on society and judicial system in this regards the role of the
Patiala house court lawyers and direct dictation given by the bench judges.

Thus second chapter significantly analysed impact of media trial on society and its
reactions.

The chapter third has elaborated the areas of trial by media and role of law. The description
of area of trial by media is very important to fair trial and judicial administration. In the
present study there are two type of cases like criminal case and civil cases, both the cases
raise political, economic, social and legal issues during the media trial.

The chapter analysed brief history and that issues which nationally highlighted like 2G
Spectrum case, Coal allotment scam, Naveen jindal threat by Zee news editors, Asharam
Bapu rape case etc. The interpretation of the case also described the court judgment and
the impact of cases in society and judicial system.

The role of media during trial in different areas of trial, media tackle the issues in
different perspective like critical perspective and sympathy perspective, in the case of
Sanjay Dutt media play a sympathizing role whereas Asharam Bapu case media play
critical role. So the perception of the media is important to areas of trial by media. In this
chapter the connection between areas of trial by media and role of role. In the role of law
explain the legal provisions of law and importance and significance of the justice and its
impact of media on society.
95
As a student of law it is important to give attention on role of law during trial by media for
the analysis that law is sufficient or not to natural justice and what legal aspects are
followed by the media in the interest of self or public.

It is the matter of scientific analysis and low for natural justice and of media trial in
different ways of interests. In this chapter full fill all the explanation which required to it.

The forth chapter Violation of Constitutional and legislative provisions of trial by media
explained that Media trial or trial by media is a phrase used to describe the negative impact
of television and newspaper coverage of cases pending before court. Media often create
an atmosphere of hysteria in sensational cases, beginning with commencement of
investigation and carried on till trial. Often, details leaked by investigating agencies to
media tend to affect the outcome of trial. By public hysteria, a fair trial with logical
conclusion often invites public wrath if it is adverse to the perceptions created by media
and media makers. In a country like India, mob mentality, independent of the media, is rare.
It is not that all judges get carried away by outpouring of the media and spokesmen, but it
puts them under pressure. Their verdict may, at times, be criticised insensibly if in contrast
with observations of the media.

In the forth chapter Violation of constitutional and legislative provisions of trial by media
are describe. The constitutional and legislative provisions describing the importance and
significant arrangements of freedom of speech are also illustrated. It is implication of the
article in the light of legal significance. Various legal and constitutional bodies used the
provisions and media uses that during the trials. It is simply explain the intensive structure
of the provisions.

M.P. Lodha v. State of West Bengal is one among many cases where the apex court came
down heavily on media trial. It was held thus “Having gone through the records, we find
one disturbing factor which we feel is necessary to comment upon in the interests of
justice. The death of Chandhni took place on 28th February, 2002 and the complaint in
this regard was registered and the investigation was in progress. The application for grant
of anticipatory bail was disposed of by the High Court of Calcutta on 13.2.2004 and
special leave petition was pending before this court. Even then, an article has appeared in a
magazine called ‘Saga’ titled “Doomed by Dowry” written by one Kakoli Poddar based on
her interview with the family of the deceased giving version of the tragedy and
extensively quoting the father of the deceased as to his version in the case. The facts
narrated therein are all materials that may be used in the forthcoming trial in this case and
we have no hesitation that this type of articles appearing in the media would certainly
interfere with the administration of justice. We deprecate this practice and caution the
96
publisher, editor and the journalist who was responsible for the said article against
indulging in such trial by media when the issue is subjudice. However to prevent any
further issue being raised in this regard, we treat the matter as closed, and hope that the
other concerned in journalism would take note of this displeasure expressed by us for
interfering with the administration of justice."

The fifth chapter 'Regulation to Control Media Trial' explained the Regulation of the Media
and the Citizens’ Right to Expression: Media Trial and Trammel it creates, Media is a
medium through which an effect is produced by whom the news etc. are made public. It is
regarded as the fourth pillar of the democracy, true as its impeding access to public domain
makes it even more important. With the passage of time mass media has grown by leaps
and bounds and has been creating and indelible impression on the minds of the public. The
Right to Expression of the Citizens has been garnered by the mass media and given new
dimensions to the views and the news.

The technology has paved way to more and more news channels and print media have
created a niche for their “effective” skills. The new vistas of mass media speak
monotonously about the nutty. It comes with issues and challenges in the public sphere.
Since, law is the means of social control, legal perspective in relation to media needs
special attention. Issues like media trial need comprehensive evaluation.

Media trial has become so very ‘obvious’ in our news channels that before the final verdict
is pronounced, the justice is delivered and served at media’s threshold? Unaware of the
fact that law takes its own course which should not and actually does not get fettered by
such influences. The judges do not decide cases based upon emotions but on! Facts and
evidences produced before the court of law. Such prejudices about issues, causes problems
in the judicial system which is all pervasive and deep. To avoid polarize opinions
among the society; we need that the media should stand out with its self- restrictive
mechanism.

The chapter six 'Trials by Investigative Media: The Judicial Approach' is based on
investigative journalism. To find out the secret techniques some information or news found
hidden in the society or in system. This type of situation required to investigate
intensively, generally reporters used this investigative journalism.

To understand investigating journalism currently at issue is highlight that is 'panama leaks'

worldwide. A group of investigative media explore the though internationally and
emerges new equations in the world, people are shocking. This explosion attract world
attention in investigative journalism and its utility and changing impact on media and its
trial on society as well as judicial system.
97
 In this chapter illustrated conceptual frame work of investigative media and effect of
investigative media in judicial trial. Here is also describe the media effect of reporting,
editors and publishers, judicial effect of advocates, government advocates, police person,
accused person, witness and complement. Other effects of activists, academician scholars
and profession.

In the end of this chapter explain field reality of the reporting of empirical aspects of
investigative media is explained.

During the field study many question are asked to respondents of National Capitals Region
and Delhi.

It is too important that in this regard researcher design many aspect to develop scientific
intentions and reach to objectivity and generalize the fact and illustrate the object simple
ways to bring a bridge between social activist and lawyers as well as judicial machinery.

1. Suggestions for the Further Researches and Planning

Some suggestions mention here which is outcome of the study. During the study scholar
find out some results and watch some observation. So some suggestion made to other
scholars, policy makers, planes, activist etc these are the following suggestions.

1. On the basis of first object respondents said that media person not uses proper
or genuine techniques to collect news, so if they uses the genuine technique
it would be better to all and these genuine techniques identity by himself.
And other professional which is associated with other professor also uses the
same. On the above finding/suggests that all category media, judiciary and
other should be use proper and genuine techniques and they should discuss
and structure the strategy.
2. On the basis of second object respondents said a nexus developed between the
media and other professionals and generate an atmosphere in society about
judicial activism and run several awareness campaigning resulting
disturbance in law and order and also affected the government machinery. On
the above finding suggests it is that the limitation of judicial activism which
is produced by media should be determined. And these limitations
determined should be in favour of public interest. Hence the law and order
and role of law would be strengthening.

98
3. On the basis of third object respondents said other professional and judiciary
faces complex situation by own colleagues during media trial or after media
trial. This effect of complex situation remains long time in society. On the
above finding it is suggested to minimise complex situation media should
favour the public interest and increase public participation in his activities to
gain public confidence and to disseminate positive message thus media gains
reputation and responsibility to the society.
4. On the basis of four object respondents said other professionals he said that
running the awareness campaign to judicial person to consider the media
activities which is pressurised by different pressure groups and regulate the
activities of pressure group by the social organizations and judiciary. On
the above finding suggests to minimise complex situation media should
favour the public interest and increase public participation in his activities to
gain public confidence and to disseminate positive message and media gains
reputation and responsibility to the society.
5. On the basis of fifth object respondents said they have not knowledge about
legislative and constitutional provisions regarding electronic media, and
media person may be uses these provisions or use casually. On the above
finding it is suggested that judiciary should began awareness campaign about
legislative and constitutional provision to aware public and people's
organization too. And also initiative's by people to know about the provision.
6. On the basis of sixth object respondents said that it's possible to regulate
media activities and slightly regulate media activities. Here they also
explain that they should be regulated by himself or with the uses of social
audit by himself. On the above finding suggests that media should initiative
his social auditing on different key issues. The people organization should
also run awareness and motivation activities to the mass.
7. On the basis of seven object respondents said that it's possible to regulate
media activities and slightly regulate media activities. Here they also
explain that they should be regulated by himself or with the uses of social
audit by himself. On the above finding suggests that media should initiative
99
 his social auditing on different key issues. The people organization should also run
awareness and motivation activities to the mass.
8. On the basis of eighth object respondents said electronic media some time
follow the rules and focus on public interest resulting person affected those
associated with judiciary or other professions. They should follow proper
techniques of collected of news. On the above finding suggests during the
media trial should be objective not subjecting and not repeat the trial
regularly. It should be follow the proper timing. Because maximum judiciary
effect. It is necessary for healthy judicial system.
9. The court can assist by preparing a reserved seating chart. In a capital case,
the court should issue seating passes, have a bailiff assigned outside the
courtroom door to check passes before entry, and issue a public, press,
student, and public information packet to give instructions to those wishing
to watch the trial in the courtroom.
10. If the case is extremely high profile, there will be an interest in daily press
conferences or press briefings. If the trial court can limit the attorney's ability
to give press conferences, the trial will progress quicker with the attorneys,
witnesses, and jurors focused on their jobs and not publicity. The
appointment of a court information officer can help provide the press with
accurate information on scheduling, legal terminology interpretation, and
logistical information. This may help relieve the media pressure upon the
attorneys and allow them greater freedom to focus on their cases.
Following the trial verdict, the press will be extremely interested in
interviewing the attorneys, witnesses, parties, and the jurors. At the
conclusion of the trial, counsel should make them available to address
questions in an ethical and professional manner. This may help foster public
confidence in the justice system. Counsel should be careful not to be critical of the jurors so
as not to improperly influence future jury pools.
11. An enormous distraction to the jurors, witnesses, attorneys, and the general
public is the parking of satellite trucks around the courthouse. The court
should consider designated parking areas for the satellite trucks at a

10
0
 location which is not noticeable to jurors and others coming to the
courthouse. Early direction, court orders, and constant enforcement of these
parking restrictions is important to provide a quiet atmosphere and proper
courthouse decorum for decision making in the case. The court's security and
media order should address media truck parking. Cooperation by the local
police department is needed to enforce these orders. The media will quickly
forget and violate these orders unless promptly enforced by the police.
12. Generally, the court will have better success in having local media comply
with the court's orders, because local media may need access to other cases
in the future. Many times the national media anticipate this is the one and
only time it will need access to that court and, therefore, its vested interest in
compliance is directly related to how much access it is deprived of if it
violates the court's order. Some organizations, such as true TV, have
developed an excellent reputation for cooperative and professional work.
The key is to provide information to these media organizations about what
the rules of access are and that they will be enforced.
13. The trial court should schedule the work day, publish that schedule, and keep
the attorneys on track. Unscheduled delays are frustrating to the jury,
counsel, the court's schedule, and allow the media to show a judicial system
which appears unorganized and unprofessional. Keeping to a trial day schedule is
difficult, but it can be accomplished by professional attorneys and an efficient and firm
judge.
14. This is not an all inclusive list of suggestions and thoughts, but these are
some concluding thoughts to help you identify the focus and additional work
that will accompany the capital case.
15. It takes a strong judge, professional and ethical attorneys, and lots of
preparation and good luck to provide a calm, reflective atmosphere in and
around the trial proceedings to assure the proper decorum and adjudicatory
environment for proper decision making.
16. The media may try hard to be responsive to the court's orders but some may
try to push the limits to get the best shot, sound bite, or journalistic

10
1
 advantage. There will be some media members who will agree to abide by
the orders and then violate them. Even when orders are specific and direct,
some members of the media may read them with an eye to approving
behavior in which they wish to engage and explaining away any prohibition
on conduct they intend to perform irrespective of the court's orders.
17. The trial judge should communicate clearly the expectation that the attorneys
will prepare their cases so that the trial of a capital case is tried in a timely
and efficient manner. Delays, unnecessary recesses, hearings outside the
presence of the jury, and unavailability of witnesses interrupt the trial’s
momentum and provide fertile ground for mistrials, jury misconduct, and
media mischief. Plan and prepare the trial court's schedule before trial and
organize the work days for a smooth trial presentation flow. Encourage
counsel to communicate with the court and opposing counsel regarding
problems with witness availability and needed bench hearings. Bench
hearings should be held after the jury is recessed for the day. Jury work days
should be full and focused. Contested evidentiary issues should be raised before trial or the
evening before that issue arises before the jury.
18. Limit press contact before the trial and during the trial. There are situations
where refusing to communicate with the media will dry up the high profile
nature of the case and result in a calm forum for disposition of the factual and
legal issues in the case. However, sometimes the high profile nature of the
proceedings is not going away and so limited, managed, focused, and
professional response regarding the case may give the media its sound bite
without adversely affecting the jury pool or jury.

10
2
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Gaur Dr. K.D, India Penal Code (2nd edition). Universal Law Publication, New Delhi, 2013

Gill Avtar Singh, Criminal Investigation and Trial, Punjab: Parmindra Publisher,
Chandigarh, 1962.

I
Iyer, J.V.R. Krishna., The Regional Media and the Democratic Process. Off the
Bench,

(Reprint) Universal Law Publishing co. Pvt. Ltd., New Delhi, 2005. Iyer, V.R. Krishna,
Our Courts on Trial., B.R. Publishing, Delhi, 1987.
J

Jain Prof M.P., Indian Constitution, 5th Ed. (Reprint), Law Publishing - Wadhwa and
Company, Nagpur, 2004.

Kakde, Vinayak D., Criminal Trials., Universal Law Publishing Co. Pvt. Ltd., New
Delhi, 2009.

Kapoor Dr. S.K., Human Right Under International Law and Indian Law, Allahahad, 2008.
Kapoor Dr. S.K., International Law along with Human Right, Allahahad, 2010.
Kasyap Subash C., Constitution of India, Vitasta Publication, New Delhi, 2010.

Kumar Mithilesh, Media Trial Versus Free And Fair Administration of Justice: Need
For Guidelines, Published by Singh & Associates, New Delhi, 2013.

ACTS

Criminal Procedure Code, 1973 Indian Panel Code, 1860

Press and Registration of Books Act 1867

The Cable Television Net work (Regulation) Act I 995. The Cinematography Act 1952.

The Code of Criminal Procedure (Amendment) Act 2010. The Constitution of India,
Reprint, 2015.

The Contempt of Court Act 1971. The Dowry Prohibition Act 1961. The Informatory Act
2000.

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The Police Act I 944.

The Press and Registration Act, 1867. The Press Council Act 1978
The Prevention of Corruption Act 1 988. The Prisons Act 1894.

The Protection of Human Rights Act 1943.

The Protection of Women from Domestic Violence Act 2005.

JOURNALS

Indian Law Institute, New Delhi

Journal of the Institute of Human Rights, Nagpur University, Nagpur Kerala Law Times,
Kerala

Law and Society, Journal of Indian, Kolkata

S.C. Notable Indian Trials. Saricar, Calcutta Supreme Court Journal, Publishing, New Delhi

REPORT

Law Commission of India, 200th Report, On Trial By Media Free Speech and Fair
Trial Under Criminal Procedure Code, 1973 August 2006

Sixteenth Report Of The Law Reform Commission, 1994

NEWS PAPER

Amar Ujiala Dainik Jagaran The Hindu

The Hindustan Times The Times of India Pubjab Keshri

Janvani

Dainik Bhaskar

Dainik Prabhat

Jansatta Navbharta Times

MAGAZINE

EPW
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India Today Maya

Naya Sandesh Outlook

WEBSITE :-

www.24duniya.com www.academia.edu www.childlahour.org www.citehr.com

www.danieljarthur.com www.forrester.com www.Indialaws.info www.indiankanoon.org
www.Indiatogether.org www.ito. org www.rt.com www.scribd.com www.unicef.org
www.Wikipedia.org.in www.indiatogether.org

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