A Convict is a person whose crime has been proven before the Court of Law and it has been held guilty of an offence by that Court of Law whereas an Accused is a suspect against whom an FIR or complaint has been lodged and he is yet to proven guilty of an offence.
1. UNDER SECTION 55-A OF CODE OF CRIMINAL PROCEDURE 1973
It is provided under section 55A of the Code of Criminal procedure, 1973 that it is the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. Section 55-A Cr.P.C is reproduced as under:
55-A: Health and Safety of arrested person: – It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.
2. DUTY OF MEDICAL OFFICER UNDER PRISONS / JAILS MANUAL TO PROVIDE PROPER MEDICAL CARE OF PRISONERS
That even under the Punjab Jail Manual 1996 which also applies to the State of Haryana, there casts a duty upon the Medical Officer to report cases of certain nature to Superintendent. Relevant Rules are reproduced below:
103. Duty with regard to sick prisoners and malingers. – (1) The Medical Officer shall daily visit the sick in the hospital and shall examine every prisoner who may complain of any illness and may, if necessary, direct the admission of any such prisoner to hospital.
104. Medical Officer to report in certain cases. – Whenever the Medical Officer has reason to believe that the mind of a prisoner is or is likely to be, injuriously affected by the discipline or treatment to which he is subjected, the Medical Officer shall report the case in writing to the Superintendent together with such observation as he may think proper.
3. INTERNATIONAL PERSPECTIVE:
Article 25.1 of the Universal Declaration of Human Rights affirms: “Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services”.
The International Covenant on Economic, Social and Cultural Rights provides the most comprehensive article on the right to health in international human rights law. In accordance with article 12.1 of the Covenant, States parties recognize “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”, while article 12.2 enumerates, by way of illustration, a number of “steps to be taken by the States parties … to achieve the full realization of this right”.
4. VIOLATION OF ARTICLE 21 OF THE CONSTITUTION OF INDIA
In the case of Re-Inhuman Conditions in 1382 Prisons, 2017 (4) RCR (Criminal) 416 Supreme Court has issued directions with respect to various aspects of life and liberty of prisoners.
The relevant paragraphs of the Judgment are being reproduced as under:
- The learned Amicus submitted that the General Assembly of the United Nations adopted the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) adopted on 17th December, 2015. These Rules provide useful internationally accepted guidelines for implementation by prison administrations across the country. He drew our particular attention to Rules 58 to 63 which deal with prisoner contact with the outside world. It was submitted that merely because a person is in prison, it does not mean that he or she should be cut off from the outside world. In fact, the prisoner should be allowed to communicate with his family and friends at regular intervals and should also be permitted to communicate and consult with a legal adviser of his or her choice. This by itself could have a soothing effect on the prisoner. He submitted that prisoners should be informed of important items of news through newspapers, periodicals or special institutional publications so that contact with the outside world is maintained. This, according to the learned Amicus, would substantially reduce the feeling of isolation that a prisoner has and would have an impact on his or her mental stability thereby reducing the possibility of any harmful activity by the prisoner.
- Adverting to the Nelson Mandela Rules, the learned Attorney General also expressed the view that State Governments have several development priorities and while they will certainly look after the interests of prisoners, there are other issues that might require greater attention and greater financial commitment. While this may be so, we are clearly of the view that Article 21 of the Constitution cannot be put on the back burner and as mentioned in the Mandela Rules even prisoners are entitled to live a life of dignity. Therefore, no State Government can shirk its duties and responsibilities for providing better facilities to prisoners. If a State Government is unable to do so, it should be far more circumspect in arresting and detaining persons, particularly under-trial prisoners who constitute the vast majority of those in judicial custody. The State Governments and the prosecution do not have to oppose every bail application nor do they have to ask for the remand of every suspect pending investigation. If the fundamental right to life and liberty postulated by Article 21 of the Constitution is to be given its true meaning, the Central Government and the State Governments must accept reality and not proceed on the basis that prisoners can be treated as chattel.
The need to reform
- The factual material referred to above is an indication that steps are being taken in some form or the other by the Central Government and hopefully by the State Governments to ameliorate the conditions of prisoners across the country and thereby reduce the number of unnatural deaths. These steps give an impression that there is nothing to be seriously worried about. However, the statistics provided by the NCRB reflect the ground reality and dispel that impression. It is time for the State to go beyond projections through circulars and advisories and actually come to grips with reality as it exists in a very large number of prisons. What is practised in our prisons is the theory of retribution and deterrence and the ground situation emphasizes this, while our criminal justice system believes in reformation and rehabilitation and that is why handcuffing and solitary confinement are prohibited. It is this `rejection’ of the philosophy of our criminal justice system that leads to violence in prisons and eventually unnatural deaths.
- This Court has time and again emphasized the importance of Article 21 of the Constitution and the right to a life of dignity. There must be a genuine desire to ensure that the guarantee to a life of dignity is provided to the extent possible even in prisons, otherwise Article 21of the Constitution will remain a dead letter. It must be appreciated by the State that the common person does not violate the law for no reason at all. It is circumstances that lead to a situation where there is a violation of law. On many occasions, such a violation may be of a trivial nature or may be a one-time aberration and, in such circumstances, the offender has to be treated with some degree of humanity. At least in such cases, retribution and deterrence cannot be an answer to the offence and the offender. Unless the State changes this mindset and takes steps to give meaning to life and liberty of every prisoner, prison reforms can never be effective or long lasting.
We are of the view that on the facts and in the circumstances before us, the suggestions put forward by the learned Amicus and the learned counsel appearing for the National Forum deserve acceptance and, therefore, we issue the following directions:
- The Secretary General of this Court will transmit a copy of this decision to the Registrar General of every High Court within one week with a request to the Registrar General to place it before the Chief Justice of the High Court – We request the Chief Justice of the High Court to register a suo motu public interest petition with a view to identifying the next of kin of the prisoners who have admittedly died an unnatural death as revealed by the NCRB during the period between 2012 and 2015 and even thereafter, and award suitable compensation, unless adequate compensation has already been awarded.
- The Union of India through the Ministry of Home Affairs will ensure circulation within one month and in any event by 31st October, 2017 of (i) the Model Prison Manual, (ii) the monograph prepared by the NHRC entitled ” Suicide in Prison – prevention strategy and implication from human rights and legal points of view”, (iii) the communications sent by the NHRC referred to above, (iv) the compendium of advisories issued by the Ministry of Home Affairs to the State Governments, (v) the Nelson Mandela Rules and (vi) the Guidelines on Investigating Deaths in Custody issued by the International Committee of the Red Cross to the Director General or Inspector General of Police (as the case may be) in charge of prisons in every State and Union Territory – All efforts should be made, as suggested by the NHRC and others, to reduce and possibly eliminate unnatural deaths in prisons and to document each and every death in prisons – both natural and unnatural.
- The Union of India through the Ministry of Home Affairs will direct the NCRB to explain and clarify the distinction between unnatural and natural deaths in prisons as indicated on the website of the NCRB and in its Annual Reports and also explain the sub-categorization `others’ within the category of unnatural deaths – The NCRB should also be required to sub-categorize natural deaths – The sub-categorization and clarification should be complied with by 31st October, 2017.
- The State Governments should, in conjunction with the State Legal Services Authority (SLSA), the National and State Police Academy and the Bureau of Police Research and Development conduct training and sensitization programmes for senior police officials of all prisons on their functions, duties and responsibilities as also the rights and duties of prisoners – A copy of this order be sent by the Registry of this Court to the Member-Secretary of each SLSA to follow-up and ensure compliance.
- The necessity of having counselors and support persons in prisons cannot be over-emphasized – Their services can be utilized to counsel and advice prisoners who might be facing some crisis situation or might have some violent or suicidal tendencies – The State Governments are directed to appoint counselors and support persons for counselling prisoners, particularly first-time offenders – In this regard, the services of recognized NGOs can be taken and encouraged.
- While visits to prison by the family of a prisoner should be encouraged, it would be worthwhile to consider extending the time or frequency of meetings and also explore the possibility of using phones and video conferencing for communications not only between a prisoner and family members of that prisoner, but also between a prisoner and the lawyer, whether appointed through the State Legal Services Authority or otherwise.
- The State Legal Services Authorities (SLSAs) should urgently conduct a study on the lines conducted by the Bihar State Legal Services Authority in Bihar and the Commonwealth Human Rights Initiative in Rajasthan in respect of the overall conditions in prisons in the State and the facilities available – The study should also include a performance audit of the prisons, as has been done by the CAG – The SLSAs should also assess the effect and impact of various schemes framed by NALSA relating to prisoners – We request the Chief Justice of every High Court, in the capacity of Patron-in-Chief of the State Legal Services Authority, to take up this initiative and, if necessary, set up a Committee headed preferably by the Executive Chairperson of the State Legal Services Authority to implement the directions given above.
- Providing medical assistance and facilities to inmates in prisons needs no reaffirmation – The right to health is undoubtedly a human right and all State Governments should concentrate on making this a reality for all, including prisoners – The experiences in Karnataka, West Bengal and Delhi to the effect that medical facilities in prisons do not meet minimum standards of care is an indication that the human right to health is not given adequate importance in prisons and that may also be one of the causes of unnatural deaths in prisons – The State Governments are directed to study the availability of medical assistance to prisoners and take remedial steps wherever necessary.
- The constitution of a Board of Visitors which includes non-official visitors is of considerable importance so that eminent members of society can participate in initiating reforms in prisons and in the rehabilitation of prisoners – Merely changing the nomenclature of prisons to `Correction Homes’ will not resolve the problem – Some proactive steps are required to be taken by eminent members of society who should be included in the Board of Visitors – The State Governments are directed to constitute an appropriate Board of Visitors in terms of Chapter XXIX of the Model Prison Manual indicating their duties and responsibilities – This exercise should be completed by 30th November, 2017.
- The suggestion given by the learned Amicus of encouraging the establishment of `open jails ‘ or `open prisons’ is certainly worth considering – It was brought to our notice that the experiment in Shimla (Himachal Pradesh) and the semi-open prison in Delhi are extremely successful and need to be carefully studied – Perhaps there might be equally successful experiments carried out in other States as well and, if so, they require to be documented, studied and emulated.
- The Ministry of Women and Child Development of the Government of India which is concerned with the implementation of Juvenile Justice (Care and Protection of Children) Act, 2015 is directed to discuss with the concerned officers of the State Governments and formulate procedures for tabulating the number of children (if any) who suffer an unnatural death in child care institutions where they are kept in custody either because they are in conflict with law or because they need care and protection – Necessary steps should be taken in this regard by 31st December, 2017.
Lastly, it was observed by the Hon’ble Supreme Court of India that “We expect the above directions to be faithfully implemented by the Union of India and State Governments – In the event of any difficulty in the implementation of the above directions, the Bench hearing the suo motu public interest litigation in the High Court in term of our first direction is at liberty to consider those difficulties and pass necessary orders and directions. “