Introduction:
Part three of the Indian Constitution provides fundamental rights to every citizen of our country. These rights are not only for ordinary citizens but also for the accused persons. The right to freedom is guaranteed in the Indian Constitution under the Articles 19, 20, 21A, and 22. Under the right to freedom, Articles 20 and 22 provide various rights and protections to individuals who are either accused or convicted for crimes. Article 20 gives protection in respect of conviction whereas article 22 safeguards a person from arbitrary arrest and detention. If an accused is deprived of these rights then it is considered to be deprivation of his/her personal liberty under Article 21. The protection offered by the Indian law to the prisoners are analyzed and international treaties in this regard are also examined.
Prisoner and their protection:
A person who commits an act prohibited by the law of the land and is kept in custody either in jail or in prison is known as a “prisoner”. The main reason for keeping an accused in custody is to make him/her realize about their fault and to reform into a good human being. A prisoner cannot be deprived of his/her rights and is entitled to constitutional rights and remedies. They are also entitled to every human right as an ordinary citizen. The rights of prisoners are guaranteed under various international and national instruments. Under the Indian constitution Articles 20 and 22 focus on the protection of prisoner and the same make sure that the prisoner’s other fundamental rights are not affected.
Article 20:
Article 20 provides three types of safeguards to the accused:
Ex post facto law
Double jeopardy
Prohibition against self discrimination
These are elaborated in detail below,
Article 20(1):
“ No person shall be convicted of any offense except for violation of the law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense”[1]
Art 20 clause 1 involves the concept of Ex Post Facto Law. The meaning of this term is “penalty for an offense is imposed retrospectively”. For instance, if an Act has come into force on a particular date then a person who is found guilty under this act shall be punished only after the commencement date and not before the commencement date. Thus, the said legislation cannot provide punishment to a person by making a law before the date of its commencement.
In the case Chief Inspector of Mines v. K.C. Thapper it was stated that “If an act is not an offense at the date of its commission it cannot be an offence at the date subsequent of its commission”[2]. Hence it is clear that the old act cannot be punished by the new law.
Article 20(2):
“No person shall be prosecuted and punished for the same offence more than once[3]”
The Doctrine of Double Jeopardy is applied here. The core point of this clause is to avoid punishment. When a person has committed only one crime, he should be punished only for that. No successive criminal proceedings can be started against him. A person should not be put twice for the same peril which is based on the ancient maxim popularly known as NEMO DEBET BIS VEXARI and AUTREFOIS CONVICT. The former maxim translated that “If a person has been previously convicted for the same offence then he or she cannot be tried for the same again” and the later maxim conveys that, “on being prosecuted, a man is being acquitted on the same charge”, these two aspects evolve around the Double Jeopardy doctrine. The court held that the fundamental right which is guaranteed under Article 20(2) enunciates the principle of ‘autrefois convict’ or ‘double jeopardy[4]”.
Article 20(3):
“No person accused of any offence shall be compelled to be a witness against himself[5]”
No person shall be compelled to give any testimony which will expose him to be a criminal. The cardinal principle of the English law is that the accused must be presumed to be innocent till his guilt is proved and it is the prosecution on whom the burden of proof lies. No man is bound to accuse himself.
In the case of, Delhi Judicial Service Association v. the State of Gujarat, it was held that the mere issue of notice does not attract article 20(3) as the contemners are not “accused of any offence”[6].
ARTICLE 22:
Under part three of the fundamental rights, Article 22 safeguards the individuals who have been arrested or detained for committing any offence. This Article applies to both citizens and non-citizens but it does not apply to alien or persons who are arrested for preventive detention.
Article 22(1):
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice[7]”
In the case Tarapada De v State of West Bengal, it was held that the term “as soon as may be” means as nearly as is reasonable in the circumstances of a particular case[8].
This Article provides a person his/her right to be informed about the grounds of arrest. This enables the convict to prepare his defense. The arrested person should neither be deprived of knowing the reason for his arrest nor should he be detained from consulting a lawyer. The arresting authority must disclose the grounds of arrest at the time of the arrest. If there is any delay in disclosing the grounds of arrest, it must be justified by stating the reasonable circumstances, if there was any.
The right of being informed about the grounds of arrest is not dispensed even when bail is offered to the arrested person[9].
Article 22(2):
Every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate[10].
This article provides the right to be produced before a magistrate within 24 hours of arrest and the right to be released unless the magistrate orders further detention after 24 hours.
It is mandatory under Art 22(2) and sec 57 of Cr.P.C., that the accused must be physically produced before the Magistrate under sec 167 Cr.P.C.[11]
Clauses 4 to 7 in Article 22 say about the rules of- how a person can be arrested under the law of preventive detention.
The concept of preventive detention is to prevent a person from doing a wrongful act. Hence under Art 22(3) the protection under clause 22(1) and 22(2) shall not be available to a person who is arrested under preventive detention.
The importance of such detention is that suspicion of the detenu committing some act likely to cause harm or endanger to the society or government[12].
Sathankulam case:
The recent case of custodial death of the father and son duo in sathankulam attracts Article 22 clause 1.
The issue was that the judicial magistrate of sathankulam ignored the mandate of Art 22(1) given to him and why he was silent when the prisoners were tortured by the police[13].
International treaties:
The word ‘person’ here includes every citizen of India including the accused and prisoners.
Since India is a party, to the aforementioned treaties, it must follow and abide by rules. Thus, this makes it clear that India is bond to take care of the protection of prisoners.
Conclusion:
In India, we have various laws to govern the protection of prisoners. But in reality, still prisoners are treated in such a way that they are deprived of their rights. The sathankulam case acts as the best example of this bitter truth. We have laws to govern the protection of the prisoners but the only matter is every citizen of India should follow those laws and create awareness about the same. No one has the authority to deprive the rights of another person. Every person though he/she is a criminal or not should be given the right to know why they are being arrested and should be given the opportunity to consult a lawyer.
Case Laws:
[1] Article 20(1) of The Indian Constitution.
[2] AIR 1961 SC 883.
[3] Article 20(2) of The Indian Constitution.
[4] Sangeetaben Mahendrabhai Patel v. State of Gujarat& Anr, (2012) 7 SCC 621.
[5] Article 20(3) of the Indian Constitution.
[6] (1991) 4 SCC 406.
[7] Article 22(1) of the Indian Constitution.
[8] AIR 1951 SC 174.
[9] State of MP v Shobharam, AIR 1996 SC 1910.
[10] Article 22(2) of the Indian Constitution .
[11] State By v K.N. Nehru.
[12] A.K. Gopalan v State of Madras, AIR 1915 SC 27.
[14] Article 10 of the International Covenant on Civil and Political Rights.
[15] Article 5 of Universal Declaration of Human Rights.
K.Ilakkiya,
Bba.Llb(Hons.)
SASTRA UNIVERSITY
