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 HUMAN RIGHTS VIOLATIONS OF UNDER-TRIAL
PRISONERS: JUDICIAL IRRESPONSIBILITY
OR IMPUNITY?

-ANIL R. NAIR*

ABSTRACT

This paper takes a look at the cup of woes of under-trial

prisoners in India. Despite admirable ideals enshrined in
internationalinstruments, since independence, the under-
trial prisoner in India has been a perennial victim of
exploitation and abuse. Lack of distinction in the treatment
of under-trialprisoners and convicted prisoners, abysmal
and overcrowded prison conditions, absence of medical
facilities, violation of the right to speedy trial, all have led
to a steady erosion offaith of under-trials in the credibility
of criminal justice administration in the country. This is
aggravatedby toothlessprovisions of redress mechanism in
the CriminalProcedureCode, rampantcorruption, absence
of prison monitoring systems, lack of accountability of
prison andpolice officials, and the twin scourge ofcustodial
deaths. Landmark decisions of the apex court, though
laudable unto themselves, have failed to obliterate the need
for a comprehensive legislationin this regard, a truism which
the Parliamentis yet to wake up to.

I. INTRODUCTION
The modern concept of human rights can be seen to be the result of a
long, drawn-out struggle of supremacy between the primacy of the individual
and supremacy of the state. Essentially a western conceptualisation, the worth

LL.M. (Cochin); Advocate, High Court of Kerala; Research Scholar, School of

Legal Studies, Cochin University of Science and Technology, Kochi - 22.

9
Vol. 1I Nuals Law Journal 2007

of an individual's human rights remains interned to the value of a particular state's

human rights system. Human rights as an individualized, atomistic theory, is often
in conflict with the value-system of a state that is less individualistic and more
society-centric. However high the idealistic element in the western notions of
human rights is, it cannot always be assured to an individual in communities that
do not share the same social values'.
The legal systems of the world are fine-tuned to provide justice to the
victims of crime. In the process, the state reserves to itself the power to track
down the offender and punish him adequately, as determined by the existing
morals of the society. It perceives the crime against an individual member of the
society as a crime against the society as a whole. This justifies both the exclusion
of the victim from the process of prosecution as well as the punishment of the
offender by the state.
The use of the concept of human rights as a basic postulate of civilisation
to benchmark the degree of acceptance of the legitimacy of legal systems has
gained popularity more against tyrannical and despotic governments than against
the oppressive legal systems present in democracies. A reason for this state of
affairs could be due to the presence of inbuilt correctional mechanisms in legal
systems of democracies that are per se absent in other systems. The openness
of a legal system and its willingness to subject itself to outside scrutiny goes a
long way in it being a just system.
Under-trial prisoners are those unfortunate souls who languish in prisons
due to the inability of the legal system to provide a speedy trial. The absence of
a universally recognized mechanism to compensate those under-trial prisoners
who are acquitted at the end of their trial is one of the banes of our civilization.
In such cases, incarceration seems to be the price one has to pay for being at
the wrong place at the wrong time. It becomes the due one has to pay for being
part of the society, and the means by which society expects its incarcerated
members to contribute towards securing justice to all its members. Both

See also Pradeepta Ranjan Pattanayak, Human Rights - A ProteanPerspective,

INDIAN BAR REViEw, Vol. XXVIII (1), (2001), p. 51, on the asymmetric realities in
practical application of the western concept of human rights in India.

10
 Human Rights Violations of Under-trialPrisoners

pre-trial and under-trial prisoners face the same problems as a distinct class
when compared to convicted prisoners.
11. IDEALS ENSHRINED IN INTERNATIONAL INSTRUMENTS

The International Covenant on Civil and Political Rights 2 speaks of human

rights that must mandatorily be made available by the state to those whose liberty
is curtailed according to procedure established by law'. Accordingly, as a general
rule, no person is to be detained in custody while awaiting trial4 .Most importantly,
it declares that any person who is the victim of unlawful arrest or detention shall
have an enforceable right to compensations. Although India had made reservation
to these provisions', especially about the claim of the victim of unlawful arrest to

The International Covenant on Civil and Political Rights was adopted and opened
for signature, ratification and accession by the United Nations General Assembly
Resolution 2200A (XXI) of 16 December 1966. The Covenant entered into force on
March 26, 1976 - hereinafter the ICCPR.
Id. at Article 9.
4 Id. at Article 9(3) - The provision reads thus - "Anyone arrestedor detainedon a
criminal charge shall be brought before a judge or other officer authorizedby
law to exercisejudicialpower and shall be entitled to trial within a reasonable
time or to release. It shall not be the general rule that persons awaiting trial
shall be detainedin custody, but release may be subject to guaranteesto appear
for trial, at any other stage ofjudicialproceedings, and, should occasion arise,
for execution of the judgement".
Id. at Article 9(5) - The provision reads thus - "Anyone who has been the victim of
unlawful arrest or detention shall have an enforceable right to compensation".
6 Declaration by the uovernment of India, deposited with the United Nations on
April 10, 1979. The relevant provision reads thus - "II. With Reference to Article 9
of the InternationalCovenant on Civil and PoliticalRights, the Government of
the Republic ofIndia takes the position that the provisions ofthe Article shall be
so applied as to be in consonance with the provisions of Clauses (3) to (7) of
Article 22 of the Constitution of India. Further, under the Indian Legal system,
there is no enforceable right to compensationfor persons claiming to be victims
of unlawful arrest or detention againstthe state".

11
Vol. 1I Nuals Law Journal 2007

compensation, by subsequentjudicial pronouncements', it is now well recognized

that this reservation no longer holds good.
Unfortunately, though thejudicial wing ofthe government has undermined
the dicta of the executive wing of the government as regards compensation to
the victims of unlawful detention, the legislative wing of the government is yet to
draft any law specifying the quantum and mode of awarding compensation. In
the absence of specific guidelines laid down in the form of a law, even two
decades after the landmark judicial decisions, the claim of the victims to
compensation for unlawful arrest and detention remains uncertain. The victim is
now left to the vagaries associated with the changing whims and fancies of
individual judges in disparate courts.
The Universal Declaration of Human Rights, which although is a
declaration, has nevertheless gained the acceptability of the international
community and hence can be stated to have become part of international law. It
states, in Article 11(1), that it is the right of everyone charged with a penal
offence to be presumed innocent till proven guilty'. Yet, long periods of pre-trial
incarceration enabling torture, degradation, inhuman and cruel treatment of
persons taken into custody, remains the most common form of state-sponsored
human rights abuse in India.
III. THE SORD INnAN SCENARIO

With under-trial detenues being kept in the company of hardened

criminals, the distinction between custody for the purpose of investigation and
detention as a punishment becomes obliterated in the prisons in India.
Overcrowding in prisons that have woefully inadequate space results in lack of

' Rudul Shah v. State ofBihar, AIR 1983 SC 1086; Sebastian M Hongray v. Union
oflndia, AIR 1984 SC 1026; Bhim Singh v. State ofJammu & Kashmir, AIR 1986 SC
494; NilabatiBehera v. State ofOrissa, (1993) 2 SCC 746.
8 Article I 1(1) of the Universal Declaration of Human Rights reads thus - "Everyone
chargedwith a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees
necessaryfor his defence".

12
 Human Rights Violations of Under-trialPrisoners

any segregation between punished criminals and presumed innocents. The

inhuman conditions of the prisons, which have no worthwhile sanitation or medical
facilities, erode the under-trial prisoners' faith in criminal justice administration,
if any. The present system only breeds bitterness and anti-national feelings in the
under-trial prisoner, who may finally get an acquittal. Besides, there is a stark
absence of a meaningful package of compensation for those innocents who are
acquitted after being made to undergo loss of liberty and associated humiliation,
while being imprisoned for the purposes of investigation.

Most importantly, the opaqueness and inefficiency in the system provides

fertile ground for all sorts of corrupt practices to flourish and undermine the
Rule ofLaw. Only transparency and efficiency in administration, coupled with
accountability, can herald the desired changes in the destiny of the country.

In a scenario where there is ample scope for putting a person behind

bars - either in judicial custody or police custody - in abysmal conditions, in
overcrowded and unsanitary prisons or lockups, the fact of pre-trial incarceration
is more often a worse punishment than what the laws permit. It is in such a
situation that the role of the police as the investigative agency assumes a
disproportionate significance as the arbiter of destinies of unfortunate souls. In
India at least, this 'larger-than-law' role of the police is what is feared and
resented by the populace. This unrestrained and arbitrary power in the hands of
the police, coupled with almost non-existent supervision by an overburdened
judiciary, is the root cause of custodial deaths, use of third degree methods, and
rampant corruption, both in the jails and police stations.

While acquitting a person of penal charges, the law should also take
steps to ensure that his pre-trial imprisonment was not due to reasons of abuse
of power by vested interests. It becomes the bounden duty of the Magistrate to
award monetary compensation to those acquitted persons who were charged
and detained due to abuse of power by the administration. While doing so, it
also becomes his duty to identify the officer responsible for the misfeasance and
order recovery of the amount awarded as compensation from his personal assets.
Although the existing provisions of the Code of Criminal Procedure, 1973, allow

13
Vol. 1I Nuals Law Journal 2007

awarding of compensation to persons who are arrested groundlessly', the amount

mentioned is woefully inadequate and is more an insult rather than a palliative'0

.
Moreover, the provision does not provide for cases where arrest is due to abuse
of power by the police.
No doubt, it is necessary to guarantee immunity to officers in uniform,
legitimately acting in discharge oftheir official functions. But such immunity should
only extend to those officers who act within the strict frontiers of procedural
safeguards made to prevent abuse of power. A government servant who pays
no heed to procedures either does not understand the true purport of Rule of
Law or does not give a damn about it. Either way, while holding a position of
trust, no person should be allowed to violate the law with impunity. If even the
King were under God and Law", then it is sheer absurdity to provide impunity
to government officers who are but public servants.
Lack of proper monitoring facilities at the prisons and the numerous
lock-ups in the country is one of the main reasons for infliction of torture and
other third degree measures on the detenues. If steps are taken to ensure access

9 See Section 358 of the Code of Criminal Procedure, 1973.

10 Section 358(1) of the Code of Criminal Procedure reads thus - "Whenever any
person causes a police officer to arrest another person, if it appears to the
Magistrate by whom the case is heard that there was no sufficient ground for
causing such arrest, the Magistrate may award such compensation, not exceeding
one thousand rupees, to be paid by the person so causing the arrest to the person
so arrested, for his loss of time and expenses in the matter as the Magistrate
thinks fit".
" Rajindar Sachar, Role and Development ofJudiciary, INDIN BAR REVIEw, Vol. XXV
1, (1998), p. I at pp. 6-7. "...King James I ofEngland over 300 years back when he
summoned the Chief Justice Sir Edward Coke to stop interfering with the
prerogative of courts, "the king 's will", James asserted, "was supreme". Sir
Edward Coke, the Chief Justice of the Court of Common Pleas, responded that
the judges must follow the common law, to which King James I answered
wrathfully, "then I am to be under the law - which is but treason to affirm". Coke
replied by quoting Bracton, a medieval scholar monk; rex non debet esse sub
homine sedsub deo et lege, meaning, the King ought not to be under any man, but
under God and the Law.

14
 Human Rights Violations of Under-trialPrisoners

to independent monitors (either non-governmental registered organisations or

other state-recognised entities) to the police stations and the prisons in the
country, it would go a long way in ensuring accountability of police and prison
officials. The greatest weapon in the hands of any democratic country is public
scrutiny of government action and the resultant publicity, which alone can ensure
accountability.
One of the reasons for the inhuman conditions prevailing in prisons is the
lack of proper medical facilities or trained doctors on dutyl2 .The attitude of the
medical professional, attached to the prisons, contributes most negatively in
destroying the faith of the prisoner in the availability of facilities to ensure his
good health while in prison". With corruption being rampant, even medical

12 Standard Minimum Rules for the Treatment of Prisoners, adopted by the First
United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
held in Geneva in 1955, and approved by the Economic and Social Council by its
Resolutions 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977. Rule
22(1) reads thus - "At every institution there shall be availablethe services of at
least one qualified medical officer who should have some knowledge ofpsychiatry.
The medical services should be organised in close relationship to the general
health administrationofthe community or nation. They shall include a psychiatric
service for the diagnosis and, in proper cases, the treatment of states of mental
abnormality".
' Mukundan C. Menon, The Unending Emergency, available at http://
www.revolutionarydemocracy.org/ rdv1n2/emergency.htm, last visited January
21, 2006. "Forexample, a fortnight before observing the thirtiethanniversary of
the emergency, the National Human Rights Commission (NHRC) issued notices
on June 11 to the IGP (Prisons) and the ChiefSecretaryofAssam seeking details
offive under-trialprisoners remaining in the LGB Regional Institute of Mental
Health, Tezpur. They are: 1) Mat hang Lalung (77), an under-trialprisonerfor
the past 54 years; 2) Khalilur Rehman (70), under-trialfor 35 years; 3) Anil
Kumar Burman, an under-trialfor 33 years; 4) Sonamani Deb (49) and 5) Ms.
ParbatiMallik (both under-trialsfor 32 years). Notably, all of them were in jail
much before the emergency was declared in 1975, and they convalesce as under-
trials. Shockingly, different courts acquitted at least three of them, Rehman,
Burman andDeb, very many years ago". For more details on these cases see http:/
/www.nhrc.nic.in/disparchive.asp?fno=996, last visited January 21, 2006.

15
Vol. 1I Nuals Law Journal 2007

facilities are at a premium in the detention centres. Complicity of the medical

personnel in this sad state of affairs flies in the face of the relevant United Nations
General Assembly Resolutions 4

.
International norms expect under-trial prisoners to get special attention
that they are almost always denied in Indian conditions. Under-trial prisoners

4 Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly

Physicians, in the Protection of Prisoners and Detainees Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General
Assembly Resolution 37/194 of December 18, 1982. Principle 1 states thus - "Health
personnel, particularly physicians, charged with the medical care ofprisoners
and detainees have a duty to provide them with protection of their physical and
mental health and treatment of disease of the same quality and standard as is
afforded to those who are not imprisoned or detained".
15 Standard Minimum Rules for the Treatment of Prisoners, adopted by the First
United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
held in Geneva in 1955, and approved by the Economic and Social Council by its
Resolutions 663 C (XXIV) on July 31, 1957, and 2076 (LXII) of May 13, 1977. Rules
84 to 93 are concerned with 'Prisoners Under Arrest or Awaiting Trial'.
"84(1) Persons arrested or imprisoned by reason of a criminal charge against
them who are detained either in police custody or in prison custody
(fail) but have not yet been tried and sentenced, will be referred to as
"untried prisoners" hereinafter in these rules.
(2) Unconvictedprisoners are presumed to be innocent and shall be treated
as such.
(3) Without prejudice to legal rules for the protection of individual liberty
or prescribing the procedure to be observed in respect of untried
prisoners, these prisoners shall benefit by a special regime which is
described in the following rules in its essential requirements only.
85 (1) Untried prisoners shall be kept separate from convicted prisoners.
(2) Young untried prisoners shall be kept from adults and shall in principle
be detained in separate institutions.
86 Untried prisoners shall sleep singly in separate rooms, with the reservation
of different local custom in respect of the climate.
(f n. contd. on next page)

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 Human Rights Violations of Under-trialPrisoners

are to be presumed and treated as innocents; they are to be segregated from

convicted prisoners, be allowed separate sleeping quarters, be able to wear
different uniform that distinguishes them from convicts etc. After half a century
of independence, if India cannot even treat its prisoners humanely, it shows the
inability for self-governance. Even more dangerous is that fact that, it being a
subversion of Rule ofLaw, it destroys democracy, negates human rights and
discredits the right of India to call itself a civilised state.

87 Within the limits compatible with the good order of the institution, untried
prisonersmay, ifthey so desire, have theirfood procuredat their own expense
from the outside, either through the administrationor through theirfamily
orfriends. Otherwise, the administrationshall provide theirfood.
88 (1) An untriedprisoner shall be allowed to wear his own clothing if it is
clean and suitable.
(2) If he wears prison dress, it shall be different from that supplied to
convicted prisoners.
89 An untriedprisoner shall always be offered opportunity to work, but shall
not be requiredto work. If he chooses to work, he shall be paidfor it.
90 An untriedprisoner shall be allowed to procure at his own expense or at the
expense of a thirdparty such books, newspapers, writing materials and other
means ofoccupation as are compatiblewith the interestsofthe administration
ofjustice and the society and good order of the institution.
91 An untriedprisoner shall be allowed to be visited and treated by his own
doctor or dentist if there is reasonablegroundfor his application and he is
able to pay any expenses incurred.
92 An untriedprisoner shall be allowed to inform immediately hisfamily ofhis
detention and shall be given all reasonablefacilities for communicating
with hisfamily andfriends andfor receivingvisits from them, subject only to
restrictions and supervision as are necessary in the interests of the
administration riustice and oJ the security andgood order ofthe institution.
93 For the purposes of his defence, an untriedprisoner shall be allowed to
applyforfreelegal aid where such aid is available, and to receive visits from
his legal adviser with a view to his defence and to prepare and to hand to
him confidential instructions. Forthese purposes, he shall ifhe so desires be
supplied with writing material. Interviews between the prisoner and his
legal adviser may be within sight but not within the hearingof a police or
institution official".

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Vol. 1I Nuals Law Journal 2007

IV. THE EVIL TwIN: CUSTODIAL DEATHS

The National Human Rights Commission has, since 1993, issued standing
instructions to report to it within twenty-four hours, information of any death
occurring injail or police custody. If this information were not received within
the specified period, the Commission would presume that the authorities
concerned were trying to suppress the facts on such deaths. Even then, the
scenario in India is rather dismal. Not a single year has passed, since 1993,
when at least a hundred such deaths in police custody have not been reported.
To confound matters, the figures for the deaths injudicial custody are even
more.
The instances of officials punished for such gross human right abuses
are few and far between, to offer any kind of deterrence to abuse of power.
Punishments meted out to the higher officials, whose inadequate supervision or
plain recklessness or mismanagement creates the atmosphere for such deaths,
is a rarity. Institutional bias sabotages any attempt at meaningful investigations,
and judicial apathy and lack of ability and resources with the victims ensure that
the trials always end in acquittals of the officials concerned. This creates an
atmosphere of impunity, which suits the political masters and their minions in the
government, whose vested interests are often the root cause behind such custodial
torture and deaths.
If, in spite of landmark judgements of the Supreme Court from the late
1970s", the plight of under-trial prisoners in India has not improved and the
same human rights abuses continue to be perpetrated, then the fault lies not in

16 See the Official Website of the National Human Rights Commission,

http://
www.nhrc.nic.in/ for the Annual Reports.
1 HussainaraKhatoon (No.1) v. Home Secretary, State ofBihar, AIR 1979 SC 1360;
Hussainara Khatoon (No.2) v. Home Secretary, State ofBihar, AIR 1979 SC 1369;
Hussainara Khatoon (No.3) v. Home Secretary, State ofBihar, AIR 1979 SC 1377;
Prem Shankar v. Delhi Administration, AIR 1980 SC 1535; Sunil Batra (2) v.
Delhi Administration, AIR 1980 SC 1579; Sheela Barse v. State ofMaharashtra,
(1983) 2 SCC 96; State ofMaharashtra v. Ravikant S. Patil, (1991) 2 SCC 373;
Abdul RehmanAntulay v. R.S. Nayak, AIR 1992 SC 1630.

18
 Human Rights Violations of Under-trialPrisoners

lack ofjudicial intervention, but in lack of good faith on the part of the executive
to implement the laws of the land, and lack of duty-consciousness on the part of
the legislature to enact comprehensive laws for dealing with the menace. The
judicial wing of the government cannot bring about all-embracing judicial
pronouncements; it can only react within the confines offered by that particular
case before it. Neither is the judiciary equipped nor is it expected to bring about
such extensive codes. It becomes the imperative of the legislative wing of the
government to enact a comprehensive legislation to encompass the areas
unaddressed by piecemeal judicial dicta. It is the responsibility of the executive
wing of the government to check the rot in its delivery system. A government
that does not act in consonance with the popular will is only a step away from
losing the state to chaos and confusion". Such decay in administration would
lead India to be a state alien to civilised world 9 .
Further, deaths injudicial custody are most reprehensible and reflect
poorly on the justice delivery system. It not only undermines judicial legitimacy
but also subverts the very foundation of Rule ofLaw. Impunity here implies a
lawless state, which is nothing but a lost state.

I Supra n. 11 at p. 7 - "...It is well to recollect the warninggiven in a letter written

by Edmond Burke to hisfriend Mr. C.E Fox on 8' October, 1777, wherein he said
that "people crushed by law have no hope but from power. If laws are their
enemies, they will be enemies to laws, and those who have much to hope and
nothing to lose, will always be dangerous, more or less"".
19 The increasing influence of Naxalites among the people spreading across states
has happened due to the increasing alienation of the government from the people.
Such alienation has happeied because of the usage of the administrative
machinery, including the criminal justice delivery system, to promote the ends of
vested interests at the cost of the majority of the society. Custodial deaths
strengthen the hands of the reactionary forces. The increased violence used by
the police machinery to maintain law and order, whether through custodial deaths
or through false encounters or enforced disappearances, robs the legitimacy of
the government as the representative of the people.

19