The research methodology in the project is doctrinal.

The problem faced here is the confusion between law and morality.

This topic is of grievous importance from the human rights point of view. Even though it is one of the oldest theories of law, it can still be as Is still applied even today in the making of many laws and in this project we are to discuss the influence of natural law on protection of prisoners rights.

To completely understand the same, we need to first study natural law in brief, to learn about the prisoners’ rights in India and then finally, find the influence the Natural law theories have on Protection of prisoners rights. For the clarity of the same some contemporary cases also have been added.

As the topic is purely theoretical, I have taken up the doctrinal nature of study.

Secondary sources of data have been used in the project, like books articles, case laws etc.

Books like, A brief history of human rights by The Cyrus Cylinder and. Legal Theory by W. Friedmann have been of great help in making of this project, the first book enlightened topics of natural law and important theories of the same to me while the latter discussed jurisprudential points that ii could relate to prisoner’s rights.

Natural law theories: An introduction

Natural law theory has been remarkably influential in the evolution of the human thought on the conception of justice for more than 2,500 years since its inception. In fact, as Friedmann aptly says, 'the history of natural law is a tale of the search of mankind for absolute justice and its failure'¹. The revival of natural law in the late nineteenth and early twentieth centuries reflected itself in several modern theories. The skepticism of modern thinkers against an absolute idea of justice, their relativist view of world and above all their unflinching belief in the progress of mankind resulted in the rejection of the older notions of natural law as a law which is immutable, eternal and universal². In its modern incarnation natural law became 'an evolutionary ideal, and thus as a directive force in the development of positive law'³.

The origins of natural law lie in the thought of the philosophers and jurists of the ancient world. They were convinced that there were rules for human behavior based upon objective, eternal norms. They conceived of these norms as having been established by nature and human reason. The Romans were the first to coin the term “natural law”(ius naturale).⁴ Justinian’s codification also included a introductory textbook for the study of law called the Institutes. The definition of natural law in the Institutes moved the source of natural law from the behavior of creatures to God: “Natural laws are established by divine providence and always remain firm and immutable”⁵.

Natural Law’s Role

Natural Law plays an important role in the interpretation of laws. For example,in case of Corbett v Corbett⁶, two persons married each other where the “wife” was actually a male who had undergone a sex operation and married the petitioner who also knew about this. The petitioner wanted to annul the marriage. The court ordered the marriage to be annulled on the ground that the marriage between a man and a person who had undergone a sex change was null and void since it could not involve the natural biologically-determined consequences of marriage. Obviously the judge, in this case, based on his judgment on the biological aspect of marriage which was regarded as the very foundation of marriage and since it was lacking in this case the judge found no difficulty in annulling it.

Protection of prisoner’s rights : Indian perspective

A person deprived of liberty and kept in prison or some other form of custody as a punishment for a crime, while awaiting trial, or for some other reason is called a prisoner. No doubt they can be deprived from their Freedom of Movement. But still they are to be treated as human beings.

THE CONSTITUTION OF INDIA

Article 21 of the Indian Constitution enshrines Right to life and personal liberty “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”. It has larger connotations than just the text. It is not merely freedom from physical torture and it's much more than that.

Supreme court of India recognised several rights and protection for the prissiness, like as :

(i) Right to free legal aid.

(ii) Right to speedy trial

(iii) Right against hand cuffing

(iv) Right against inhuman treatment

(v) Right against pubic hanging

(vi) Prisoner’s Grievances

CASE LAWS

In M.H. Hoskot v State of Maharastra⁷ 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 fear, just and reasonable procedures implicit in Article 21.

In Anil Rai v. State of Bihar⁸ Supreme Court took a serious note of delay in delivery of judgements. The court observed that any inordinate, unexplained and negligent delay in pronouncing the judgement by the high court infringed the right under Article 21 of the Constitution.

In Prem Shanker v Delhi Administration⁹, the supreme court declared that hand cuffing is prima facia inhuman and therefore unreasonable is over harsh and that the first flush, arbitrary. A rule requiring every trial person accused of a non-boilable offence punishable with more than 3 yrs. Prison term to be routinely hand cuffed during transit from prison to court for trial violates Articles 14, 19 & 21.

OTHER ACTS

The other acts that have been enacted in reference to prisoners rights in India are: Code of Criminal Procedure, 1973, Exchange of Prisoners Act, 1948, Identification of Prisoners Act, 1920, Indian Penal Code Act, 1860, Juvenile Justice (Care & Protection) Act, 2000, Mental Health Act, 1987, Model Prison Manual, 2003, Prison Act, 1894, Prisoners Act, 1955, Prisoners Act, 1900, Probation of Offenders Act, 1958, Protection of Human Rights Act, 1993, Reformatory School Act, 1897, Repatriation of Prisoners Act, 2003, Representation of People’s Act, 1950 and 1951, Transfer of Prisoners Act, 1950, Law Commission Reports .

The relevant laws that they enshrine are:

A convict:

1. Should be treated with dignity.¹⁰

2. Should not be subjected to any physical /mental torture or any kind of inhuman or degrading punishment.¹¹

3. Must be presented with means to express his/her grievances faced within the jail.¹²

4. Has right to meet his lawyer and family members at least twice a week.¹³

5. Has right to send letters to his relatives and to other prisoners irrespective of their relationship.¹⁴

6. Can give press interview, subject to reasonable restrictions.¹⁵

7. Cannot be held in slavery and or servitude and Cannot be subjected to any labour which is exploitative in nature.

8. Should be equitable remunerated for his labour and should not be paid below the prescribed wages.¹⁶

Prisoners rights protection: International conventions

The prisoners rights have been protected by many conventions and treaties through the UN among different nations, binding on all its signatories. Some of them are: Basic principles for the treatment of prisoners, 1990, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984, Universal Declaration of Human Rights, 1948, they entail:

1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.¹⁷

2. All prisoners shall be treated with the respect due to their inherent dignity and value as human beings.¹⁸

3. There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.¹⁹

4. It is, however, desirable to respect the religious beliefs and cultural precepts of the group to which prisoners belong, whenever local conditions so require.²⁰

5. The responsibility of prisons for the custody of prisoners and for the protection of society against crime shall be discharged in keeping with a State's other social objectives and its fundamental responsibilities for promoting the well-being and development of all members of society.²¹

6. Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.²²

7. All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.²³

8. Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged.²⁴

9. Conditions shall be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the country's labour market and permit them to contribute to their own financial support and to that of their families.²⁵

10. Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.²⁶

11. With the participation and help of the community and social institutions, and with due regard to the interests of victims, favorable conditions shall be created for the reintegration of the ex-prisoner into society under the best possible conditions.²⁷

Relative influence seen of Natural Law Theories on protection of prisoner’s rights

The prisoners as defined earlier are human beings, and therefore deserve certain basic rights such as human rights. The moral position and legal position of prisoners are often confused leading to ill treatment of them. In his theory Thomas Aquinas’s view, a law is “a rule or measure of human acts, whereby a person is induced to act or is restrained from acting”. Elsewhere, he describes a law as a “dictate of practical reason emanating from a ruler”. At a very general level, then, a law is a precept that serves as a guide to and measure of human action. Thus whether an action is good will depend on whether it conforms to or abides by the relevant law and not morals. ²⁸

As given in the social contract theory, there are some basic rights with all citizens after they have surrendered all their rights. Thus those basic rights are also for the prisoners.

From Babylon, the idea of human rights spread quickly to India, Greece and eventually Rome. There the concept of “natural law” arose, in observation of the fact that people tended to follow certain unwritten laws in the course of life, and Roman law was based on rational ideas derived from the nature of things.²⁹

Natural rights are universal rights that are seen as inherent in the nature of people, and not contingent on human actions or beliefs. An individual enters into society with certain basic rights and no government can deny these rights.

With the growth of the idea of individualism, especially in the 17th cent., natural law doctrines were modified to stress the fact that individuals, because they are natural beings, have rights that cannot be violated by anyone or by any society.

Documents asserting individual rights, such as the Magna Carta (1215), the Petition of Right (1628), the US Constitution (1787), the French Declaration of the Rights of Man and of the Citizen (1789), and the US Bill of Rights (1791) are the written precursors to many of today’s human rights documents.³⁰

In 1215, after King John of England violated a number of ancient laws and customs by which England had been governed, his subjects forced him to sign the Magna Carta, which enumerates what later came to be thought of as human rights.³¹

The next recorded milestone in the development of human rights was the Petition of Right, produced in 1628 by the English Parliament and sent to Charles I as a statement of civil liberties. Arbitrary arrest and imprisonment for opposing some policies had produced in Parliament a violent hostility to Charles and to George Villiers, the Duke of Buckingham.³²

The Bill of Rights³³ protects freedom of speech, freedom of religion, the right to keep and bear arms, the freedom of assembly and the freedom to petition. It also prohibits unreasonable search and seizure, cruel and unusual punishment and compelled self-incrimination.

The principles laid down in the first Geneva Convention and maintained by the later Geneva Conventions provided for the obligation to extend care without discrimination to wounded and sick military personnel and respect for and marking of medical personnel transports and equipment with the distinctive sign of the red cross on a white background.³⁴

By 1948, the United Nations’ new Human Rights Commission had captured the world’s attention. The Member States of the United Nations pledged to work together to promote the thirty Articles of human rights that, for the first time in history, had been assembled and codified into a single document. In consequence, many of these rights, in various forms, are today part of the constitutional laws of democratic nations.³⁵

Contemporary cases

· In ADM Jabalpur v/s. Shiv Kant Shukla,³⁶ The Supreme Court carried the ratio of the habeas Corpus case that Article 21 is the sole repository of life and liberty and during the emergency when liberty is suspended, due to the Presidential proclamation suspending Article 21, to the Prison conditions, and held in Bhanudas's case that a detainee during emergency could not agitate for better Jail Conditions and facilities

· In Prem Shankar Shukla v/s. Delhi Administration,³⁷ the Supreme Court struck down the provisions of the Punjab Police rules which discriminated between the rich and the poor prisoner in deter-mining who was to be handcuffed. The Court also held that in the absence of the escorting authority re-cording why the prisoner is being put under handcuffs, the procedure of handcuffing is a violation of Article 21.

· In Khatri v/s. State of Bihar,³⁹ It is the duty of a trial court to inform the accused that he is entitled to free legal aid service or a lawyer of his choice.

· In M.H.Haskoot v/s. State Of Maharashtra,³⁹ Indian Supreme Court held that, when ever an under trial an accused as a prisoner are unable to defend themselves, then it is the obligation of the state to provide free legal assistant to such prisoner. Why because even though, they have been deprived from their liberty by the state the free and fair is a part and parcel of - Article 21. Therefore free legal assistant go hand in hand or along with free trial. Otherwise it would be anti-national. How can we discriminate due to they don't have anybody to appear on behalf of them. That is the role of government advocates.

· In Charles Sobraj vs. The Suptd., central jail, Tihar. New Delhi,⁴⁰ The Supreme Court again in a separate writ petition filed by Sunil Batra and Charles Sobharaj, two prisoners in Delhi's Tihar jail, made an effort to humanize jail conditions. The court held that Sunil Batra's mercy petition to the President/Governor had not been disposed off and Batra was not "under sentence of death." His solitary confinement was quashed. In the case of Charles Sobhraj, it was held that there was no arbitrary power to put an under trial under bar-fetters

SUGGESTIONS:

There is no doubt that it is the democratic legitimacy which characterizes our era. Liberty and freedom are the elements of prisoner’s human right and democracy. In so far as developing countries are concerned it has to be observed that must believe in democracy and human rights of prisoners.⁴⁰

Prisoners rights are protected and should be protected, the natural law theories have a great influence on the same. The rights as given by the Indian constitution and other legislations are commendable but should be matched up with latest international conventions.

It is best to conclude that thought the prisoner’s rights are protected well than before but still there is a lot more to do in the same, for complete assurance of application, implementation and updating of these rights.

REFERENCES:

1. W. Friedmann. Legal Theory (Third Indian Reprint 2003), 95.

2. Ibid

3. Ibid

4. Ennio Cortese, La norma giuridica: Spunti teorici nel diritto comune classico (2 Vols. 1962) 1.1-141. Brian Tierney

5. http://faculty.cua.edu/pennington/Canon%20Law/NaturalLaw.htm

6. [1970] 2 AER 33 at 48 f/g

7. AIR 1978 S.C. 1548

8. AIR 2001 S.C. 3173

9. AIR 1980 S.C. 1535

10. Right to Human Dignity, Model Prison Manual, 2003

11. Right to Access to Law, Model Prison Manual, 2003

12. Facilities, Model Prison Manual, 2003

13. Right to Communication, Model Prison Manual, 2003

14. Right to Communication, Model Prison Manual, 2003

15. Right to Meaningful and Gainful Employment, Model Prison Manual, 2003

16. Article 5, Universal Declaration of Human Rights, 1948

17. Basic principles for the treatment of prisoners, 1990

18. Ibid .

19. Ibid .

20. Ibid .

21. Ibid .

22. Ibid .

23. Ibid .

24. Ibid .

25. Ibid .

26. Ibid .

27. Thomas Aquinas: Moral Philosophy

28. A brief history of human rights, The Cyrus Cylinder (539 B.C.)

29. A brief history of human rights, The Cyrus Cylinder (539 B.C.)

30. Ibid.

31. Ibid.

32. The Constitution of the United States of America (1787) and Bill of Rights (1791)

33. The First Geneva Convention (1864)

34. The Universal Declaration of Human Rights (1948)

35. 1976 AIR 1207

36. AIR 1980 S.C. 1535

37. SCC 1981 S.C. (1) 627

38. AIR 1978 S.C. 1548

39. AIR 1978 S.C. 1514

40. Dr. Kalpana Bharadwaj, Human rights of prisoner’s under Indian constitution, ISSN-0974-2832,Vol. II, Issue-6 (Feb.09-April.09)

Received on 11.01.2014 Modified on 20.02.2014

Int. J. Rev. & Res. Social Sci. 2(1): Jan. – Mar. 2014; Page 34-37