CHAPTER -1

HUMAN RIGHTS : A THEORETICAL PERSPECTIVE

The notion of human rights is the most important one. It has

gained global acknowledgement in the contemporary society. It is the

most precious legacy of classical and contemporary human thought and

has sought the attention of the people worldwide. While there is an

increasingly widespread concern for universal respect and observance

of human rights, gross violation of norms continue unabated in almost

all parts of the world. Human dignity as the essence of the notion of

human rights remains unchanged. It will continue to be so as long as

people suffer from disease, hunger, lack of opportunities and denial of

the most basic economic, social, political and civil rights. Thus, the

challenge of violation of human rights faces the mankind in its stark

nakedness. The challenge is global and embraces the whole mankind.

MEANING AND DEFINITION

Although volumes have been written about human rights since

ages, yet it is hard to define the term as it is a dynamic concept and

endeavours to adopt itself to the needs of the day. It is for this reason

that understanding and definition of the term depend heavily on the

opinions and conditions prevailing in the given society at a given time.

Since the socio-economic environment with which the question of

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and content of human rights. It is because of this that it becomes

difficult to define this concept in absolute terms.

Attempts have been made to comprehend the term despite all the

complications. To put it simply, “human rights constitute those very

rights which one has precisely because of being a human.” Human

rights are defined as those rights, which every human being is entitled

to enjoy by virtue of being a member of the human species.

“Human rights" in the words of R.J. Vincent, “are the rights that

everyone has by virtue of his very humanity. They are grounded in our

appeal to human nature.”1 Writing in the same vein, David Selby says

‘Human rights pertain to all persons and are possessed by everybody in

the world because they are human beings, they are not earned, bought

or inherited, nor are they created by any contractual undertaking.”2 Thus

it is clear that above definitions focus mainly on human dignity and the

existence of a good society whereas Scoff Davidson offers relatively

comprehensive definition on the subject. According to him, “The

concept of human rights is closely connected with the protection of

individuals from the exercise of state, government or authority in certain

areas of their lives: it is also directed towards the creation of societal

conditions by the state in which individuals are to develop their fullest

potential."3

The Universal Declaration of Human Rights, adopted by the

General Assembly of the United Nations on 10 December, 1948 in its

 3

preamble has proclaimed that, “The Universal Declaration of Human

Rights is a common standard of achievements for all people of all

nations"4

In India, human rights have been defined in the Protection of

Human Rights Act of 1993. According to the Act, Human Rights means

the rights relating to life, liberty, equality and dignity of the individual

guaranteed by the constitution or embodied in the international

covenants and enforceable by courts in India. The National Human

Rights Commission vide its Annual Report of 1993-94 has

recommended to the Indian Government that this definition should be

amended and should read “Human Rights means the right relating to

life, liberty, equality and dignity of the individual guaranteed by the

constitution or embodied in the international covenants and protocols to

which India is a party”5

From the above definitions it is pretty clear that human rights

whether recognized or not belong to all human beings. These are the

rights of an individual solely by virtue of being human irrespective of any

other consideration.

Historical Development of Human Rights

The expression “human rights’ came into use during World War II

and the establishment of the United Nations in 1945. However, the idea

of human rights is much older. Infact, it goes back to ancient Greece

 4

and Rome where it was closely linked with the pre-modem natural law

doctrine of Greek Stoicism6.

The doctrine of natural rights rests on a belief in “Nature", as the

original creating force, which gave to every man the power of finding by

reason the right principles on which to organize his life. Natural rights

refer to some conditions, situations or conduct that is right, as opposed

to being neutral or wrong for human beings. Even during the times of

Plato and Socrates, this idea was linked to the kindred notions of

natural law and political idealism. On the basis of these ideas, it was

later argued that above and beyond the real world of the laws and rules

promulgated by kings and emperors there existed certain immutable

and natural laws to which all human beings are entitled and by which

rulers should be judged7.

In the medieval period, which stretches from 13th century to the

Peace of Westphalia (1648), encompassing the period of Renaissance

and the decline of feudalism, certain basic changes in the beliefs and

practices were witnessed because the people felt the idea of human

rights as general social need and reality. It was during this period when

resistance to religious intolerance and political-economic bondage

began and the real foundation of human rights was truly laid. The

Magna Carta (1215), the Petition of Rights (1628), and the English Bill

of Rights (1689) were proofs of increasingly popular view that hum^n

beings are endowed with certain eternal and inalienable rights.8

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It was only in 17th and 18th centuries that modernist conception of

natural law was conceived. During this period, there were many

scientific and intellectual achievements. The astronomical discoveries of

Galileo and Newton, the materialism of Hobbes, the rationalism of

Rene, Descartes and G.W. Leibniz, the pantheism of Spinoza, the

empiricism of Francis Bacon and John Locke-encouraged a belief in

natural law and universal order.

In 18th century, the so called age of enlightenment, a growing

confidence in human reason and in the perfectibility of human affairs led

to its more comprehensive expression in the writings of English

philosopher John Locke and the works of Montesquieu, Voltaire

Rousseau. John Locke, the father of liberalism argued in detail, mainly

in writings associated with the Glorious Revolution (1688), that certain

rights like right to life, liberty and property self-evidently pertain to

individuals as human beings because they even existed in the “state of

nature’ that is, before humankind entered into civil society. He further

argued that while entering into civil society through contact humankind

surrendered to the state only the right to enforce these natural rights

and not the rights themselves. He also cautioned that if state failed to
protect these rights people also have a right to revolt against state.9

The teachings of these liberal thinkers had a profound influence

on the western world. Togetherwith the practical example of England’s

revolution of 1688 and the resulting Bill of Rights, the liberal, intellectuaf
 6

ferment had great influence on the western world. The American

Declaration of Independence (1776) stated “We hold these truths to be

self-evident that all men are created equal, that they are endowed by

(their) creator with certain inalienable rights; that among these are Life,

Liberty and the Pursuit of Happiness’10 Similarly, the French Declaration

of the Rights of Men (1789) emphasized that “men are bom and remain

free and equal in rights,' which are “Liberty, Property, Safety and

Resistance to Oppression.” It defined 'liberty* so as to include the right

to free speech, freedom of association, religious freedom and freedom

from arbitrary arrest and confinement Another factor, which can be

attributed to the development of human rights, was indeed the failure of

rulers to respect the principle of freedom and equality. In the words of

Maurice Cranston, it was in feet political absoluteness, which prompted

men to claim their rights, which were denied to them.11

The idea of human rights still remained controversial due to its

abstractness. It came under severe criticism both from the

contemporary liberal and radical circles. The conservatives like Edmund

Burke and David Hume in England started questioning the very basis of

the doctrine of Natural Rights. They were of the opinion that we can

never discover the nature of man, and thus we can never identify

human rights. They further condemned the doctrine out of fear that

public affirmation of natural rights would lead to social upheaval. They

 7

criticized the Declaration of Human Rights of men as “monstrous fiction”

of human equality.

Jeremy Bentham, the founder of utilitarianism asserted that, “right

is the child of law”, from real laws come real rights but imaginary laws

from law of nature, come imaginary rights.” He goes on to the extent of

calling it (natural rights) as ‘simply, nonsense, natural and

imprescriptibly rights, rhetorical nonsense, nonsense upon stills.’12 This

attack on natural law and natural rights intensified during 19th and early

20th centuries by philosophers like J.S. Mill, Friedrich, Karl Von Savigny,

Sir Henry Maine and John Austin. So intense was the attack on natural

rights theory that there was hardly any defence for it to be the real rights

of men till the First World War.

Despite all these assaults the notion of human rights manifested

itself in one or the other form. But it was not until the rise and fall of

Nazism in Germany that the real meaning was imparted to the ideal of

human rights.

Human rights were further developed in the international sphere

with the establishment of the League of Nations, after the First World

War. The League Covenant made an indirect reference to the welfare of

the people governed under the mandate. Article 22 (1) reads “that the

well-being and development of such people form a sacred trust of

civilization” likewise Article 22 (5) made responsible to the mandatory

state to maintain such conditions in the territory as will guarantee

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"freedom of conscience and religion” and “the prohibition of abuses

such as slave trade” etc. The contribution of the International Labour

Organization under the aegis of the League was equally noteworthy in

creating an atmosphere of international involvement in securing fair and

humane conditions of labourers.

The honors and worst kind of brutalization of human rights in the

World War-ll led to the birth and recognition of the modem human rights

movement in the international sphere, but it was only after the U.N.

Charter was signed in 1945 that any serious attempt was made to

provide comprehensive protection of all individuals against all forms of

injustice and human rights violations. The Charter of the United Nations,

however, did not define the content of human rights. For this purpose,
the U.N. General Assembly on 10th December 1948 proclaimed the

Universal Declaration of Human Rights. It defined specific rights - civil

and political as well as economic, social and cultural. It spells out the

rights to life, liberty and security of person, to fair trial by due process of

law, to freedom of conscience, thought, expression, association and

privacy, freedom of movement.

Adoption of Declaration was really an event of great significance.

It launched a new era of hopes in the protection and promotion of

human rights across the globe. In this connection, the first documentary

use of the expression took place in Universal Declaration of Human

Rights and two other international covenants - International Covenants

 9

on Civil and Political Rights (ICCPR) and International Covenants on

Economic, Social and Cultural Rights (ICESCR) of 1966 which came

into force in 1976 with the approval of the United Nations.

Thus the “20th century brought a new and changing political

context for human rights and transformed tiie philosophical and

ideological debate about it. In a way, this historical narration

underscores men’s struggle for rights being as old as the history of

mankind itself.

Theories of Human Rights

In order to have a comprehensive understanding of human rights,

a look at the various theories becomes necessary to observe the

shifting of priority of rights during the different phases of history. These

theories provide the basis to determine the precise subject matter upon

which there could be an agreement. An incisive insight into the major

theories of rights is as follows: -

The Theory of Natural Rights

This is the earliest theory of rights. Its origin can be traced back to

the ancient Greeks. According to this theory, rights belong to the man

by nature and thus are self-evident truths. They are considered as

inborn absolute, pre-civil and according to sorpe, they are even pre­

social. They can be asserted anywhere and everywhere. Thomas

Paine, Grotius, Tom Paine and John Locke, to name a few, are the
 10

main exponents of this theory. These theorists derived their ideas about

rights from God, reason or a prior moral assumption. To them, every

individual possesses a unique identity and is expected to account his

actions as per his own conscience.

However, the critics of the natural rights theory argue that rights

are not abstract, absolute, or unidentified phenomenon. Liberty, as they

argue, lives within restraints. So, restraints upon rights create social

conditions where every one has a share to develop his personality and

correspondingly has his obligations to others. Rights and obligations, in

fact, are the two sides of the same coin.

Despite the above shortcomings, the theory of nature! rights

inspired the idea that any kind of unjust, arbitrary or oppressive

treatment to human beings is an assault upon humanity itself. Apart

from this, it also provided the basis, for the English, French and

American revolutions, thereby resulting in the Bill of Rights.

The Legal Theory of Rights

This theory is a reaction against the theory of natural rights.

Advocates of this theory argue that the ideas of natural law and natural

rights are abstract and ridiculous phenomenon. Hence, the existence

and enjoyment of fundamental rights of an individual could be better

maintained and practiced by the state rather than by the individual

himself. Thomas Hobbes, John Austin and Jeremy Bentham are the
 11

main propounded of this theory. According to them, rights are purely

utilitarian concepts and thus the rule and regulations are necessary for

identification and protection of one’s rights. Towards this end, every

individual has to sacrifice certain rights and freedoms for the general

welfare of the society.

This theory has been severely criticized on the ground that law

alone does not create rights. Rather, it recognizes and protects them.

Customs, traditions and morality also have a basis for rights. However,

the truth in this theory lies in the fact that it enables individuals to

demand certain specific and recognized rights as granted and

guaranteed by the state.

The Anti-utilitarian Theory of Rights

There are yet other theorists who strongly argue that foe

priority of foe well-being of foe majority as stated by the utilitarian is not

foe prime objective of state. Amongst them Dowrkin, Nozic and John

Rawls are the leading ones. They hold the view that foe welfare of foe

majority might lead to detrimental consequences as far as foe welfare of

a particular person or a group of persons is concerned. So there has to

be proper reconciliation between the well being of the majority and

individual well-being for the better enjoyment of social and individual

rights. Today, the demand for right to development on international

foray is perhaps the manifestation of this theory.

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The Legal Realist Theory of Rights:

The Legal Realist Theory of Rights is of recent origin. It

mainly originated in U.S.A. with the expansion of regulatory activities

followed by president Roosevelt’s “New Deal Policy.” A group of jurists

such as Karl Liewellyn, Roscoe Pound and others discussed the point

as to what law does, rather than what law is, in a highly complex and

industrialized society. These theorists did not propound a common

theory of rights. Rather, they considered rights as the end product of

both the interaction of prevailing moral values of the society as well as

foe broad-based international sharing of values. So human rights, as

they argue, are nothing but a manifestation of an on-going process

rather than a theoretical debate. This kind of a new approach to the

concept of rights does away with foe problems relating to foe abstract

nature of foe concept.

However, this theory goes about questioning the existing laws,

their values and foe actions, so far enacted upon foe society. In other

words, it questions the shortcomings and ineffectiveness of the existing

laws but does not prescribe any solution in the form of super-value of a

human being.

THE MARXIST THEORY OF RIGHTS

Rights, according to Marx are simply a bourgeois concept and a

product of bourgeois capitalist society primarily designed to maintain

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and reinforce the predominant position of the ruling class. This theory of

rights is very simple and to a certain extent convincing too. Marx

regards the state as a coercive agency to uphold the particular type of

social organization and law is a tool of the state that perpetuates and

safeguards the interest of the dominant group in the society. He firmly

believes that rights can exist and flourish only in a classless society

where all are equal and no one is an exploiter. Social and economic

rights are, thus, the main concern of this theory.

However, the contribution of Marxist thought to the development

of international concern on economic, social and cultural rights has

been found in the International convenant on Economic, Social and

Cultural Rights (ICESCR) in 1966. This theory, however, does not

indude religion, customs, traditions and mortality as integral

components of human rights.

To sum up, “There is not a single theory which can adequately

explain the origin and nature of rights. Each theory is the product of its

own time and in conformity with the genius of the people with whom the

propounders of the theory were assodated. There is some element of

truth in all these theories. But there is one eternal truth which cannot

be ignored that individual good and sodal good go together. Society is

an organic unit and welfare of the community is built upon the welfare of

the individuals, and both go hand in hand13. Hence, a good theory of

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rights should take into consideration the most conductive variable

essential for the welfare of all members of a society.

CLASSIFICATION OF HUMAN RIGHTS

Human Rights broadly can be classified from two different

perspectives: Firstly, from the perspective of different aspects of human

life, civil, political moral, social, economical; and secondly from the

perspective of the ways of securing them. The human rights can be

classified as under:

Natural Rights

Natural rights are those rights which are considered to be

inherent and integral to human nature. In fact, every individual , by

nature, is given an individual property of his own which cannot be taken

away by any authority. Such rights indude intellectual rights, rights of

the mind and also rights of acting as an individual for his own comfort

and happiness, provided they are not injurious to the natural rights of

others.

Moral Rights

These rights are based on the general principles of fairness and

justice. These are simply aspirations and ideals of the people who daim

for it. Sometimes, people justify these rights on the ground of the role

they perform or the position they occupy in sodety. For example, the

mother of a family might complain that she has the right to be consulted
 15

about what is going on in her family. In this case, she is applying the

principle that parents are entitled to be consulted when family decisions

affect the members. So it is the moral duty of other members to do the

same.

Fundamental Rights

There are certain rights which are more important and basic than

the others. For example, right to life is the most basic of all rights upon

which the enjoyment of other rights depends. Among other basic rights

to be recognized as a person before the law, the right to equal

protection under law, and freedom from illegal arrest or detention.

These rights can never be restricted or taken away by any authority.

That is why, every society has a fundamental duty to protect these at all

times.

Legal Rights

Legal rights are otherwise known as positive rights. These rights

are laid down in law. They are also guaranteed and protected by the law

of the State. Thus, legal rights are uniform and open to all irrespective

of the cdiste, color, race or culture.

Civil and Political Rights

Rights that are granted by government or civil society are called

civil and political rights. These rights provide the basis for the fulfillment
 16

of elementary conditions of the social life. Without them, civilized life is

not possible and they are, therefore, considered very essential for the

free and progressive life of man. Civil and political rights, however,

include the right to the freedom of speech, of assembly the right to

move freely, to hold property and practise trade or profession, and the

right to take part in the government of one’s country.

Economic, Social and Cultural Rights

These are entitlements of the individual vis-a-vis the State, in

order to eradicate social inequality, economic imbalances and to limit

disadvantages caused by nature, age and so on. These rights, however

are bestowed by the State. The State is not bound to meet these

entitlements all at once. It depends upon the economic resources of the

society.

Most of the socialist states recognize these rights as fundamental

rights of the people. Right to equality, right to work, right to have family,

right to privacy, right to information, right to public assistance during old

age and sickness, right to health-care, right to special care during

childhood and during motherhood are some of the examples of these

rights.

The rights mentioned above do not fully serve the purpose in the

sense that rights have tendency to grow with the corresponding

changes in the society. Some of the rights are of recent origin like the
 17

right to development, the right to know and the right to self

determination. There are many controversies regarding the question as

to which are the more important rights. The Vienna Declaration issued

after a conference in which representatives of 171 countries affirmed

that “all human rights are universal, indivisible, inter-dependent and

inter-related14."

HUMAN RIGHTS IN DEVELOPED AND DEVELOPING COUNTRIES

There is no doubt that the issue of human rights is basically

universal in its nature, but it has been manipulated politically by the

developed countries to establish their superiority and domination over

the developing countries. If one goes into the fact of the violations of

these human rights, the developed countries have a big number of

gross violation of these rights. Despite these facts they have been given

clean chits only because of their powerful and commanding position in

the whole world. The case of the U.S.A. best illustrates this point as the

largest number of violations can be attributed to it. Yet the developing

countries are expected to get a certificate of human rights record from

the developed world.

The tendency to link the unrelated issues such as labour

standard, social condition and environment in a very systematic and

deliberate manner goes to the disadvantages of the developing

countries. Ironically the sanction of human rights is further invoked self-

 18

appointed guard of the world organization - the U.S. to pressurise the

developing countries to sign NPT and CTBT, while it and its allies

remain free to secure their strategic objectives.

The fact is that these developed countries need to discipline

themselves first. The U.S. policy of establishing political hegemony over

the developing countries is quite evident from the way it lays down

human rights conditionality for the other countries thereby justifying

control over their economy and polity. The developed countries are

funding to scholars and politicians of developing countries and offer

their services in rationalizing their ideology and promoting their political

and economic interests. Developing countries are being targeted

because the former find in the latter potential market with middle class

population, not only for consumer goods but also for mass media

products. If these facts are any guide, one can speculate on a latent

political objective behind the current fashion of the frequent use of the

term human rights, democracy etc.

Notwithstanding the American agenda, the fact remains that

violation of human rights has become everyday affairs in the developing

countries. Authoritarianism and repressive practices, large scale

corruption, ethnic and communal carnages and the virtual collapse of

any system of accountability have become some of the main features of

the modem state system in the developing countries. Thus, these

countries face greater challenges as they not only have to shield

 19

themselves against any design of the developed countries but also

strive to do away from these evils which have crept into their society

and show great respect for the human rights of their own citizens. This

makes it imperative that they must ensure much greater respect to the

cause of human rights concerning their own people that is the case

today.

HISTORICAL BACKGROUND OF PRISONS AND PRISONERS

Crime, repression and injustice have always been parts of the

,, human condition. So are the prisons wherein the persons condemned

for their anti-social and unlawful acts are lodged, Traditionally, prisons

and prisoners have been considered as somewhat violated, mysterious

and frightful entities by the society. The history of prisons and its use as

a place of detention for the condemned persons is not of recent origin

but is very old. The outlawed inmate of a prison, till the beginning of the

century was never considered fit to daim any right enjoyed by law-

abiding person of the society. He was put in jail only to realize his folly

and to pay for it through his sufferings15.

Towards the middle of sixteenth century a period of ‘experiment

with imprisonment" as a form of punishment for certain types of

offenders mostly for juveniles, sturdy beggars, vagabonds and

prostitutes was initiated in Britain16. The London ‘Bride Well’, the

Amusturdom Rasphius and Sphinhuis founded respectively in 1557,

 20

1595 and 1597; Francis Florentine Hospice established about 1677; the

reformatories for boys and women in St Michael’s Hospice in Rome

founded in 1704 and in 1735. While on the one hand, where these

institutions were founded, on the other hand, there was a strong

reaction of the subjects against these experiments. The period of

experimentation lasted up to the close of the eighteenth century when

imprisonment was accepted universally as a substitute for most of the

corporal or capital penalities.17

One of the remarkable contribution to the reformation of the!

British prison systems was the Gladstone Committee which was

appointed to make a "searching inquiry” into the main features of prison

life. The report of the Gladstone Committee then was considered ‘the

most important and far reaching document in prison history. The report

pointed out frankly that undue stress had been laid upon the deterrent

aim of imprisonment and too little stress upon the reformation of the

prisoners subjected to prison confinement. The Committee

recommended that the prisoners should not be merely taken as

condemned prisoners but the system should be so designed as to

capable of being adopted to the special cases of individual prisoners.18

It was also said by the Committee that the Committee of the House of

Lords wrongly concluded “that the system generally known as the

separate system must now be accepted as the foundation of prison

discipline and that its rigid maintenance is vital principle". The principle
 21

that prisons should endure “hard labour, hard fare and hard bed" are no
more useful rather outdated concepts.19

The report of the Committee was accepted by the Home

Secretary as a fresh basis of prison administration. It was proposed that

prison treatment should be effectually designed to maintain, stimulate,

or awaken the higher susceptibilities of prisoners and turn them out of

prison better men and women both physically and normally than when
they came in.20 On the recommendations of the Gladstone Committee,

the Prison Act, 1898 was passed which forms the legal basis of the

present regime in England. The five basic principles on which the

existing prison system in England is based are

i) that for all prisoners with sentences of suitable length, the

prison regime should be one constructive training, moral,

mental and vocational;

ii) that such training can be fully carried out only in

homogeneous establishments set aside for the purpose;

iii) that the special training prisons need not, for all prisoners,

provide the security of normal prison buildings:

iv) that the services of the community outside the prison

should be enlisted to help in the training at every

practicable point; and

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v) that this continuing responsibility of society should be

maintained after his discharge by effective aid towards

social rehabilitation.21

Macaulay, for the first time drew attention of the Government of

India to the terrible and inhuman conditions existing in the Indian Jails.

On his suggestion, a committee was appointed in 1836 to inquire into

the affairs of prison administration and prison conditions. This was the

first committee which considered and inquired into the existing

conditions of the Indian prisons and submitted its report in 1838

criticizing severely (the administration of prison) the “laxity of discipline,

corruption and the system of employing the prisoners in extra-mural

labour on public roads.*22 Unfortunately, the committee in its

recommendations deliberately rejected “all reforming influences such as

moral and religious teaching, education or any system of rewards for

good conduct.*23 The report of the committee, it appears, was

influenced by the contemporary ideas of deterrent aspect of

punishment which were existing in England. However, one of the factors

which goes in favour of this committee is, that the process of prison

reforms started in India with the recommendations of this committee.

For many years, after the establishment of this committee, no

marked progress was made in the field of prison reforms and concept of

human treatment of prisoners. But, in 1894 the Prisons Act was passed

which provided the legal basis for the existing prison system in India. It
 23

is observed that, in spite of certain useful and reasonable provisions,24

the Act mainly incorporated the contemporary ideas of English System

of Prison Administration.

However, there was no radical change in the jail conditions and

the treatment of prisoners inside the jail. It was never thought that the

prisoners had to come outside and to live in the society from which

they were expelled due to their unlawful activities. However, the idea of

reformative aspect of punishment was given due consideration after the

World War II. It was due to the fact of the widespread tortures and

tyrannies committed on the innocent subjects during the World War.

This forced the States to reconsider the concept of humanity and a

movement was initiated at international level for the human treatment of

subjects and to protect their inherent rights against the might of the

State.

HUMAN RIGHTS MOVEMENT AND ITS EFFECTS ON PRISONERS

In 1948, a movement was started in the United Nations

Organisation in the form of Universal Declaration of Human Rights.25

This document provided certain basic principles of law which should be

applied by the Municipal Courts in the process of administration of

justice. These principles embodied certain remarkable concepts like

equality of treatment, right to life, liberty and security of person and

freedom from torture, cruel, inhuman or degrading treatment.26
 24

Amnesty-International contributed to the human rights movement

by prescribing certain Standard Minimum Rules for the treatment of

prisoners.27 This document contains a number of useful provisions for

the human treatment of prisoners. It provides for the segregation of

prisoners on the basis of age, sex, nature of punishment and the gravity

of the offence committed. The rules also condemned the punishment

like solitary confinement, reduction in diet and other heavy deprivative

measures used by the prison authorities as a punishment for prison

offences. The rules also speak of social rehabilitation and after-release

programme of the prisoners.28

The European Convention29 on Human Rights is one of the major

documents which gave fire to the human rights movement Like other

documents discussed above it also provided for the human treatment of

prisoners and prescribes certain important safeguards against the

arbitrary and fanciful acts of the State. The major achievement of this

document is that it provided a machinery for the protection of the human

rights in the form of Human Rights Commission, where the subjects of

foe member countries can ask for foe remedies for foe violation of foe

various articles of this Convention which guarantees certain rights or

protections to them.30

Another important document which was adopted by foe U.N.O. is

Declaration on Protection from Torture, 1975. This document also

pleaded for the human treatment of subjects and provides many

 25

protections against the torture, inhuman, cruel or degrading treatment or

punishment to them.

The impact of these conventions and declarations is that the

courts have started recognising the importance of reformative aspects

of punishment and considering the prisoners as ‘persons’ who have to

go outside and live in the society as a reformed person. Today the

courts are busy in providing certain minimum facilities in the form of

inherent rights of the individuals and pleading for foe human treatment

and social rehabilitation of foe prisoners.31

HUMAN RIGHTS VIOLATION

Human rights are meant for everyone in society. But many

sections are still deprived of these rights. Every state invariably violates

human rights in one way or foe other but in certain cases foe violation of

human rights has become so pervasive that it is capable of alienating

that country from the world community. The grossest violations are

undoubtedly associated with foe numerous regions where civil wars

have deprived millions of life, home, safety and livelihood and where

lately we have seen the resurgence of acts of genocide which have

appalled the world. The over 24 million refugees and displaced persons

seeking safety for survival are mainly victims of such violence. The

existence of oppressive regimes founded not on democratic principles

but which maintain their power by widespread violations of civil and

 26

political rights, although less numerous today than a decade ago,

remains another crucial area where human rights are routinely and

grossly violated. The reality of increasing extremes of wealth and

property as noted above and the existence of approximately 1.3 billion

people who live in absolute poverty reminds us that absolute poverty is

in itself a violation of human rights. It includes rights such as the right to

work, to adequate housing, to a decent standard of living etc.

According to Albert Einstein the main factors responsible for this

utter violation of human rights is politics. He observes ‘In politics not

only are leaders lacking, but the independence of spirit and the sense of

justice of the citizen have to great extent declined. The democratic

parliamentarian regime, which is based on such independence, has in

many places been shaken, dictatorships have sprung up and are

tolerated, because men’s sense of the dignity and the rights of the

individual is no longer strong enough. In two weeks the sheep like

masses of any country can be worked up by the newspaper into such a

state of excited fury that men are prepared to put on uniform and kill

and be killed for the sake of sordid ends of a few interested parties.”32

This violation of rights becomes all the more alarming in the case

of women. In the chequered history of mankind, one finds that different

and disparate cultures, however distant they may be in time and space,

have at least one thing in common and feat is the contempt for women.

According to Chinese philosopher Confusicious the subordination of

 27

women to men was one’ of the supreme principles of government

Likewise, Aristole opinioned that Woman may be said to be an inferior

man, Aristotle. The German Philosopher Nietzsche said when you got

to meet a woman take your whip along. The Hindu sage Manu

condemned women to eternal bondage whereas the followers of

Prophet Mohammad placed the fair sex behind the purdah. Under the

common law, women were treated as chattels. All that is written above

can be succinctly put in the words of Manifesto of the Woman’s Rights

Convention, the history of mankind is a history of repeated injuries and

usurpation on the part of man towards women, having in direct object

the establishment of a tyranny over her.

This unequal status of women being offensive to human dignity

and also violative of human rights has emerged today as fundamental

crisis in human development the world over. Human rights are derived

from the dignity and worth inherent in the human person. These human

rights and fundamental freedoms have been reiterated by the Universal

Declaration of Human Rights. Democracy, development, respect for

human rights and fundamental freedom are inter dependent and have

mutual reinforcement. The human rights for women including girl child

are therefore inalienable, integral and indivisible part of Universal

Human Rights. The full development of personality, fundamental

freedom and equal participation by women in political, social, economic

and cultural scenario are concomitants for national development, social

 28

and family stability and growth - culturally, socially and economically.

All forms of discrimination on grounds of gender, are thus violative of

fundamental freedom and human rights.

Gender injustice taking the shape of crimes against women has

escalated all over the world and India is no exception to this. Despite

the fact that the Indian mythology placed women on a very high

pedestal, deterioration in this glorious status suffered a socio-cultural

setback resulting in loss of their freedom and decline in their

personality. Despite the social reform movement in the 19,h century

arousing considerable awakening, constitutional and legal provisions

aimed at preventing discrimination, positive judicial trends, welfare

schemes and activism of voluntary sector, women continue to suffer

from increasing tide of violence both in and outside homes. According to

the data compiled by the National Commission for Women, a rape is

committed every 54 minutes, a dowry death every 92 minutes

molestation every 26 minutes and an act of cruelty every 33 minutes.23

If this is the fate of women who lives in society one can very well

imagine the kind of life she is forced to live if she happens to be a

prisoner. This study is an attempt to bring forth all the atrocities and

violations done to her not only because she is a prisoner but because of

her being a woman also. The purpose of this study is to sensitise

people who are responsible for it, so that something can be done to
 29

ameliorate the miserable condition of the women prisoners as they are

also human beings having their own dignity and pride.

REFERENCE

1. R.J. Vincent "National Human Rights Commission of India" by

A.K. Palai P.9.

2. Ibid. 9.

3. Ibid. 9.

4. Air Comde. R.V. Kumar, Capt. B.P. Sharma : “Human Rights and

the Indian Armed Forces". Sterling Publisher Private Limited P.2.

5. Ibid. 2.

6. Richard Pierre Claude and H. Weston Bums (ed) Human Rights

in the World Community. Issue and Actions Philadelphia

University of Pennsylvania Press 1989.

7. Alam Aftab, Human Rights in India: Issue and Challenges, P. 14,

Raj Publication.

8. Ibid. 14.

9. Ibid. 15.

10. Ibid. 16.

11. Ibid. 16.

12. Ibid. 17.

13. A.C. Kapur, Principles of Political Science, S. Chand Company

(P) Ltd., New Delhi-1987 P. 210.

 30

14. Supta Dass, Arjun Dev and Indira Arjun Dev, Human Rights : A

Source Book NCERT Publication, 1996, Introduction part.

15. Naresh Kumar, Constitutional Rights of Prisoners. Mittal

Publications 18.

16. Encylopaedia of Social Science P. 57.

17. Ibid. 57

18 Fox L.W. The Modem English Prison, 1934, P.22.

19. Hinde, R.S.E., The British Panel System, 59 (1951).

20. Prision and Bostals, Home Office Publication, P. 9.

21. Ibid. 11.

22. Report of the Indian Jail Committee, 29 (1919)

23. Ibid 30

24. [Link]. 31,40,41

25. Naresh Kumar. P 9.

26. Ibid.

27. Ibid., 11

28. Ibid.

29. Ibid., 17

30. Ibid, No. 22.

31. Albert Einstein. The Dialectics & Dynamics of Human Rights in

India (Yesterday, Today and Tomorrow by V.R. Krishna Iyer P.

41.

32. Manifesto of the Women’s Rights convention.

 31

33. Dr. Mamta Rao, “Offences Against Women” Cf. After Alam,

Human Rights in India: Raj Publication.