PRISONER’S RIGHTS: ACCESS TO JUSTICE

(Assignment towards the fulfillment of the Varied Assessment in the Subject of Legal
Language & Art of Advocacy)

SUBMITTED TO SUBMITTED BY
DR. RASHMI MATHUR RUTH SARAH ABRAHAM
ASSISTANT PROFESSOR. ROLL NO: 2223
FACULTY OF LAW B.B.A. LL.B. (HONS.)
NATIONAL LAW UNIVERSITY, JODHPUR

NATIONAL LAW UNIVERSITY, JODHPUR

WINTER SESSION
(JANUARY – APRIL, 2024)
 PRISONER’S RIGHTS: ACCESS TO JUSTICE
“In our world prisons are still laboratories of torture, warehouses in which human
commodities are sadistically kept and where spectrums of inmates range from drift-wood
juveniles to heroic dissenters.”1 -Justice
V.R. Krishna Iyer
One of the most poignant realities often overlooked in discussions of the rule of law is the
profound impact legal regulations have on the lives of those behind bars. 2 Since time
immemorial, those incarcerated in jails have perpetually been viewed as societal outcasts,
enduring the isolation and stigma imposed upon them by the broader community. What
worsens their situation is the prison conditions themselves, plagued with issues of
overcrowding, security concerns, lack of infrastructure, and legal delays. In light of these
challenges, it's worth considering whether the utilization of prison labour resembles a modern
form of slavery, underscoring the deplorable conditions within prisons and shifting away
from the entire purpose of the prison itself: rehabilitation. Conviction does not diminish one’s
humanity rather every individual,3 by their personhood, inherently retain their fundamental
rights, which are inseparable from them. Prison policies are something that has undergone a
lot of evolution starting from access to free and fair trial to the incorporation of Article 39A.
Upholding Justice: The Imperative of Speedy Trials and the Pursuit of Legal Reform
In Lord James Brice words, “There is no a better test of excellence of a government, than the
efficiency of its judicial system, for nothing more merely touches the welfare and security of
average citizen than his sense that he can rely on the certain and prompt administration of
justice.”4 One of the cardinal principles of the criminal justice system, its “sine qua non,” is
speedy delivery of justice and if justice is not executed speedily, men persuade themselves
that there is no such thing as justice. 5 The extensive backlog of cases and slow-motion
syndrome of carrying out the proceedings of a case have jeopardized the integrity of the legal
system and undermined people’s faith in the judiciary, threatening the very survival of the
system. In a report of the Parliamentary Committee on Home Affairs, it was found that there
is a backlog of over two crore cases pending with most of them pending for as long as 25 to
30 years.6 This entails the violation of the rights of the prisoners, denying them their
fundamental right to a speedy trial and perpetuating their prolonged incarceration without due
process of law. This scenario was highlighted in the landmark case of Hussainaro Khatoon
(1979) where a large number of undertrial prisoners were languishing in jail for more than
half a decade.7 The apex court in the case laid down that speedy trial is an essential part of
any ‘fair and reasonable’ procedure contemplated under Article 21. Gradually, through a
series of cases,8 it became evident that without a fair and expeditious justice system, citizens
began to lose faith in the judiciary.
It is in this response to this that the legislative incorporated the Code of Civil Procedure
(Amendment) Act, 2002 to streamline and expedite the legal process. Through the
amendment, the conceptualization of the idea of evidence via affidavits and the appointment
of a court commissioner were introduced, while also creating a limit to adequately deal with
1
P Diwan and P Diwan, Human Rights and the Law, Deep & Deep Publications, 169 (1996).
2
Justin Driver & Emma Kaufman, The Incoherence of Prison Law, 135 HARV. L. REV. 515, 521 (2021).
3
DBM Patnaik v. State of Andhra Pradesh, AIR 1974 SC 2092.
4
Lord James Bryce (In Modern Democracies).
5
James Antony, “Short Studies on great Subject”, “Calvinism” 1818 – 94 (1871).
6
J Venkatesan : Penal Concern Over Backlog in Courts, in : The Hindu, New Delhi, 10th March 2002, p - 7
7
Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, 1979 AIR 1369.
8
Abdul Rehman Antulay V. R.S. Nayak, AIR 1992 SC 1701.
unnecessary adjournments. However, it is evident that despite legislative reforms, there has
been no significant improvement, as indicated by data showing that the average pendency of
cases in a high court is approximately three years and one month. 9 This may be due to the
prioritization of the importance of expediting trials for case resolution, while also
emphasizing the need to avoid rushing or hastening the process, as this could replace one evil
with another.10 But regardless we still need more concerted efforts and comprehensive
reforms to address the systemic issues that continue to impede the timely dispensation of
justice and uphold the integrity of the legal system.
Empowering the Marginalized: The Journey of Free Legal Aid in India
In a nation where a significant portion of the population resides below the poverty threshold,
providing free access to legal assistance is essential for ensuring justice is delivered.
Considering the prolonged litigation period and the financial resource scarcity that exists with
around 70% of Indian citizens, litigation as an avenue is only open to the affluent. In 1952,
shortly after India gained independence, the government began to address the issue of legal
aid for the poor understanding the gravity of the situation. However, it took another three
decades of PILs11 and protests for the concept to materialize into tangible action.
Justice Krishna Iyer has played a pivotal role in advocating for the concept of legal aid within
the Indian legal system. In his report titled ‘Professional Justice to the Poor’, he has made
significant contributions by emphasizing the importance of recognizing the needs of the poor
and ensuring their access to legal aid services. 12 The reason behind the problem was implored
through various committees established by the legislature who recognized that it was the
colonial hangover in the Indian legal system hindering its realization of its full potential and
scope.13 Much of our law have been shaped by the British for their convenience, therefore it
remains largely insensitive to the socio-economic issues of the populace. This was noted in
the 14th Law Commission Report which highlighted that laws lacking equality of opportunity
in seeking justice have little protective value. Despite being initiated under the term "We the
people of India," the system had deviated from its original course, prioritizing procedural
formalities over the needs of the people, thus revealing a stark reality: access to justice, the
cornerstone of democracy and fairness, remaining elusive for the masses.
The immediate response of the legislature to these concerns was the 42 nd Amendment Act
which incorporated Article 39A into the constitution which provided for Equal justice and
free legal aid.14 When examining the evolution of Article 39A, it becomes evident that its
incorporation was the result of a protracted process, largely facilitated by judicial activism.
The integration of Article 39A created a framework that enables lawyers to bring light to the
dark corners by gaining access to prisons15 and advocating for the rights of those behind bars.
One step further in their action was the executive enactment of the Legal Services Authorities
Act, 1987 which still lies as a significant milestone in the provision of free legal aid in India.
This comprehensive legislation not only established legal service authorities at the national
9
Harish Narasappa, The long, expensive road to justice, INDIA TODAY (2 May, 2016, 19:59 IST),
[Link]
long-expensive-road-to-justice-828810-2016-04-27
10
H.R. Khanna, “Judicial Reforms”, 3 SSC 1979 (J) p – 25.
11
Madhav Hayawadanrao Hoskot v. State of Maharashtra, 1978 AIR 1548 ; Hussainara Khatoon & Ors vs
Home Secretary, State Of Bihar, 1979 AIR 1369.
12
Justice Krishna Iyer, Processionals Justice to Poor (1973).
13
Committee on Legal Aid (1973), Committee for Implementing Legal Aid Schemes (1980),
14
INDIA CONST. art. 39A, amended by The Constitution (Forty Second Amendment) Act, 2000.
15
Sharon Dolovich, How Prisoners’ Rights Lawyers Do Vital Work Despite the Courts, 19 U. ST. THOMAS L.J.
443 (2023).
level but also outlined the framework for legal aid services and clinics, ensuring access to
justice for all. Moreover, it facilitated funding and resource allocation specifically targeted at
priority groups, such as women, children, and marginalized communities, thereby addressing
their unique legal needs and promoting equity in the legal system.
But even after three decades of incorporation, the legal aid services are still in its nasal stage
majorly attributed to the bureaucratic red tape. With little to no supervision in the work of
advocates and a perennial shortage of resources, the legal service authority has been facing
significant operational challenges. One of its major pitfalls lies in the appointment of
inexperienced and incompetent advocates as free legal advocates thereby defeating the whole
purpose of legal aid. The prevalence of this crisis is underscored by the fact that a large
majority (74.1%) of death row inmates nationwide, despite being predominantly
impoverished, chose to seek private legal representation during trial proceedings, often
accruing substantial debts in an effort to bypass the legal aid system. 16 Furthermore,
awareness of legal aid is still a challenge that is pertinent with the legal aid system still
unorganized, dispersed, and intermittent.17
Project 39A: Revolutionizing Prisoner Rights and Legal Aid in India
In the prison environment, inherent discrimination persists, particularly evident in the
treatment of death row convicts. Labelled as beyond reformation and rehabilitation due to the
heinous nature of their crimes, they face stigma and hardships both inside and outside prison
walls. This stigma often translates into difficulties in finding adequate legal representation.
Prisons in recent times have become breeding grounds of discrimination wherein rights
available to prisoners from affluent backgrounds are not necessarily afforded to those from
impoverished sections of society.18 One such instance can be seen in the highly controversial
death sentence that was executed on Afzal Guru which highlighted inconsistencies that
reflected basic conflict between an anachronistic legal system and newly emerging political
interests.19 This particular judgment sparked widespread protests throughout the nation
questioning the general efficacy of the justice system in itself, whether it is judicial activism
or judicial abetment.
Even though there exist elaborate legal aid systems formulated from the national to taluka
level the efficiency and effectiveness of the same is questionable, especially towards death
row convicts who opt for private representation despite being economically disadvantaged. It
is in this regard that Project 39-A came as a Messiah for death row convicts. The student-led
initiative has fostered widespread awareness of prisoners' rights and has fundamentally
transformed the landscape of the prison system as a whole. Before the inception of Project
36A there existed a widespread societal ignorance and apathy regarding the plight of
prisoners, particularly those on death row leading to misconceptions and prejudices against
them. But through its Death Penalty Report and extensive field study they have addressed the
glaring absence of empirical research on the death penalty in India. In this regard Project 39A
stands as a beacon in the fight against official cruelty, striving to protect the most vulnerable
from the abuse of power by authorities. The societal dilemma precipitated by Project 36A has
reshaped the legislative framework regarding prisoners' rights.
16
NATIONAL LAW UNIVERSITY DELHI, Death Penalty India Report Summary, P39A, (May 2016),
[Link]
17
Akarshita Singh, Legal Aid in India: current scenario and future challenges, MANUPATRA, Dec 11, 2023,
[Link]
18
Rakesh Kumar, Examining the Rights of Prisoners in India: A Comprehensive Analysis, 5 IJRPR 246, 246
(2024).
19
Sumanta Banerjee, Of Criminals, Martyrs and Innocents, 41 EPW, 5105-5108 (2006).
The culmination of these efforts was reflected in the formulation of the Model Prison Policy
2016, which was influenced by Project 39A's endeavours to increase public awareness and
foster a humane and effective prison policy. The Model Policy entails a new chapter in itself
for legal aid which empowers prisoners to understand their legal standing and fight for their
rights and emphasizes after-care programs recognizing the importance of rehabilitation and
reintegration of prisoners back into society. Moreover, the death penalty report served as a
stark revelation, shedding light on the harsh reality. It highlighted that in 2022, there were
165 death sentences imposed, marking the highest number in over two decades since 2000.
Additionally, almost 98.3% of the death penalty cases were decided by trial courts without
any evidence regarding the mitigating circumstances of the accused or state-led evidence on
the potential for reform.20
In conclusion, the evolution of prisoners' rights, influenced by societal conundrums and
subsequent legislative reforms, marks a significant step towards recognizing the inherent
dignity of all individuals, including those incarcerated. While progress has been made in
shifting the focus towards reformation and rehabilitation rather than anarchical punishments,
there is still a long journey ahead. Rights such as undertrial prisoner voting and conjugal
visitation rights remain in the nascent stage of prisoner rights advocacy, requiring further
exploration and advocacy. However, promising advancements, such as the implementation of
open-air prisons, signify positive strides towards a more humane and rehabilitative approach
to incarceration. Despite the progress made, it is imperative to continue advocating for the
full realization of prisoners' rights and ensure that they are treated with dignity and respect as
fellow humans, not animals. Because behind every prison door lies a vulnerable soul,
deserving of protection and compassion amidst their journey towards redemption.

20
Supra note 16.