PRISONERS’ PRIVILEGE AND THE RIGHT TO WRITE

This article has been authored by Neelanshi Gupta, a first year student at National Law University, Delhi.

“Every Saint Has A Past; Every Sinner Has A Future”

– Oscar Wilde

Introduction

Prisoner class has always been an exploited and downtrodden category of individuals, their rights, privileges, freedoms, and liberties are taken away from them as soon they are sentenced to prison. They are isolated from the society so that they do not disrupt public order. However, what the judiciary or the government does not focus on is the rehabilitation of these prisoners who fail to adjust back to the normal life, which they are thrown into when they get out of prison. However, a much important topic that is kept out of the discussion is life inside the prison, which is undoubtedly hard and brutal; living without any comforts and luxuries does take a massive toll on the prisoner’s mental health and sanity. Nevertheless, a person sentenced to prison relies on their family and friends for support. But rather than this being a right to all prisoners, it is treated as a privilege that can be taken away from them at any point for the most absurd reasons. The article explores the prisoners’ “privileges” especially focusing on their “privilege” to write and communicate to the outside world.

The International Context

In the International setting, prisoner rights come under the International Human Rights law. For this specific purpose, many major treaties and charters have been brought forward -

1. UN Charter: The General Assembly on 14 December 1990 adopted the Basic Principles for The Treatment of Prisoners. This document contains fundamental rules and principles on how a prisoner should be treated without any discrimination on the basis of sex, race, colour, language, religion, political, national, social origin, property, birth, or other status.

2. Universal Declaration of Human Rights: This document lays out certain core concepts of justice administration. The following are some of its provisions: No one should be tortured or subjected to inhuman or degrading treatment or punishment. Every individual has the right to life, liberty, and personal protection. No one shall be arbitrarily arrested, detained, or exiled. Any person charged with a criminal offence has the right to be presumed innocent unless proven guilty in a jury trial and given all the protections he needs to defend himself.

3. The International Covenants on Civil and Political Rights, 1966 (“ICCPR”): The ICCPR is one of the most significant treaty for the defence of prisoners’ rights. The covenants contain the following provisions: Article 7 provides that no one shall be subjected to cruel, inhuman, or degrading treatment or punishments. Everyone has the right to personal liberty and protection. No one shall be detained or arrested arbitrarily.

4. Core UN Conventions and specific instruments: This includes Standard Minimum Rules for The Treatment of Prisoners. It contains principles such as equality which must prevail regardless of colour, gender, race, etc. Both men and women prisoners should have dignity and should be housed in separate institutions. The young/juvenile prisoners should be kept away from other adult prisoners, and the same should be followed for criminal offenders and civil offenders, etc.

However, one of the important rights aside from dignity and life that is ignored or rather forgotten as fundamental to the prisoners is the right to write or communicate to the outside world. This is the only way to retain a certain semblance of the life they had and the people they had to leave behind. The right to write is more often than not contingent on specific acts like good behaviour and fulfillment of duties which are ambiguous terms and are interpreted by superior authorities in the Prison administration. Thus, making it a right that is determined on arbitrary terms and as a result can often be biased and discriminating.

The Indian Context

The Indian prisons too have not escaped the infamy and stigma attached with prisons all over the world. The contingency of exercise of rights lies on arbitrary and vague interpretations, without any safeguards in case prisoners’ rights are breached. As Prison administration is a state subject under the State List of the Seventh Schedule, there exists no uniform legislation to govern each and every prison in the same manner, but rather it depends on the different state manuals and acts giving rise to haphazard management of the prisons, affecting the rights of prisoners.

Right or Privilege?

According to the British-era Prisons Act, 1894 which is common to some states of India who have adopted it albeit, in differing forms, there is no specific right provided to prisoners as the right to write or communicate to the outside world. The various jail manuals of respective states for example, the jail manual of Maharashtra provides for the prisoners a right to write, but only 2 letters per month which is subject to censorship by the Superintendent who may exercise their authority arbitrarily and capriciously. This facility is subject to good behaviour and can be revoked by the superintendent. As a result, writing, even if confined to writing letters to family and friends, is a luxury and a privilege, not a right. The Mulla Committee report of 1983 recommended that there should be no upper-limit on the number of letters received or sent by inmates at their own cost. A specific guideline for censorship should be formulated. This was received positively by certain states like Delhi, who made the necessary changes albeit without removing the clause of censorship by the Superintendent. According to the report, The Mulla Committee also recommended that the Right to Communication should have a separate provision to protect the prisoners from exploitation. It would include the right to communicate with the outside world, the right to periodic interviews, and the right to obtain information about the outside world through media. All the suggestions have not yet been accepted by the Centre. The present Model Prison Manual, 2016 still contains provisions where the Superintendent can take away the prisoner’s privilege to write if the material is inappropriate or objectionable, or if the communication is found to be harmful to the prisoner's rehabilitation, or for reasons of protection and discipline, or during times of emergency. Therefore, letter writing is not a right but a privilege which is subjected to absurd and ambiguous censorship which unfortunately cannot be appealed.

Courts Opinion on Right to Write

In State of Maharashtra v Prabhakar Pandurang, the Supreme Court held that a detenu continues to enjoy the same fundamental rights as a citizen has and deemed the act of restricting the detenu’s writing from getting published as a violation of his rights. In Francis Coralie v Delhi Administration, the Bench concluded that right to life as under Article 21 of the Indian Constitution also included “facilities for reading, writing, expressing oneself in diverse forms…” In the case of Charles Sobraj through Marie Andre’o vs. The Superintendent, Central Jail, Tihar, New Delhi the Supreme Court Justice Krishna Aiyer held, “imprisonment does not spell farewell to fundamental rights, although, by a realistic re-appraisal, Courts will refuse to recognize the full panoply of Part III enjoyed by a free citizen”. He further held that imprisonment of a prisoner is not merely retribution or deterrence but also rehabilitation. Also, in yet another landmark case, Madhukar Bhagwan Jambhale v State of Maharashtra & Others, rules pertaining to undue and unnecessary censorship conducted by prison administration were struck down on the contention that they were unjust and unreasonable. These are just a few of the many cases in which the right to write of prisoners was upheld. The courts have in many instances recognized that giving prison administration the authority to censor and restrict letter writing has a deteriorating effect on the prisoners and affects their chances of rehabilitation in the future, but nonetheless, the prison administration and state authorities tend to follow the same narrow and strict approach as written in their jail manuals.

Conclusion

Writings by prisoners not only help them keep in touch with their loved ones and maintain a semblance of normal life but also has intense potential to bring about prison reforms. This incites change in prison administration which can eventually make prison life a tad bit prisoner-friendly. Prison administration superiors try to suppress prisoners’ voices by censoring their writings and thus, keeping the society in dark about the inside happenings. Nevertheless, prisoner’s writings about certain violations and conditions of prisons has ushered a movement through which committee reports have originated and landmark judgments are delivered to support and uphold their fundamental rights. These writings in the form of collection of letters, poems, and books tend to bring about social consciousness amongst the general populace which otherwise remains oblivious to this kind of life. Prisoners use writing to connect to their loved ones and lawyers, to express their frustration with their conditions, to request prison facilities and to express their feelings and experiences while incarcerated. Prisoners write to express themselves in an environment where no one would listen or speak to them and to cope up with the desolate life within jails. Why should they be denied the right to write? Although the Supreme Court has confirmed in many rulings that prisoners have a similar right to freedom of speech as any other free person, prison administrators have generally ignored these rulings. This is something that needs to change immediately not only for the prisoners’ life and liberty but also so that the society moves ahead with strong empathetic values.