Quick answer
Yes. A lawful conviction allows the State to take away a prisoner's liberty in the way the sentence and the law permit, but it does not take away his human dignity or the rights that imprisonment does not need to restrict. Article 1 of the UDHR says all human beings are "born free and equal in dignity and rights", and Article 10(1) of the ICCPR requires every person deprived of liberty to be treated with humanity and respect for that dignity. In India, the Supreme Court has held that convicts are not, by mere reason of conviction, denuded (stripped) of all their fundamental rights.
The law
International standards
- UDHR, 1948, Article 1: equal dignity and rights belong to all human beings, because they are human, not because of good conduct.
- UDHR, Article 5 and ICCPR, Article 7: no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
- ICCPR, 1966, Article 10: all persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person (Article 10(1)), and the prison system must include treatment of prisoners whose essential aim is their reformation and social rehabilitation (Article 10(3)).
- Vienna Declaration and Programme of Action, 1993, Part I, paragraph 5: all human rights are "universal, indivisible and interdependent and interrelated". Universal means they belong to everyone, including prisoners. Interdependent means one right often protects another, for example the right to health care in prison protects the right to life.
Indian position
D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh, Supreme Court of India, 9 September 1974 (AIR 1974 SC 2092), three judges. Held: convicts are not, by mere reason of the conviction, denuded of all the fundamental rights they otherwise possess. Imprisonment takes away freedoms such as moving freely throughout India or practising a profession, but the prisoner keeps other rights, including the protection of Article 21 that he cannot be deprived of life or personal liberty except according to procedure established by law.
A Constitution Bench built on this in Sunil Batra v. Delhi Administration (Supreme Court, 1978). It rejected the "hands-off" approach to prisons and held that fundamental rights do not leave a person when he enters prison, although they may shrink as imprisonment requires; it also stopped prison officials from keeping convicts whose death sentences were still under appeal in solitary cells.
Human rights also place a duty on the State to protect prisoners against abuse by others, such as violence by fellow inmates, and not merely to stop its own officers from abusing them.
What a sentence can and cannot do
| A lawful sentence may restrict | A conviction never removes |
|---|---|
| Freedom of movement and residence | Protection against torture and cruel, inhuman or degrading treatment |
| Practising a profession while in prison | Treatment with humanity and respect for dignity |
| Liberty, for the period and in the manner fixed by law | Protection of Article 21: no deprivation of life or liberty except by procedure established by law |
Example
Armaan is lawfully convicted and sent to prison. He cannot leave the prison or run his business from his cell, because those restrictions follow from the sentence. But the jail staff cannot beat him, deny him necessary medical treatment as a form of punishment, or treat him as less than human. If they do, Armaan can approach a court, because his remaining rights survive the conviction.
Current-law note
Indian criminal law also punishes custodial abuse. Section 120 B.N.S. punishes voluntarily causing hurt or grievous hurt to extort a confession or information (old law: Sections 330 and 331 IPC); its first illustration is a police officer who tortures a person to make him confess. Under Section 22 B.S.A. (old law: Section 24 of the Indian Evidence Act), a confession caused by inducement, threat, coercion or promise from a person in authority is irrelevant in a criminal proceeding. For a wider overview of the subject, see Human Rights Law: Complete Notes.
Exam point
Punishment may lawfully restrict particular rights, but conviction never removes human dignity: convicts are not, by mere reason of conviction, denuded of all fundamental rights (D. Bhuvan Mohan Patnaik, 1974).
Sources and further reading
- Universal Declaration of Human Rights, 1948, United Nations
- International Covenant on Civil and Political Rights, 1966 (certified text), UN Treaty Collection
- Vienna Declaration and Programme of Action, 1993 (A/CONF.157/23), UN Digital Library
- D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh (1974), Indian Kanoon
- B.N.S., 2023 (Section 120), Gazette of India
- B.S.A., 2023 (Section 22), Gazette of India
