“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” ― Nelson Mandela
There are certain questions that arise when considering the lives of prisoners. Some of such questions are like- do prisoners enjoy their rights properly? Are they treated like animals? People have been committing different types of crimes since the creation of the world. Generally, as a consequence of committing a crime, a person is imprisoned. Thus, a prisoner is someone who has his/her liberty taken from him/her against the will. It does not mean that prisoners should be treated like animals. From our country’s current situation, it is apparent that prisoners have been treated less humanely with lower human rights management. This mismanagement has originated from a long-rooted history of mistreatment. At the same time, it is a sad reality that, in Bangladesh, prisoners’ rights are one of the unsung issues. The Government of Bangladesh and the people of our society rarely focuses on the rights of the prisoners.
In our country, three laws provides for the rights and obligations of the prisoners. Those are as follows-
- The Constitution of Bangladesh.
- The Bengal Jail Code, 1864(currently amended as The Prisons Act, 1894).
- The Prisoners Act, 1900.
Under Part III of the Constitution, prisoners’ rights are protected as fundamental rights as a human being. Article 35(5) states, “No person shall be subjected to torture or cruel, inhuman, or degrading punishment or treatment.[i]
Where the rights are guaranteed by the Constitution, it can be said that a prisoner does not lose all the rights upon imprisonment, as he/she is still a human. Prisoners are also entitled to enjoy basic human rights, such as the right to life, right to live with human dignity, right to health and medical treatment, right to a speedy trial etc.
The Bengal Jail Code, 1864 clearly states that the provisions of The Code of Criminal Procedure (1898), the Penal Code (1860), and the Civil Procedure Code (1908), which relate to the confinement of prisoners, execution of sentence, prisoners’ appeal, lunatics and the like must also be complied with.[ii] Simultaneously, the Prison Act, 1894 contains the basic necessities of prisoners, separate rooms for various kinds of prisoners, employment for prisoners and medical facilities, etc. The present scenario of our prisoners does not comply with these laws, rules, and provisions of our country. The prisoners lack basic requirements such as medical care, lighting, sanitation, and ventilation. Lack of medical facilities is a primary cause of deaths in jail custody. Reportedly, 71 prisoners died in 2006 as compared to 86 in 2005 and 104 in 2004. According to the jail authorities, 35 died of illness and 11 of heart attacks.[iii]
However, The Prisoners Act, 1900 focuses on the rights of lunatic prisoners. In this Act, it requires that, if the government has reasonable grounds to believe that any person detained or imprisoned under any order or sentence of any court is of unsound mind or lunatic, the government shall order his removal to a lunatic asylum or other places of safe custody within Bangladesh, but no such reflection can be observed in the present scenario.
In Bangladesh, four distinct types of jails with varying degree of security has been created under Rule 2 of the Jail Code. Yet in reality, according to Ain o Salish Kendra’s report, under-trial prisoners are kept with convicted prisoners in medium-security District jails.[iv] Moreover, sixteen Thana jails are not functioning at all.[v]
In the case of Sunil Batra vs Delhi Administration, the Honourable Court declared that where the rights of a prisoner, either under the Constitution or under other law, are violated, the writ power of the court can and should run to his rescue.[vi]
Article 32 of the Constitution provides that no person shall be deprived of life and liberty. Since Article 32 includes both substantive and procedural due process, the principle laid down by the Indian Court is applicable in Bangladesh with full force. This is why the precedent of Sunil Batra Case needs to be implicated in Bangladesh.
Regrettably, the state authority and the general public have made minimal attempts to address this issue and preserve the prisoners’ rights as promised by the statutes and international instruments. The Apex Court of the USA in the case of Charles Wolff v. McDonnell, and the Supreme Court of India in its famous cases such as DBM Patnaik v. State of Andhra Pradesh and Sunil Batra v. Delhi Administration has emphatically stated that, it must be realised that a prisoner is a human being as well as a natural person or a legal person. When a person is convicted of a crime, he is not reduced to the status of a non-person whose rights may be snatched away at the jail administration’s whims.[vii] As a result, administering any significant punishment within the jail system is contingent upon the absence of procedural safeguards. The majority of jail authorities in Bangladesh failed to meet the United Nation’s minimal standards for health services, hygiene, lighting, heating, and ventilation inside prisons.
In South Africa, even prisoners’ right to vote is a concerning matter. In the case of Augusta and another v. The Electoral Commission and others, the honourable court declared that denying prisoners their right to vote punishes both the prisoners and the South African democracy. Unfortunately, we cannot perceive even the most rudimentary implications of human rights, let alone the right to vote, in Bangladesh.
When it comes to prisoner treatment, states are required to adhere to the UN Standard Minimum Rules for Treatment of Prisoners, also known as the Nelson Mandela Rules. These rules require states to comply with the fundamental principles of life, health, personal integrity, non-discrimination in prisoners’ treatment, and the creation of conditions, that allow prisoners to adjust and integrate into normal community life.[viii] But these rules are still not implemented in Bangladesh. According to a survey, in Bangladesh, there are nine doctors for 90,638 inmates, one for every 10,000 inmates.[ix] Over 23 inmates are dying every month, amid a shortage of doctors, nurses, and ambulances, and poor medical facilities in 68 prisons of the country.[x] There are a lot of examples where the prisoners’ rights are not ensured even though there are several existing laws under the international and national statutes regarding the legal rights of prisoners.
In our country, the laws are quite adequate to protect the prisoners’ rights but the mechanism to execute them are similarly inadequate to protect their rights. The government should take necessary measures to implement them to protect the rights of prisoners. On the other hand, sufficient medical facilities should be provided according to the physical condition of the prisoners. Besides, under-trial prisoners must be separated from convicted prisoners. If all of these are done, the prisoners’ rights will be protected one-day establishing the notion of equity and justice domestically.
Fariha Hossen, LL.B (Hon’s), Daffodil International University
[i] Constitution of Peoples’ Republic of Bangladesh, Art 35(3).
[ii] The West Bengal Jail Code, Vol I, Part I <https://www.lawyersnjurists.com/article/the-west-bengal-jail-code-part-1/> accessed 23rd September 2021.
[iii] H. Hossain, ‘Human Rights in Bangladesh 2004’ Ain O Shalish Kendra (2005) p 62-63; H. Hossain, ‘Human Rights in Bangladesh 2005’ Ain O Shalish Kendra (2006) p 108.
[iv] Mohammad Tipu Sultan, ‘Rights of Prisoners’ Ain o Salish Kendra <http://www.askbd.org/ask/rights-prisoners/> accessed 23rd September 2021.
[vi] Sunil Batra vs Delhi Administration  AIR 1579,  SCR 2 .
[vii] Diganth Raj Sehgal, ‘Rights of prisoners and major judgments on it’ Ipleaders (November 6, 2020), <https://blog.ipleaders.in/rights-prisoners-major-judgments/> accessed 23rd September 2021.
[viii] The Nelson Mandela Rules: Protecting the Rights of Persons Deprived of Liberty, <https://www.un.org/en/un-chronicle/nelson-mandela-rules-protecting-rights-persons-deprived-liberty#:~:text=As%20a%20result%2C%20the%20Mandela,trial%20detainees%20to%20sentenced%20prisoners.&text=At%20the%20Robben%20Island%20prison,to%20better%20conditions%20for%20inmates> accessed 23rd September 2021.
[ix] Mohammad Jamil Khan, Shaheen Mollah, ‘9 prison doctors for 90,000 inmates’ The Daily Star (September 17, 2019) <https://www.thedailystar.net/frontpage/9-prison-doctors-for-90000-inmates-in-bangladesh-1801108> accessed 23rd September 2021.