[This paper was presented at a One day National Seminar on Access to Criminal & Correctional Justice for Marginalized in Contemporary Indian Context organized by Tata institute of Social Sciences, Mumbai along with Maharashtra Human Rights Commission and International Justice Mission on 28th January, 2018]
VI) International conventions and rules on right to access to justice:- The Geneva Convention relative to the Treatment of Prisoners of War was first adopted in 1929, but significantly revised at the 1949 conference. Prisoners of war may not renounce rights secured by the Conventions. Those rights include the rights to humane treatment which prohibits specifically violence causing death or seriously endangering health, or physical mutilation or scientific or medical experiments, protection from acts of intimidation, insults and public curiosity, protection from reprisals, exercise, protection from physical or mental torture, adequate physical and psychological treatment, to keep personal items including money, to be evacuated if the territory in which they are held becomes too dangerous, to adequate food, water, shelter and clothing, sanitary living conditions, religious freedom, and to complain. Detaining powers have the right to use appropriate force in the event of escape or a riot, to require prisoners to given their name and rank, and to utilize prisoners for labour as long the work doesn’t have to do with the war effort.
The International Covenant on Civil and Political Rights came into force 23 March 1976. Article 10 of the International Covenant on Civil and Political Rights provides that any person deprived of their liberty shall be treated with humanity and dignity. The article imposes a requirement of separation of prisoners in pre-trial detention from those already convicted of crimes, as well as a specific obligation to separate accused juvenile prisoners from adults and bring them before trial speedily. There is also a requirement that the focus of prisons should be reform and rehabilitation, not punishment. These provisions apply to those in prisons, hospitals (particularly psychiatric hospitals), detention facilities, correction
facilities or any other facility in which a person is deprived of their liberty. The article complements article 7 of the Covenant, which bans torture or other cruel, inhumane or degrading treatment, by guaranteeing those deprived of their liberty with the same conditions as that set for free persons.
The United Nations Standard Minimum Rules for the Treatment of Prisoners came into force in 1955. The standards set out by the UN are not legally binding but offer guidelines in international and municipal law with respect to any person held in any form of custody. They are generally regarded as being good principle and practice for the management of custodial facilities. The document sets out standards for those in custody which covers registration, personal hygiene, clothing and bedding, food, exercise and sport, medical services, discipline and punishment, instruments of restraint, information to and complaints by prisoners, contact with the outside world, books, religion, retentions of prisoners’ property, notification of death, illness, transfer, removal of prisoners, institutional personnel and inspection of facilities. It also sets out guidelines for prisoners under sentence which further includes treatment, classification and individualisation, privileges, work, educations and recreations, and social relations and after-care. There are also special provisions for insane and mentally abnormal prisoners, prisoners under arrest or awaiting trial, civil prisoners and persons arrested or detained without charge.
The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment entered into force on 1 March 2002. The Convention establishes the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the Committee). The Committee is permitted to visit all places of detention, defined by the convention as “any place within its jurisdiction where persons are deprived of their liberty by a public authority.” Once a state government is notified of the intention of the Committee to carry out a visit it is required to allow access to the territory with the right to free travel without restriction, full information of the facility in question, unlimited access to the facility and free movement within it, the right to interview any person being held within the facility, communicate freely with any person whom it believes can supply relevant information and access to any other information which the Committee feels is necessary to carry out its task.
The Convention on the Rights of Persons with Disabilities entered into force on 30 March 2007 and has 154 state parties. The Convention’s purpose is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” Persons with disabilities are defined as those “who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” “Article 13 of the Convention relates to access to justice for persons with disability. It provides that in order to “ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.”
VII) Suggestion:- My suggestions are if trials can be speeded up by increasing the number of judges, magistrates and police officials it will have a meaningful impact. We all know prevention is better than cure, if the number of law enforcement authority lies vacant every year but no necessary effort usually taken by the appropriate authority. In a research conducted by TISS,MUMBAI it was found out that a Police Officer who has no holidays, no time for his or her family member need to do 29 types of work or more. I heard this data while I was submitting my research paper in TISS, MUMBAI on 28th January, 2018. Lack of officials creating more agony towards access to Justice. Use of more science and technical instrument for ensuring justice, encouraging video conference between jail and court will be a key factor in future. I feel holding Special Courts in Jails for prisoners for petty offences, release of under-trials who has stays in prison has exceeded the maximum sentence for the crime enshrined in penal code and other statutes will be a first step towards this goal.
Reducing indiscriminate and unnecessary arrests, avoiding overcrowding in jail, avoiding low pace of investigation and intentional delay in submitting charge sheet, strive towards preventing crime and reducing crime rate with reasonable procedure will be a great initiative.
If in every police station several department can be created like, investigation department, court case department, record department to reduce workload from each police officials so they can concentrate and capable of on preventing injustice, crime rate before it’s too late will be a booster to protect our society and achieve our constitutional goal. Proper implementation of free legal aid services and encouraging young lawyers by several method for this service is essential to succed. I hope for a better future of my country India.
VIII) Conclusion:- Everything is interconnected in this Universe so my topic has connection with its subtopic. If everyone come and hold hands of each other not only for sake of Justice to the victims but for the welfare of them by making a better future for future generation. If every department performs its duty with due care, diligence; if executive compliments and co operate with judicial organ it is very much possible to achieve the target enshrined in the Preamble of our Constitution.
List of cases:-
- Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, 1979 AIR 1369, 1979 SCR (3)532
- Thulia Kali V. the State of Tamil Nadu AIR 1973 SC 501
- State of Haryana v. Ram Kishan 2000(2) RCR (Criminal) 1 (P&H) (DB)
- Bathula Nagamalleswara Rao & Ors. V. State Rep. By Public Prosecutor 2008(2) CRIMES 188 (SC) at page 189
- State Of U.P. V. Manoj Kumar Pandey AIR 2009 SC 711 para 3