Prisoner

The Black’s Law Dictionary defines a prisoner as someone who is deprived of his liberty; one who is against his will kept in confinement or custody. A person restrained of his liberty upon any action, civil or criminal, or upon commandment. In simpler terms, prisoner means any person confined in prison under the order of a competent authority due to violation of any law of that country.

As per the VII schedule of the Constitution of India, prisons and other institutions of similar nature and their administration are state-list subject giving the State government the exclusive power to legislate and govern on this matter. Hence, prisoners are governed by the respective legislations and Prison manuals of each state. Hence, the Model Prison Manual 2016 or any act like the Prisons and Correctional Services Act, 2023 passed by the Central Government is merely suggestive and the states have the discretion to use them as guidance if they want or not.

Official Definition of ‘Prisoner’

‘Prisoner’ as defined in legislation(s)

The Model Prison Manual (2016) defines a prisoner as any person confined in prison under the order of a competent authority.

Further, Section 2(27) of the Prisons and Correctional Services Act, 2023, defines a prisoner as “a person committed to custody in a prison under the writ, warrant, order or sentence of a Court or a competent authority and includes convicted prisoner, civil prisoner, undertrial prisoner, prisoner remanded by a court to prison custody under the orders of a competent authority and a detenue”.

‘Prisoner’ as defined in official government report(s)

The Prison Statistics Report (PSI) defines a prisoner as any person confined or committed to jail (other than police custody) as per the order of a competent authority.

Types of Prisoners

Prisoners can be categorised based on the status of their trial under the following categories:

1. Convicted Prisoners - A person who has been found guilty of a crime and sentenced by a court of law and is serving a sentence in prison.
2. Criminal Prisoners - Any prisoner who is committed to custody under a writ, warrant, or order of any court or authority exercising criminal jurisdiction or by the order of a court martial.
3. Undertrial Prisoners - A person who is currently on trial in a court of law or who is imprisoned on remand whilst awaiting trial.
4. Detenues - A person who has been detained in prison under preventive detention laws.
5. Habitual Offenders - a prisoner who is committed to prison repeatedly for a crime.
6. Recidivists - any prisoner who is convicted for a crime more than once.
7. Civil prisoners - Prisoners who do not belong to any of the above categories and have been detained for default of payment of a fine or a civil financial liability.
8. Internees/Awaiting release - Persons who have completed their sentence but have not been released due to procedural delays; these are primarily in the case of foreign national prisoners (FNPs).

Further, the prisoners can be sub-categorised into the following categories as per Section 26(5) of the Model Prisons and Correctional Services Act, 2023 to be lodged separately in different prisons.

1. Drug addicts and alcoholic offenders;
2. First time offenders;
3. Foreign prisoners;
4. Old and infirm prisoners (65+ years);
5. Prisoners suffering from infectious/chronic diseases;
6. Prisoners suffering from mental illness;
7. Prisoners sentenced to death;
8. High-risk prisoners;
9. Women prisoners with children;
10. Young offender

Legal Provisions relating to Prisoners

Rights of Prisoner

• Prisoners have all the fundamental rights guaranteed by the Constitution of India, except those curtailed due to confinement. The protection of Articles 14, 19 & 21 extends to prisoners as well.As held by the Supreme Court in the case of Upendra Baxi v. State of U.P. that prisoners have the right to live in humane and good conditions and it comes under the right to live with dignity under Article 21. The Supreme Court in the case of Sunil Batra v. Delhi Administration recognised the right of the prisoners to be visited by friends and relatives.
• A prisoner has the right to consult and be defended by a legal practitioner of his choice under Article 22(1) of the Indian Constitution and Section 340 of BNSS, 2023 (Section 303 of CrPC).
• An eligible prisoner can access legal aid from the state as per Article 39A of the Indian Constitution and Section 341 of BNSS, 2023 (Section 304 of CrPC).
• The right to speedy trial is enshrined under Art. 21 of the Constitution & Section 346(1) BNSS, 2023 (Section 309(1) CrPC).
• As per section 47 of BNSS, 2023 (Section 50 of CrPC) has the right to be informed of the grounds of arrest and about his right to bail.
• A prisoner has the right to be present before the Magistrate without procedural delay as per sections 58 and 78 of BNSS, 2023 (Sections 57 & 76 of CrPC).
• Section 478 of BNSS, 2023 (436 of CrPC) which deals with the right to bail in bailable offences mandates the police and court to release an indigent/poor person on personal bond without asking for surety.
• Model Prison and Correctional Services Act, 2023Chapter XII provides for prisoner rights in general.
  • Section 35 provides for the safe custody and security of prisoners. It provides that the officer-in-charge must ensure the safe custody and security of prisoners through various measures like secure infrastructure, monitoring systems, and control of prohibited items.
  • Section 36 provides that prisoners may communicate with their friends and family. Chapter XIV provides for healthcare facilities for prisoners.
  • Section 44 provides that all prisoners will have access to adequate, gender-responsive healthcare facilities.
  • Section 45 even allows the transfer of prisoners to mental health establishments in certain cases. Similar rights have been recognised in the Prison manuals of the States and Union Territories. Special Provisions for Women and Transgender Persons The Model Prison Rules, 2023 has provided various other rights of prisoners including special provisions for women & transgender prisoners.

Collecting “measurements” of the convicted and the arrested

Criminal Procedure (Identification) Act, 2022 seeks to replace the 102-year-old colonial law on collecting “measurements” of the convicted and the arrested. The government brought in the Act to update the existing law on collecting measurements, the Prisoners Act, 1920. The 2022 Act introduces new categories of data, such as “iris scans” and “behavioral attributes”, which greatly expands the scope of data gathering. However, these keywords are not well defined. It allows for the collecting of data on almost everybody who has been imprisoned under preventive detention legislation as well as anyone who has been arrested or found guilty of any crime.

Furthermore, the Act gives lower-ranking officers the authority to mandate data gathering, requiring compliance under threat of legal consequences. The National Crime Records Bureau is in charge of centralizing the collected data, which is kept for up to 75 years with few options for deletion. This means that even minor offenses might be kept on file indefinitely. The 2022 Act seeks to govern technology improvements in criminal identification by addressing the outdated colonial statute on data collection. Promoted by the 87th Law Commission of India report, its objectives are to enhance conviction rates, deter crime, and speed criminal investigations. However, because of its vague phrasing, questions have been raised over the enactment process and the wide powers it affords the state. Opponents contend that it fails the proportionality test set forth in the K.S. Puttaswamy v UOI, which identified privacy as a fundamental right under Article 21, and infringes basic rights against self-incrimination and privacy.

International Experience

International Covenant on Civil and Political Rights

Article 11 of the International Covenant on Civil and Political Rights provides that “no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.”

The United Nations Standard Minimum Rules for the Treatment of Prisoners

The Nelson Mandela Rules were adopted on 17 December 2015 by the UN General Assembly and are a set of Rules setting good principles and practices in the treatment of prisoners and prison management. Rule 1 of the provides that all prisoners shall be treated with respect and dignity. Rule 2 provides that these rules should be applied without any discrimination. Rule 5 provides that prison administration should make special provisions for prisoners with physical, mental, or other disabilities.

United Nations Standard Minimum Rules for Non-custodial Measures

The Tokyo Rules adopted by General Assembly resolution on 14 December 1990 provide a set of basic principles to promote the use of non-custodial measures and sanctions, as well as minimum safeguards for persons subject to alternatives to imprisonment. Some of the key principles recognised by these rules are that pre-trial detention shall be used as a means of last resort and states should develop non-custodial measures within their legal systems to offer alternative options thus reducing the use of imprisonment. Additionally, these principles call for the rationalization of criminal justice policies, with due consideration given to human rights, social justice, and the rehabilitation needs of the offender.

United Nations Standard Minimum Rules for the Administration of Juvenile Justice

The Beijing Rules were by the UN General Assembly on 29 November 1985 and they provide a comprehensive social policy aiming at promoting juvenile welfare in the juvenile justice system to the highest possible extent. Key provisions include Rule 5 which says that the juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence. Rule 7 emphasizes rights such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings.

United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders

The Bangkok Rules were adopted by the UN General Assembly in December 2010 to fill the gap in the lack of standards providing for the specific characteristics and needs of women offenders and prisoners. The 70 Rules provide essential guidance for policymakers, legislators, sentencing authorities, and prison staff to minimize unnecessary incarceration of women and to address the specific needs of female inmates. These rules are crucial to protecting the rights of women offenders and prisoners, explicitly addressing the different needs that women have and the different situations they come from.

United Nations System Common Position on Incarceration

The paper addresses prison and associated challenges at the global, regional, and national levels to constitute the common framework for United Nations support to Member States concerning incarceration. It discusses challenges related to the overuse of pretrial detention and imprisonment; reinforced discrimination and inequalities; prison overcrowding; and neglect and abuse of prisoners. It prescribes that prison reform and the treatment of offenders should be considered integral to the 2030 Agenda for Sustainable Development, particularly with regard to Sustainable Development Goal 16, on peace, justice, and strong institutions, as well as Goal 3, on good health and well-being, Goal 5, on gender equality, and Goal 10, on reduced inequalities.

Appearance of ‘Prisoner’ in Database

Prison Management System PRISMS

The Prison Management System (PRISMS) is a jail booking and management system that provides information on incarcerated adults and juveniles. With 100% implementation across all jails and judicial lockups today PRISMS has also covered 100% functionalities concerning the prisoner. PRISMS reports provide reliable and timely information on all aspects of Prisoner management including inmate personal property, visitor activity, mental and medical health information, inmate movements in and out of the facility, commissary inventory and inmate purchases, medication updates, remission, parole and furlough, case and crime info, and population statistics.

Prisoner Search Retrieved from User Manual of Prison Management System (PMS) Date: August 26, 2019

Prisoner Management Module of E-Priosns, Retrieved from User Manual of Prison Management System (PMS) Date: August 26, 2019

Current Inmate Population Retrieved from User Manual of Prison Management System (PMS) Date: August 26, 2019

Prison Inmate Information Retrieved from User Manual of Prison Management System (PMS) Date: August 26, 2019

Prison Statistics Report

The Prison Statistics Report, 2022 (released by NCRB every year) reports on annual basis, a total number of prisoners that were confined in various jails across the country. This includes convicts, undertrial, and detenues. It also provides data on socio economic determinants of prisoners including education profile, age group, category on inmates - women, chid, and foreigners

E-Prisons

E-Prisons a digital India initiative developed by National Information Centre, to digitize , all the activities related to prison and prisoner management. Its central scope is to provide vital information about the inmates lodged in the prisons, in a real time environment, to the prison officials and other entities involved in the Criminal Justice System. It also facilitates online visit requests and grievances.

India Justice Report 2022: Ranking States on Police, Judiciary, Prisons and Legal Aid

The 3rd India Justice Report 2022 examined data relating to educational profile of prison inmates.

Research that engages with ‘Prisoner’

Forced Separation: Children of Imprisoned Mothers

The Forced Separation: Children of Imprisoned Mothers report, published by Prayas TISS in 2002, sheds light on the often “overlooked and vulnerable” group of children whose mothers are incarcerated. The report highlights the plight of children of prisoners, a group that remains largely unseen and underserved. The study also delves into the lives of “imprisoned mothers”. These women face their own challenges while their children remain on the outside. Their stories are marked by adversity, resilience, and the struggle to maintain connections with their children.

Children of Women Prisoners: An Invisible Trial

The Children of Women Prisoners: The Invisible Trial, a report by Prayas TISS published in 2018, sheds light on the often overlooked plight of children whose mothers are incarcerated in Indian prisons. These children face unique hardships due to their mothers' incarceration. Mothers in jail struggle to provide appropriate food for their children. Children often lack access to learning opportunities. Growing up in a closed jail environment, they also miss out on social interactions.

These children remain invisible to the outside world. They need care, protection, and specific services to prevent further exploitation and criminalization. This report underscores the urgent need for better facilities, education, and support for the children of incarcerated women in India.

Minds Imprisoned: Mental Health Care in Prisons

Minds Imprisoned: Mental Health Care in Prisons, a report published by National Institute of Mental Health and Neuro Sciences (NIMHANS) in 2011 sheds light on the mental health of prisoners in India. The report highlights that mental health issues are disproportionately common among prison inmates. The factors are primarily stress of imprisonment, violence, lack of privacy, and social isolation contribute to mental distress. Tobacco, alcohol, and other drug use further exacerbate the burden of mental health problems. Even prison staff experience high levels of mental distress. Despite court mandates, access to adequate mental health care within prisons remains insufficient. Approximately three in five people (63%) with a history of mental illness do not receive treatment while incarcerated.

Mental Health and Substance Use Problems in Prisons, The Bangalore Prison Mental Health Study: Local Lessons for National Action

The Bangalore Prison Mental Health Study, conducted by NIMHANS in collaboration with Karnataka SLSA and the Prisons Department of Karnataka, collected data over 2008-2009. The study established that prisons globally have a high prevalence of mental health and substance use issues. Estimates suggest that mental health problems within prisons are 2–3 times higher than in the general population. The World Health Organization (WHO) reported that out of the 9 million prisoners worldwide, at least 1 million suffer from significant mental disorders. This study aimed to understand the prevalence of mental disorders and substance use problems among inmates. It highlighted the challenges faced by prisoners and the impact of confinement on their mental well-being. The study revealed that mental health and substance use problems were indeed prevalent among prisoners in Bangalore. The detrimental effects of confinement within prisons were mentally exhausting for inmates, many of whom were unaware of their rights and the justice system. The study emphasized the need for targeted interventions to address mental health issues within prison settings.

Rajasthan’s Prison Visiting System: A Study of Role Perception and Role Performance of Non-official Visitors in the Prison Oversight Mechanism

Rajasthan’s Prison Visiting System, a report published by CHRI in 2011 sheds light on the prison visiting system in the state of Rajasthan. It seeks to understand the role and performance of Non-official Visitors (NOVs) in overseeing prison conditions. It focuses on assessing the effectiveness of NOVs in ensuring transparency and human rights within correctional facilities.

Incarceration of Children in Prisons in India

It is an RTI-based study conducted by iProbono on the wrongful incarceration of children in prisons across India reflecting state failure. The study attempted to compile a comprehensive state-wise dataset on the number of children in conflict with the law (CCLs) who were detained in central and district jails in India across a six-year period from 1 January 2016 to 31 December 2021, and transferred to childcare institutions. The key finding of the report was that at least 9681 children were wrongly incarcerated in adult prisons across the country in the defined period in the 50% of prisons (i.e. 285 district and central prisons out of a total of 570 prisons) that responded to the RTIs. This does not include the 749 other prisons from which data was not requested, including sub-jails, women’s prisons, open prisons, special prisons, borstal schools, and other prisons.

Similar Terms

In India, the term prisoner in many instances is used to refer to both convicted individuals and those awaiting trial i.e. undertrials.

The term inmates is also used interchangeably with the term prisoner.