Rights of prisoners in India: a family guide

A prison sentence takes away a person's freedom to move. It does not take away their humanity. Indian courts have said clearly that fundamental rights do not stop at the prison gate. This article explains what those rights are, what differs from State to State, and how a prisoner or their family can use them.

What the courts have said

In Sunil Batra v. Delhi Administration (1978), the Supreme Court held that prisoners keep their fundamental rights and that courts can step in to stop cruelty in jails. In Charles Sobhraj v. Superintendent, Central Jail, Tihar (1978), it said prisoners keep all rights except those necessarily lost by lawful imprisonment. In Prem Shankar Shukla v. Delhi Administration (1980), it held that handcuffing must be the exception, not the rule.

In Sukanya Shantha v. Union of India (2024), the Court struck down prison manual rules that assigned cleaning or cooking work by caste, or separated prisoners as "habitual offenders" by caste or tribe. It directed all States to amend their manuals and remove caste columns from prison registers.

Who makes prison rules

Prisons are a State subject, so each State has its own prison Act, rules and manual. The Prisons Act, 1894 still forms the base in many States. The Union government has circulated a Model Prison Manual (2016) and a Model Prisons and Correctional Services Act, 2023 for States to adopt, and adoption varies. Visiting hours, phone calls, parole and remission therefore differ from State to State. Ask the jail for its rules, or look for the State prison department's website.

Rights every prisoner keeps

• Dignity and safety. No torture, cruel punishment or degrading treatment. Solitary confinement and fetters are permitted only in narrow cases and have been strictly limited by the courts.
• Health. Adequate food, clean water, sanitation and medical care. A seriously ill prisoner can be referred to an outside hospital, and illness can be a ground for interim bail.
• Legal aid. A free lawyer if you cannot afford one (Art 39A). Every jail is supposed to have a legal aid clinic run by the District Legal Services Authority (DLSA), with paralegal volunteers who help draft bail and appeal applications.
• Equality. No discrimination by caste, religion, gender or class (Art 14).
• Family contact. Letters, interviews (mulaqat), and phone or video calls, subject to the State's rules. Many jails now take visit bookings through the e-Mulakat facility on the National Prisons Information Portal.
• Wages. Prisoners who work must be paid. In State of Gujarat v. High Court of Gujarat (1998), the Supreme Court held that convicts doing labour are entitled to reasonable wages.
• Appeal. A convict must be given a free copy of the judgment and can appeal; a legal aid lawyer can file it from jail.
• Parole and furlough. Temporary release for a family emergency, or after serving part of the sentence, under State rules. Apply in writing to the Superintendent; a refusal can be challenged in the High Court.

Women prisoners must be held separately and guarded by women staff. Under most State rules, a child up to six years may stay with the mother. Pregnant prisoners are entitled to medical care, and courts have granted bail or suspension of sentence for childbirth.

Undertrials: the Sec 479 BNSS right to release

About three in four prisoners in India are undertrials. Sec 479 BNSS (earlier Sec 436A CrPC, now wider) says that an undertrial who has spent half of the maximum sentence for the offence in custody must be released on bond, and a first-time offender (never convicted before) must be released after one-third of the maximum. This does not apply to offences punishable with death or life imprisonment, or where more than one case is pending. The Supreme Court held in August 2024 that the rule applies to all undertrials, including cases registered before 1 July 2024, and directed Jail Superintendents to identify eligible prisoners and move applications themselves.

What prisoners cannot do

Prisoners, whether convicted or undertrial, cannot vote under Sec 62(5), Representation of the People Act, 1951, though persons in preventive detention can vote by postal ballot. A convict may also lose some benefits, such as government employment, under service rules.

Step by step: raising a grievance

1. Write to the Jail Superintendent. Every jail has a complaint box or grievance register. Keep the complaint short and dated; a family member can send a copy by registered post.
2. Tell the visiting judge. Judicial officers and the District Judge visit jails periodically. Prisoners can raise complaints with them directly.
3. Use the prison legal aid clinic or ask the DLSA secretary (office in the district court complex) in writing. Families can call 15100.
4. Human Rights Commission. The National or State Human Rights Commission can inquire into ill-treatment, denial of medical care and deaths in custody. Complaints can be filed online or by post.
5. High Court. Courts have treated letters from prisoners as petitions. A lawyer can also file a writ petition under Art 226 for medical treatment, parole, transfer or compensation.