Before discussing the human rights of prisoners from the point of view of international as well as national perspective it is necessary to first to know about the meaning and nature of human rights. Human rights are those rights which are essential for every human being either a normal human being or a prisoner. It can be said that human rights rests upon the idea i.e., every human being is entitled to enjoy his or her rights without distinction or discrimination of any kind like discrimination on the basis of caste, religion, race, nationality etc. Human rights are essential for the complete development of human personality, and for human happiness. Human rights when they are guaranteed by a written constitution are known as “Fundamental Rights” because a written constitution is the fundamental law of the state. Human rights of people have been protected by various international and national instruments including the Constitution of India.

It is significant to note that the idea of human rights is bound up with the idea of human dignity.[1] Human rights are a special sort of inalienable moral entitlement. They attach to all persons equally, by virtue of their humanity, irrespective of race, nationality, or membership of any particular social group. Human rights belong to an individual as a consequence of being human.[2]  Human rights are indivisible and interdependent and therefore precisely there cannot be different kinds of human rights. All human rights are equal in importance and are inherent in all human beings.[3]

According to Durga Das Basu “Human rights are those minimal rights, which every individual must have against the State, or other public authority, by virtue of his being a ‘member of human family’ irrespective of any consideration.” As Per the Universal Declaration of Human Rights (UDHR), 1948, the term “human rights” means rights derived from the inherent dignity of the human person. In India, the Protection of Human Rights Act, 1993 defines the term “human rights” and as per this Act “human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.[4]” In India, the Parliament enacted the Protection of Human Rights Act, 1993 to provide protection to every human being of their human rights which all they are entitled and to constitute National Human Rights Commission, State Human Rights Commission and Human Rights Courts for better protection of human rights.

In a nutshell it can be said that following are the features of the human rights:-

• Human rights are inalienable.
• Human rights are essential and necessary.
• Human rights are in connection with human dignity.
• Human rights are irrevocable.
• Human rights are universal.
• Human rights are never absolute.
• Human rights are dynamic.
• Human rights are necessary for the fulfillment of purpose of life.

Whether a human right is legal right?

An important question is arose while we discussing about the human rights i.e., whether a human right is legal right? The answer is in affirmative because human rights belongs to human beings and the State has the corresponding duty to protect the rights of human beings. The international instruments like International Covenant on Civil and Political Rights, 1966 and International Covenant on Economic, Social and Cultural Rights, 1966 states that it is obligation of States to promote universal respect for and observance of human rights and freedoms. Similarly it has been stated under the Declaration of the Human Rights Defenders which has been adopted by the General Assembly of the United Nations on December 9, 1998 that each State has the prime responsibility and duty to protect, promote and implement all human rights by adopting necessary measures. Therefore, it can be said that the human right is a legal right.

WHO IS A PRISONER?

In simple terms it can be said that prisoner is a person legally committed to prison as a punishment for a crime or while awaiting trial. A prisoner is a person who is kept in a prison as a punishment for a crime that they have committed.[5] The word ‘prisoner’ means any person who is kept under custody in jail or prison because he/she committed an act prohibited by law of the land. A prisoner also known as an inmate is anyone who, against their will, is deprived of liberty. This liberty can be deprived by forceful restrain or confinement.[6]

The term “prisoner” has not been defined under the Prisons Act, 1894 but the Act itself classified the prisoners into two categories i.e., Criminal Prisoner and Civil Prisoner. The term “Criminal Prisoner” means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or by order of a Court-martial.[7] And the term “Civil Prisoner” means any prisoner who is not a criminal prisoner.[8]

HUMAN RIGHTS AND PRISONERS

Prisoners are also entitled to every human right to some extent as a normal human being when they are behind the prison but these rights are subjected to the conditions prescribed by law. The rights of prisoners are guaranteed by various international instruments as well as national instruments. Prisoners are persons and have some rights and do not lose their basic constitutional rights. One of the best tenets of human rights law is that human rights are inalienable and under no circumstances can any authority take away a person’s basic human rights. The fact that this tenet is not sometimes made applicable to prisoners is well documented.[9]

For the proper understanding of the human rights of prisoners we may divide it into two broad categories:-

• Rights of Prisoners guaranteed under various International Instruments.
• Rights of Prisoners guaranteed under various National Instruments including the Constitution of India.

Now these above two points can be discussed in detail hereunder:-

Rights of Prisoners guaranteed under various International Instruments:-

The provisions relating to the rights and treatment of the prisoners are contained in various international instruments like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the United Nations Standard Minimum Rules for the Treatment of Prisoners, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the United Nations Basic Principles for the Treatment of Prisoners etc. Now we are discussing the provisions contained in these international instruments regarding the rights and treatment of prisoners one by one as hereunder:-

The Universal Declaration of Human Rights (UDHR)

The General Assembly of the United Nations (UN) adopted the Universal Declaration of Human Rights (UDHR) on December 10, 1948 to promote the human rights in the world. It has been stated under Article 1 of the UDHR that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2 of the UDHR provides that everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. It would be clear that the term “all human beings” used in Article 1 and the term “everyone” used in Article 2 also includes prisoners.

Article 3 of the UDHR states that everyone has the right to life, liberty and security of person. Right to life is one of the basic human rights and is available to both either to prisoner or to freemen. Prisoners are not subjected to torture, cruel, inhuman treatment in the prisons. It would be clear from the language of the Article 5 of the UDHR which states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The International Covenant on Civil and Political Rights (ICCPR)

Regarding the treatment of prisoners provisions are made in the International Covenant on Civil and Political Rights (ICCPR) which has been adopted by the General Assembly of the United Nations adopted on December 16, 1966 and came into force on March 23, 1976. Article 6(1) of the ICCPR grants every human being whether prisoner or freemen inherent right to life. This right shall be protected by law and no one shall be arbitrarily deprived of his life. It has been further provided under Article 7 of the ICCPR that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 10 of the ICCPR which is most important Article in respect of treatment of prisoners. It provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.[10] The distinction must be made between the accused persons and convicted persons. Accused persons must be segregated from convicted persons and must be accorded separate treatment appropriate to their status as unconvicted persons. However, exceptions may be made in exceptional circumstances.[11] Similar provisions are made for accused juvenile persons. They should be separated from adults and brought as speedily as possible for adjudication.[12] The essential aim of the treatment of prisoners should be their reformation and social rehabilitation.[13]

The United Nations Standard Minimum Rules for the Treatment of Prisoners

It has been adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. The United Nations Standard Minimum Rules for the Treatment of Prisoners contains so many rules regarding the rights and treatment of prisoners but we can only provide some of them which are most important. These are as follows:-

• Provisions relating to the separation of categories of prisoners.[14]
• Provisions relating to the accommodation.[15]
• Provisions relating to the clothing and bedding.[16]
• Provisions relating to the food.[17]
• Provisions relating to the exercise and sport.[18]
• Provisions relating to the medical services.[19]
• Provisions relating to the protection of prisoners against double jeopardy.[20]
• Provisions relating to the prohibition of corporeal punishment, punishment by placing in dark cell, and all cruel, inhuman or degrading punishment.[21]
• Provisions relating to the information to and complaints by prisoners.[22]
• Provisions relating to the rights of prisoners to contact with their family and reputable friends.[23]

Apart from these rules the United Nations Standard Minimum Rules for the Treatment of Prisoners also made rules regarding the treatment of prisoners under sentence, insane and mentally abnormal prisoners, prisoners under arrest or awaiting trial, civil prisoners and persons arrested or detained without charge in a detailed manner.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

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. All information gathered is confidential. In exceptional circumstances a state may make representations based on grounds of national defence, public safety, and serious disorder in custodial facilities against a visit to a certain place or at a certain time. After each visit a report is drawn up with any possible suggestions to the state in question.[24]

United Nations Basic Principles for the Treatment of Prisoners

Apart from these above international instruments concerning the rights and treatment of prisoners, there is a United Nations Basic Principles for the Treatment of Prisoners which has been adopted by the General Assembly on December 14, 1990 which clearly states that all prisoners should be treated with due respect for their inherent dignity and value as human beings without discrimination of any kind. They should be accorded with all the human rights and fundamental freedoms set out in universally recognized international instruments except the freedom of movement.

Rights of Prisoners guaranteed under various National Instruments including the Constitution of India:-

Prisoners are entitled to almost all the human rights as a normal human being in India but these rights are subjected to the reasonable restrictions as prescribed by law. The Indian State is a signatory to various international instruments of human rights, like the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights etc. and these international instruments guaranteed human rights to everyone including prisoner. So the Indian State is obliged to uphold and ensure observances of basic human rights of the prisoners as well as freemen. For the proper understanding of the human rights of prisoners as guaranteed by the various national instruments it can be divided into two parts which are as follows:-

• Rights of Prisoners under the Constitution of India
• Rights of Prisoners under the Prisons Act, 1894

Rights of Prisoners under the Constitution of India

The Constitution of India does not expressly provide the provisions related to the rights of prisoners but in the case of T.V. Vatheeswaran v. State of Tamil Nadu,[25] it was held that the Articles 14, 19 and 21 are available to the prisoners as well as freemen. Prison walls do not keep out fundamental rights. The Supreme Court of India, by interpreting Article 21 of the Constitution, has developed human rights jurisprudence for the preservation and protection of prisoners’ rights to human dignity.[26] Prisoners are entitled to all the constitutional rights unless their liberty has been constitutionally curtailed.

Article 14 of the Constitution of India says that the State shall not deny to any person equality before law or the equal protection of laws within the territory of India. Thus Article 14 contemplated that like should be treated alike, and also provided the concept of reasonable classification. This article is very useful guide and basis for the prison authorities to determine various categories of prisoners and their classifications with the object of reformation.[27]

Article 19 of the Constitution of India guarantees six freedoms to the all citizens of India. Among these freedoms certain freedoms cannot enjoyed by the prisoners because of the very nature of these freedoms. The convicts by mere reason of their conviction are deprived of some of their fundamental rights such as right to move freely throughout the territory of India or the right to practice a profession.[28]

Article 21 of the Constitution of India says that no person shall be deprived of his life or personal liberty except according to procedure established by law. This Article stipulates two concepts i.e., right to life and principle of liberty. By Article 21 of the Indian Constitution it is clear that it is available not only for free people but also to those people behind the prison. Article 21 casts an obligation upon the State to preserve the life of every person, whether innocent or guilty.[29]

The Supreme Court in the case of People’s Union of Democratic Rights v. Union of India[30], focused on the importance of human dignity by saying that the right to life guaranteed under Article 21 is not confined merely to physical existence or the use of any faculty or limb through which life is enjoyed, it also includes within its scope and ambit the right to live with basic human dignity and the State cannot deprive any one of this precious and invaluable right without just, fair and reasonable procedure established by law. Again in the case of State of Andhra Pradesh v. Challa Ram Krishna Reddy[31], the Supreme Court made the observation that the right to life is one of basic human rights and held that even a prisoner, be he a convict or under-trial or a detenu continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. However, the convicts by mere reason of their conviction are deprived of some of their fundamental rights such as right to move freely throughout the territory of India or the right to practice a profession. It was also held that on being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights. Here it is important to know about the term “procedure established by law”, it was firstly held in the cases of A.K. Gopalan v. State of Madras[32] and A.D.M. Jabalpur v. Shivakant Shukla[33] that the term “procedure established by law” in Article 21 means procedure prescribed by law as enacted by the State and rejected to equate it with the American “due process of law” (due process of law means to enshrine the principles of natural justice). But in the case of Maneka Gandhi v. Union of India[34], the Supreme Court pronounce protection under Article 21 against the legislature also and held that the procedure established by law for depriving a person of his life and personal liberty must be just, fair and reasonable and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirements of Article 21 would not be satisfied. 

The case of Sunil Batra v. Delhi Administration[35]is a landmark case concerning the important suggestions for safeguarding the rights of the prisoners. These suggestions were made by Justice Krishna Iyer which are as follows:-[36]

• Prisoners ‘under sentence of death’ shall not be denied any of the community amenities, including games, newspapers, books, moving around and meeting prisoners and visitors, subject to reasonable regulations of prison management.
• Prisoners ‘under sentence of death’, if desires loneliness for reflection and remorse, for prayers and making peace with his maker, or opportunities for meeting family or friends such facilities shall be liberally granted.
• Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture.
• Bar fetters should be for short spells, light and never applied if sores exist. Bar fetters should not be imposed arbitrarily. Victims should be given a hearing before imposing bar fetters and he shall be provided with grounds for fetters. And where the decision to fatter is made, the reasons shall be recorded in the journal and in the history ticket of the prisoner in the State language. If he is a stranger to that language it shall be communicated to him, as far as possible in his language.
• Bar fetters shall not continue beyond day time. The prolonged continuance of bar fetters, as punitive and preventive steps shall be subject to previous approval by Chief Judicial Magistrate or Sessions Judge.
• Legal aid should be given to prisoner to seek justice from prison authorities, and, if need be, to challenge the decision in Court in cases they are too poor to secure on their own.

Following are the rights of prisoners which are implicitly provided under the Article 21 of the Constitution of India:-

• Rights of inmates of protective homes.[37]
• Right to free legal aid.[38]
• Right to speedy trial.[39]
• Right against cruel and unusual punishment.[40]
• Right to fair trial.[41]
• Right against custodial violence and death in police lock-ups or encounters.[42]
• Right to live with human dignity.[43]
• Right to meet friends and consult lawyer.[44]
• Rights against solitary confinement, handcuffing & bar fetters and protection from torture.[45]
• Right to reasonable wages in prison.[46]
• Right to compensation for wrongful arrest, detention and torture.[47]
• Right against delayed execution.[48]
• Right against public hanging.[49]
• Right of release and rehabilitation of bonded labour.[50]

Apart from these above rights, prisoners are also entitled to following rights:-

• Right to punishment as prescribed by law.
• Right to communication and information.
• Right to writ of habeas corpus.

It is significant to note that an undertrial or convicted prisoner cannot be subjected to a physical or mental restraint- a) which is not warranted by the punishment awarded by the court, or b) which is in excess of the requirements of prisoners discipline, or c) which constitutes human degradation.[51]

Rights of Prisoners under the Prisons Act, 1894

Prisons Act of 1894 is the first legislation regarding prison regulation in India. This Act mainly focus on reformation of prisoners in connection with the rights of prisoners. In the year of 2016 the Parliament has been passed the Prisons (Amendment) Bill, 2016 to amend the Prisons Act, 1894 with a view to provide protection and welfare of the prisoners in the present context and in tune with the Constitution of India and to create an atmosphere to rehabilitate and socialize prisoners to enable them to re-inter the society. Following Sections of the Prisons Act, 1894 [including the provisions of the Prisons (Amendment) Act, 2016] are related with the reformation of prisoners:-

• Accommodation and sanitary conditions for prisoners.[52]
• Provisions for the shelter and safe custody of the excess number of prisoners who cannot be safely kept in any prison.[53]
• Provisions relating to the examination of prisoners by qualified Medical Officer.[54]
• Provisions relating to separation of prisoners, containing female and male prisoners, civil and criminal prisoners and convicted and undertrial prisoners.[55]
• Provisions relating to the prisoner’s right to health.[56]
• In case of a pregnant prisoner, her diet and work allocation shall be determined as per medical advice.[57]
• A pregnant prisoner shall be entitled to grant of conditional parole for thirty days from the expected date of delivery or thirty days from the date of delivery if the delivery takes place while she is in prison.[58]
• Provisions relating to the maintenance of hygiene or sanitation in jail premises so the prisoners could maintain their health.[59]
• Provisions relating to the establishment of separate prisons to keep habitual and hardcore offenders separately from the first time offenders and the offenders convicted for lesser crimes.[60]
• Provisions relating to the skill training in prisons[61] provided to the prisoners and conduct workshops and seminars[62]on such subjects as would be helpful for rehabilitation of and for educating the prisoners.

WAYS OF VIOLATION OF HUMAN RIGHTS OF PRISONERS

There are so many ways in which the human rights of prisoners should be violated in worldwide. These are as follows:-

• Disturbing conditions of the prisons.
• Custodial death.
• Physical torture.
• Police excess.
• Degrading treatment.
• Custodial rape.
• Poor quality of food.
• Lack of water supply.
• Poor health system support.
• Not producing the prisoners to the Court.
• Unjustified prolonged incarceration.
• Forced labour.
• Any other problem created by the Jail authorities.

In India, the Supreme Court in the case of Rama Murthy v. State of Karnataka[63], has observed that the Indian prisons faced the following problems in the context of the rights and treatment of the prisoners:-

• 80% prisoners are under-trials.
• Delay in trial.
• Even though bail is granted, prisoners are not released.
• Lack or insufficient provisions of medical aid to prisoners.
• Callous and insensitive attitude of Jail authorities.
• Punishment carried out by Jail authorities not coherent with punishment given by the Court.
• Harsh mental and physical torture.
• Lack of proper legal aid.
• Corruption and other malpractices.

CONCLUSION

It can be said that the prisoners are also entitled to all his fundamental rights while they are behind the prisons. Indian Constitution does not expressly provides for the prisoners’ rights but Articles 14, 19 and 21 implicitly guaranteed the prisoners’ rights and the provisions of the Prisons Act, 1894 contains the provisions for the welfare and protection of prisoners. The Court has ruled that it can intervene with prison administration when constitutional rights or statutory prescriptions are transgressed to the injury of the prisoner. Supreme Court in many cases held that prisoner is a human being, a natural person and also a legal person. Being a prisoner he does not cease to be a human being, natural person or legal person. Conviction for a crime does not reduce the person into a non person, whose rights are subject to the whim of the prison administration and therefore, the imposition of any major punishment within the prison system is conditional upon the absence of procedural safeguards. The Indian State is a signatory to various international instruments of human rights, like the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights etc. The Universal Declaration of Human Rights states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[64] The International Covenants on Civil and Political Rights states that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”[65] Therefore, both under national as well as international human rights law, the state is obliged to uphold and ensure observances of basic human rights.

ENDNOTES

[1] Dr. H.O. Agarwal, International Law and Human Rights 754 (Central Law Publications, Allahabad, 20^th ed., 2014).

[2] http://www.abyssinialaw.com/study-on-line/item/942-nature-and-definition-of-human-rights, (accessed on 16^th Jan, 2018).

[3] Dr. H.O. Agarwal, International Law and Human Rights 756 (Central Law Publications, Allahabad, 20^th ed., 2014).

[4] The Protection of Human Rights Act, 1993, Section 2(1) (d).

[5] Collins English Dictionary, available at https://www.collinsdictionary.com/dictionary/english/prisoner, (accessed on 16^th Jan, 2018).

[6] Human Rights Violation of Prisoners in India, available at https://blog.ipleaders.in/human-rights/, (accessed on 16^th Jan, 2018).

[7] The Prisons Act, 1894, Section 3(2).

[8] Ibid. Section 3(4).

[9] Commonwealth Human Rights Initiative and Madhya Pradesh Human Rights Commission, Report on Workshop on Prisons and Human Rights, 1998, p.3.

[10] The International Covenant on Civil and Political Rights, Article 10, paragraph 1.

[11] Ibid. Article 10, paragraph 2(a).

[12] Ibid. Article 10, paragraph 2(b).

[13] Ibid. Article 10, paragraph 3.

[14] The UN Standard Minimum Rules for the Treatment of Prisoners, Rule 8.

[15] Ibid. Rules 9 to 14.

[16] Ibid. Rules 17 to 19.

[17] Ibid. Rule 20.

[18] Ibid. Rule 21.

[19] Ibid. Rules 22 to 26.

[20] Ibid. Rule 30.

[21] Ibid. Rule 31.

[22] Ibid. Rules 35 to 36.

[23] Ibid. Rules 37 to 39.

[24] https://en.wikipedia.org/wiki/Prisoners%27_rights_in_international_law, (accessed on 19^th Jan, 2018).

[25] AIR 1983 SC 361.

[26] Dr. U. Chandra, Human Rights 113 (Allahabad Law Agency Publications, Allahabad, 8^th ed., 2010).

[27] Nitai Roy Chowdhury, Indian Prison Laws and Correction of Prisoners 75 (Deep and Deep Publications, New Delhi, 2002).

[28] State of Andhra Pradesh v. Challa Ram Krishna Reddy, AIR 2000 SC 2083. 

[29] Paramanand v. Union of India, (1989) 4 SCC 286.

[30] AIR 1982 SC 1473.

[31] AIR 2000 SC 2083.

[32] AIR 1950 SC 27.

[33] AIR 1976 SC 1207.

[34] AIR 1978 SC 597.

[35] AIR 1978 SC 1675.

[36] Dr. U. Chandra, Human Rights 115 (Allahabad Law Agency Publications, Allahabad, 8^th ed., 2010).

[37] Upendra Baxi v. State of U.P., (1983) 2 SCC 308.

[38] M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544; the Constitution of India, Article 39-A.

[39] Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81.

[40] Jagmohan Singh v. State of U.P., AIR 1973 SC 947.

[41] Rattiram v. State of M.P., (2012) 4 SCC 516.

[42] D.K. Basu v. State of W.B., (1997) 1 SCC 416.

[43] Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.

[44] Sunil Batra v. Delhi Administration, AIR 1980 SC 1579.

[45] Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535.

[46] People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.

[47] Rudal Shah v. State of Bihar, AIR 1983 SC 1086; Bhim Singh v. State of J & K, (1985) 4 SCC 677.

[48] T.V. Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361.

[49] A.G. of India v. Lachma Devi, AIR 1986 SC 467.

[50] Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

[51] P.M. Bakshi, The Constitution of India 79 (Universal Law Publishing, New Delhi, 14^th ed., 2017).

[52] The Prisons Act, 1894, Section 4.

[53] Ibid. Section 7.

[54] Ibid. Section 24(2).

[55] Ibid. Section 27.

[56] Ibid. Sections 37 to 39.

[57] Ibid. Section 26A (1) [As inserted by the Prisons (Amendment) Act, 2016].

[58] Ibid. Section 26A (2) [As inserted by the Prisons (Amendment) Act, 2016].

[59] Ibid. Section 39A [As inserted by the Prisons (Amendment) Act, 2016].

[60] Ibid. Section 58A [As inserted by the Prisons (Amendment) Act, 2016].

[61] Ibid. Section 58E [As inserted by the Prisons (Amendment) Act, 2016].

[62] Ibid. Section 58F [As inserted by the Prisons (Amendment) Act, 2016].

[63] (1997) 2 SCC 642.

[64] The Universal Declaration of Human Rights, Article 5.

[65] The International Covenants on Civil and Political Rights, Article 10(1).

Author: Ritesh Kumar, Student- LLM, NALSAR Hyderabad

Note: The above article has been published in Legal Desire International Journal on Law (ISSN: 2347-3525) Jan 2018 Edition

The post Human Rights of Prisoners: International & National Perspectives appeared first on Legal Desire Media and Insights.

PROBATION: MEANING, MERIT AND DEMERITS

The term ‘probation’ is derived from the Latin word ‘probare’ which means ‘to test’ or ‘to prove’. Etymologically, probation means ‘I prove my worth’. Probation is one of the measures which may be used by Courts as an improved form of non-custodial alternative in place of incarceration. This correctional device is being increasingly used by the magistracy in modern times. It aims at rehabilitation of offenders by returning them to society during the period of supervision rather than sending them into an unnatural and socially unhealthy atmosphere of prisons. The offender is allowed to remain in the community and develop as a normal human being in his own natural surroundings.[1]Probation is also defined “as the postponement of final judgment or sentence in a criminal case, giving the offender an opportunity to improve his conduct and to readjust himself to the community, often on condition imposed by the court and under the guidance or supervision of an officer of the court.”[2]

In India, probation is used as an institutional method of treatment which is a necessary appendage of the concept of crime and probation received statutory recognition for the first time in 1898 through Section 562 of the Code of Criminal Procedure, 1898 (now Section 360 of Code of Criminal Procedure, 1973).

Probation is governed by the provisions of Probation of Offenders Act, 1958. In the case of Ramji Missar v. State of Bihar,[3]it was held that the Probation of offenders Act provides for the release of offenders on probation or after due admonition and for matters connected therewith. The purpose behind the enactment of this Act is to top conversion of youthful offenders into stubborn criminals as a result of their association with hardened criminal of mature age in case of youthful offenders are sentenced to  undergo imprisonment in jail.

Here it is important to discuss the scope of probation under provisions of Section 360 of Cr.P.C., 1973 and under the Probation of Offenders Act, 1958. It is clear from the case of Chhanni v. State of U.P.[4], in which the Supreme Court held that the enforcement Probation of Offenders Act, 1958 in particular area excludes the applicability of provisions of Section 360 of the Code of Criminal Procedure, 1973 and the scope of Section 4 of the Probation of Offenders Act is much wider than Section 360 of the Code of Criminal Procedure which relates only to persons not under the age of 21 years, convicted for offences punishable with fine only or with imprisonment up to 7 years, and any woman convicted of an offence not punishable with death or imprisonment for life .

Merits and Demerits of Probation

Following are the merits or advantages of probation:-

• It is most useful in the case of juvenile delinquents.
• It gives hope for the rehabilitation of the offender who has not committed the offence.
• Probation is a way of sending good idea in the mind of offenders.
• It is helpful for both hardcore and youthful offenders.
• It helps in reducing the crowding in the jails.

Following are the demerits or disadvantages of probation:-

• The threat of further punishment should also be incurred in the mind of prisoners. Here there is no threat in the mind of prisoner.
• It decreases the average penalty.

PAROLE: MEANING, MERITS AND DEMERITS

Parole is a release from prison after part of the sentence has been served; the prisoner still conditions until discharged and is liable to return to the institution for Probation Violation of any of these conditions. It helps in reducing overcrowding in prisons. According to Donald Taft, “Parole is a release from prison after part of the sentence has been served, the prisoner still remaining in custody and under stated conditions until discharged and liable to return to the institution for violation of any of these conditions.[5] According to J.L. Gillin, “Parole is the release from a penal or reformative institution of an offender who remains under the control of correctional authorities, in an attempt to find out whether he is fit to live in the free society without supervision.[6]

The Supreme Court in Smt. Poonam Lata v. Wadhawan & Others,[7]has clarified that parole is a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not, in any way, change the status of the prisoner.

In the case of Avtar Singh v. State of Haryana,[8]the Supreme Court held that generally speaking, the act of granting parole is an administrative action and parole is a form of temporary release from prison custody, which does not suspend the sentence of the period of detention, but provides conditional release from the prison and changes the mode of undergoing the sentence.

The main objectives of parole technique as stated in the Model Prison Manual are:-[9]

• To enable the inmate to maintain continuity with his family life and deal with family matters;
• To save the inmate from the evil effects of continuous prison life;
• To enable the inmate to retain self-confidence and active interest in life.

In India, the grant of Parole is largely governed by the rules made under the Prison Act, 1894 and Prisoner Act, 1900. In parole there is a Parole Board consists of parole administrators who are from among the respectable members of society. These members are assigned the function of discharging convicted prisoners on parole after careful scrutiny. They are performing a quasi-judicial function.

Merits and Demerits of Parole

Following are the merits or advantages of parole:-

• It creates hopes among other prisoners.
• Once you have been released on parole, there is the opinion of the society is liberal.
• Securing family life of the parolee.
• It eradicate over burden of the jails.
• It is also economical to the State. The cost of expenditure of parolee also decreases.
• It creates threats on the mind of the parolee to maintain good conduct in the society.

Following are the demerits or disadvantages of parole:-

• If any negligence in the selection of the parolee, it results in serious consequences.
• Parole Board is bound to act on the aid and advice of the jail authority.
• It is not necessary that the prisoners who are maintaining their good conduct in the prisons will maintain their good conduct in the society.
• Political interference.
• Ill-treatment and doubtful behaviour by the society makes him impediment in his character development.

COMPARISON/DISTINCTION BETWEEN PROBATION AND PAROLE

Probation and parole can be differentiated on the following grounds:-

• Historical Evolution:- The system of probation owes its origin to John Augustus of Boston (U.S.A.) around 1841 whereas the system of parole came into existence much later somewhere around 1900.
• Punitive Reaction:- In probation, there is no punitive reaction to the crime. It is purely a treatment of offender. But in parole, the punitive reaction to the crime is present. Few part of sentence is served i.e. punitive.
• Nature:- Probation is judicial in nature whereas parole is quasi-judicial in nature and civilized or respected members of society constitute Parole Board.
• Sentence:- In probation, no such formal penalty is imposed, if imposed is not executed. But parole is granted after serving a part of sentence in prison.
• Substitute for Punishment:- Probation is granted as a substitute of the punishment. But parole is granted after completing a part of sentence.
• Punishment and Treatment:- Probation is only a treatment in which the sentence is suspended. But parole implies both punishment and treatment.
• Stage:- Probation is probably the first stage of correctional scheme whereas parole is the last stage of correctional scheme.
• Stigma or Disqualification:- No stigma in case of probation because use no sentence whereas a prisoner released on parole suffers stigmatization as a convicted criminal in the society.

CONCLUSION

Probation in which the offender is given a conditional release under supervision before a custodial sentence but parole is a conditional release of offenders under supervision after a custodial sentence. Generally speaking that the purpose of probation is to keep delinquent away from evil consequences and offer him an opportunity leads socially useful life without violating the law and as of all methods of treatment is the ultimate rehabilitation of the offender in the community.

It is difficult to define parole in terms of a single precise concept. It is an integral part of the total correctional process. In a sense parole is a method of selectivity releasing offenders from institutions, under supervision in the community, whereby the community is afforded continuing protection while the offender is making his adjustment and beginning his contribution to society. Parole is granted to a prisoner under certain special circumstances. It is subjected to certain limitations and conditions imposed by the releasing authority.

ENDNOTES

[1] Paranjape N.V. Prof., Criminology and Penology with Victimology, 16^th Edition, Central Law Publications,     Allahabad, 2014, p.573.

[2] Taft R. Donald, Criminology (4^th Ed.) p.375.

[3] AIR 1963 SC 1088.

[4] AIR 2006 SC 3051.

[5] Taft R.Donald, Criminology (4^th Ed.) p.485.

[6] Gillin J.L., Criminology and Penology (3^rd Ed.) p.339.

[7] AIR 1987 SC 1383.

[8] (2002) 2 SCC (Cri.) 504.

[9] Paranjape N.V. Prof., Criminology and Penology with Victimology, 16^th Edition, Central Law Publications,     Allahabad, 2014, p. 571.

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Prisoner’s Rights under the Constitution of India

Constitution of India does not expressly provide the provisions related to the prisoners’ rights but in the case of T.V. Vatheeswaran v. State of Tamil Nadu,[3] it was held that the Articles 14, 19 and 21 are available to the prisoners as well as freemen. Prison walls do not keep out fundamental rights.

Article 14 of the Constitution of India says that the State shall not deny to any person equality before law or the equal protection of laws within the territory of India. Thus Article 14 contemplated that like should be treated alike, and also provided the concept of reasonable classification. This article is very useful guide and basis for the prison authorities to determine various categories of prisoners and their classifications with the object of reformation.[4]

Article 19 of the Constitution of India guarantees six freedoms to the all citizens of India. Among these freedoms certain freedoms cannot enjoyed by the prisoners because of the very nature of these freedoms. But the “freedom of speech and expression”[5] and “freedom to become member of an association”[6]

Article 21 of the Constitution of India says that No person shall be deprived of his life or personal liberty except according to procedure established by law. This Article stipulates two concepts i.e., right to life and principle of liberty. By Article 21 of the Indian Constitution it is clear that it is available not only for free people but also to those people behind the prison. Following are the rights of prisoners which are implicitly provided under the Article 21 of the Constitution of India:-

• Right of inmates of protective homes,[7]
• Right to free legal aid,[8]
• Right to speedy trial,[9]
• Right against cruel and unusual punishment,[10]
• Right to fair trial,[11]
• Right against custodial violence and death in police lock-ups or encounters,[12]
• Right to live with human dignity,[13]

Apart from these rights of prisoners Constitution of India also provides following rights to the prisoners:-

• Right to meet friends and consult lawyer,[14]
• Rights against solitary confinement, handcuffing & bar fetters and protection from torture,[15]
• Right to reasonable wages in prison.[16]

Prisoner’s Rights under the Prisons Act, 1894

Prisons Act, of 1894 is the first legislation regarding prison regulation in India. This Act mainly focus on reformation of prisoners in connection with the rights of prisoners. Following Sections of the Prisons Act, 1894 are related with the reformation of prisoners:-

• Accommodation and sanitary conditions for prisoners,[17]
• Provision for the shelter and safe custody of the excess number of prisoners who cannot be safely kept in any prison,[18]
• Provisions relating to the examination of prisoners by qualified Medical Officer,[19]
• Provisions relating to separation of prisoners, containing female and male prisoners, civil and criminal prisoners and convicted and undertrial prisoners,[20]
• Provisions relating to treatment of undertrials, civil prisoners, parole and temporary release of prisoners.[21]

In the year of 2016 the Parliament has been passed the Prisons (Amendment) Bill, 2016 to amend the Prisons Act, 1894 with a view to provide protection and welfare of the prisoners.

Conclusion

It can be said that the prisoners are also entitled to all his fundamental rights while they are behind the prisons. Indian Constitution does not expressly provides for the prisoners’ rights but Articles 14, 19 and 21 implicitly guaranteed the prisoners’ rights and the provisions of the Prisons Act, 1894 contains the provisions for the welfare and protection of prisoners. The Court has ruled that it can intervene with prison administration when constitutional rights or statutory prescriptions are transgressed to the injury of the prisoner. Supreme Court in many cases held that prisoner is a human being, a natural person and also a legal person. Being a prisoner he does not cease to be a human being, natural person or legal person. Conviction for a crime does not reduce the person into a non person, whose rights are subject to the whim of the prison administration and therefore, the imposition of any major punishment within the prison system is conditional upon the absence of procedural safeguards.

Endnotes

[1] (2000) 5 SCC 712: AIR 2000 SC 2083.

[2] Jain M.P., “Indian Constitutional Law”, 5^th Edition, Vol. 1, Wadhwa and Company, Nagpur, 2003, p.1295.

[3] AIR 1983 SC 361 : (1983) 2 SCC 68.

[4] Chowdhury Roy Nitai, “Indian Prison Laws and Correction of Prisoners”, Deep and Deep Publications, New Delhi, 2002, p.75.

[5] Article 19(1)(a) of the Constitution of India.

[6] Article 19(1)(c) of the Constitution of India.

[7] Upendra Baxi v. State of U.P., (1983) 2 SCC 308.

[8] M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544.

[9] Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81.

[10] Jagmohan Singh v. State of U.P., AIR 1973 SC 947.

[11] Rattiram v. State of M.P., (2012) 4 SCC 516.

[12] D.K. Basu v. State of W.B., (1997) 1 SCC 416.

[13] Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.

[14] Sunil Batra v. Delhi Administration, AIR 1980 SC 1579.

[15] Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535.

[16] People’s Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.

[17] Section 4 of the Prisons Act, 1894.

[18] Section 7 of the Prisons Act, 1894.

[19] Section 24(2) of the Prisons Act, 1894.

[20] Section 27 of the Prisons Act, 1894.

[21] Sections 31 and 35 of the Prisons Act, 1894.

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Order VI of the Code of Civil Procedure, 1908 deals with pleadings in general. Rule 1 defines pleading, while Rule 2 lays down the fundamental principles of pleadings. Rules 3 to 13 require the parties to supply necessary particulars. Rules 14 and 15 provide for signing and verification of pleadings. Rule 16 empowers a Court to strike out unnecessary pleadings. Rules 17 and 18 contain provisions relating to amendment of pleadings.

As per Rule 1 of Order VI of the Code of Civil Procedure, 1908, pleading is defined as plaint or written statement. It is important to know here the meaning of plaint and written statement. Plaint is the statement of the plaintiff containing grievances in order to initiate an action in a court of law. It helps the court to determine the real nature of the suit.(4) Written statement is the statement or defence of the defendant by which he either admits the claim of the plaintiff or denies the allegations or averments made by the plaintiff in his plaint.(5)

Object and Importance of Pleadings
In the leading case of Throp v. Holdsworth,(6) Jessel, M. R. stated:- “The whole object of pleadings is to bring parties to an issue, and the meaning of the rules (relating to pleadings) was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”

The object of pleadings are – (i) to bring the parties to definite issues; (ii) to prevent surprise and miscarriage of justice; (iii) to avoid unnecessary expense and trouble; (iv) to save public time; (v) to eradicate irrelevancy; and (vi) to assist the Court.
Importance of pleading cannot be underestimated. Jacob states, “Pleadings do not only define the issues between the parties for the final decision of the court at the trial, they manifest and exert their importance throughout the whole process of the litigation.” Pleadings provide a guide for the proper mode of trial. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They also determine the range of admissible evidence which the parties should adduce at the trial. They also lay down limit on the relief that can be granted by the Court.(7)

Rules of Pleadings
For the proper understanding of rules of pleadings it may be divided into two heads:-
(A) Fundamental or Basic Rules; and (B) Particular or Other Rules
(A) Fundamental or Basic Rules of Pleadings:- Sub-rule (1) of Rule 2 of Order VI of the Code of Civil Procedure, 1908, lays down the fundamental principles of pleadings. It reads as under:-
“Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.”

From the above provision it can be said that following are the fundamental or basic rules of pleadings:-
(1) Pleadings should state facts and not law; (2) The facts stated in pleadings should be material facts; (3) Pleadings should not state the evidence; and (4) The facts in pleadings should be stated in a concise form.

Now these rules are discussed in details one by one:-
(1) Pleadings should state facts and not law:- It is the first fundamental rule of pleadings. It says that pleadings should state only facts and not law. In the case of Kedar Lal v. Hari Lal,(8) it was held that it is the duty of the parties to state only the facts on which they rely upon their claims. It is for the Court to apply the law to the facts pleaded. In the case of Gouri Dutt Ganesh Lall Firm v. Madho Prasad,(9) it was held that the law of pleading may be tersely summarized in four words; “Plead facts not law.”
In Ram Prasad v. State of M.P.,(10) it was held that a mixed question of law and fact, however, should be specifically pleaded. Again in Union of India v. Sita Ram Jaiswal,(11) the Court held that a point of law which is required to be substantiated by facts should be pleaded with necessary facts.

(2) The facts stated in pleadings should be material facts:- It is the second fundamental rule of pleadings. It says that pleadings should contain a statement of material facts and material facts only. Here one most important question is arose i.e. what is the meaning of the term “material facts”. This term has not been defined in the Code of Civil Procedure, 1908. But the Court defined this term in many judicial pronouncements. Like in the case of Union of India v. Sita Ram,(12) the court said that “material facts” means all facts upon which the plaintiff’s cause of action or the defendant’s defence depends, or in other words, all those facts which must be proved in order to establish the plaintiff’s right to relief claimed in the plaint or the defendant’s defence in the written statement. Again in the case of Udhav Singh v. Madhav Rao Scindia,(13) the Supreme Court said that the term material fact means “All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts.”
Again in Virender Nath v. Satpal Singh,(14) the Supreme Court held that:- “The phrase ‘material facts’ may be said to be those facts upon which a party relies for his claim or defence. In other words, ‘material facts’ are facts upon which the plaintiff’s cause of action or the defendant’s defence depends. What particulars could be said to be ‘material facts’ would depend upon the fats of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by as the party.” In the same case the Supreme Court also said:- “A distinction between ‘material facts’ and ‘particulars’, however, must not be overlooked. ‘Material facts’ are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. ‘Particulars’, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. ‘Particulars’ thus ensure conduct of fair trial and would not take the opposite party by surprise.” The Supreme Court further said that whether a particular fact is or is not a material fact which is required to pleaded by a party depends on the facts and circumstances of each case.

(3) Pleadings should not state the evidence:- It is third fundamental rule of pleadings. It says that pleadings should contain a statement of material facts on which the party relies but not the evidence by which those facts are to be proved. The facts are of two types:-
(a) Facta probanda- the facts required to be proved (material facts); and
(b) Facta probantia- the facts by means of which they are to be proved (particulars or evidence).

The pleadings should contain only facta probanda and not facta probantia. The material facts on which the plaintiff relies for his claim or the defendant relies for his defence are called facta probanda, and they must be stated in the plaint or in the written statement, as the case may be. But the facts or evidence by means of which the material facts are to be proved are called facta probantia and need not be stated in the pleadings.

(4) The facts in pleadings should be stated in a concise form:- It is the fourth and last fundamental rule of pleadings. It says that the statements in pleadings should be stated in a concise and in brief form. In Virendra Kashinath v. Vinayak N. Joshi,(15) The words “in a concise form” are definitely suggestive of the fact that brevity should be adhered to while drafting pleadings. Of course, brevity should not be at the cost of excluding necessary facts, but it does not mean niggling in the pleadings. If care is taken in syntactic process, pleadings can be saved from tautology.

(B) Particular or Other Rules of Pleadings:- Besides the fundamental or basic rules of pleadings, there are other or particular rules of pleadings which are as follows:-

(1) Wherever misrepresentation, fraud, breach of trust, willful default or undue influence are pleaded in the pleadings, particulars with dates and items should be stated.(16)
(2) The performance of a condition precedent need not be pleaded since it is implied in the pleadings. Non-performance of a condition precedent, however, must be specifically and expressly pleaded.(17)
(3) Generally departure from pleading is not permissible, and except by way of amendment, no party can raise any ground of claim or contain any allegation of fact inconsistent with his previous pleadings.(18)
(4) A bare denial of a contract by the opposite party will be construed only as a denial of factum of a contract and not the legality, validity or enforceability of such contract.(19)
(5) Documents need not be set out at length in the pleadings unless the words therein are material.(20)
(6) Wherever malice, fraudulent intention, knowledge or other condition of the mind of a person is material, it may be alleged in the pleading only as a fact without setting out the circumstances from which it is to be inferred.(21) Such circumstances really constitute evidence in proof of material facts.
(7) Whenever giving of notice to any person is necessary or a condition precedent, pleadings should only state regarding giving of such notice, without setting out the form or precise term of such notice or the circumstances from which it is to be inferred, unless they are material.(22)
(8) Implied contracts or relations between persons may be alleged as a fact, and the series of letters, conversations and the circumstances from which they are to be inferred should be pleaded generally.(23)
(9) Facts which the law presumes in favour of a party or as to which the burden of proof lies upon the other side need not be pleaded.(24)
(10) Every pleading should be signed by the party or one of the parties or by his pleader.(25)
(11) A party to the suit should supply his address. He should also supply address of the opposite party.(26)
(12) Every pleading should be verified on affidavit by the party or by one of the parties or by a person acquainted with the facts of the case.(27)
(13) A Court may order striking out a pleading if it is unnecessary, scandalous, frivolous, vexatious or tends to prejudice, embarrass or delay fair trial of the suit.(28)
(14) A Court may allow amendment of pleadings.(29)
(15) Forms in Appendix A of the Code should be used wherever they are applicable. Where they are not applicable, forms of like nature should be used.(30)
(16) Every pleading should be divided into paragraphs, numbered consecutively. Each allegation or averment should be stated in a separate paragraph. Dates, totals and numbers should be written in figures as well as in words.(31)

Amendment of Pleadings
Amendment is the formal revision or addition or alteration or modification of the pleadings. Provisions for the amendment of pleadings are intended for promoting the ends of justice and not for defeating them. Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deals with provisions regarding amendment of pleadings and failure to amend after order respectively. Rule 17 of the Code of Civil Procedure, 1908 provides that, “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Proviso to the Rule 17 of Order VI of Code of Civil Procedure, 1908 as inserted by the Code of Civil Procedure (Amendment) Act, 2002 restricts and curtails power of the Court to allow amendment in pleadings by enacting that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

Amendment of pleadings when granted:- Amendment of pleadings can be granted by the Court in two situations namely, (i) where the amendment is necessary for the determination of the real question in controversy; and (ii) can the amendment be allowed without injustice to the other side.

Amendment of pleadings when refused:- Amendment of pleadings can be refused in many circumstances. Following are the situations or circumstances when amendment of pleadings can be refused by the Court:-(32)
(1) When the proposed amendment is unnecessary.
(2) When the proposed amendment causes an injury to the opposite party which cannot be compensated for by costs.
(3) When the proposed amendment changes the nature of the case.
(4) When the application for amendment is not made in good faith.
(5) When there has been an excessive delay in filing the amendment application.

Failure to amend:- Rule 18 of Order VI of Code of Civil Procedure, 1908 deals with this issue. It provides that if a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within 14 days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such 14 days, as the case may be, unless the time is extended by the Court.

Conclusion
Pleadings are the backbone of legal profession. It is the foundation stone on which case of a party stands. The case of a party must be set out in the pleadings. Pleadings do not only define the issues between the parties for the final decision of the court at the trial, they manifest and exert their importance throughout the whole process of the litigation. Pleadings provide a guide for the proper mode of trial. They demonstrate upon which party the burden of proof lies, and who has the right to open the case. They also determine the range of admissible evidence which the parties should adduce at the trial. They also lay down limit on the relief that can be granted by the Court.
Four fundamental rules of pleading are; (1) Pleadings should state facts and not law; (2) The facts stated in pleadings should be material facts; (3) Pleadings should not state the evidence; and (4) The facts in pleadings should be stated in a concise form. The main points to be considered before a party is allowed to amend his pleading are: firstly, whether the amendment is necessary for the determination of the real question in controversy; and secondly, can the amendment be allowed without injustice to the other side.

Endnotes

1. AIR 1957 SC 133.
2. Srivastava K. K. Dr., The Law of Pleadings, Drafting and Conveyancing, 8^th Edition, Central  Law Agency, Allahabad, 2014, p. 1.
3. Mogha’s Law of Pleadings (1983) at p. 1.
4. Srivastava K. K. Dr., The Law of Pleadings, Drafting and Conveyancing, 8^th Edition, Central  Law Agency, Allahabad, 2014, p. 126.
5. Ibid, p. 141.
6. (1876) 3 Ch D 637.
7. Takwani C. K., Civil Procedure with Limitation Act, 1963, 7^th Edition, Eastern Book Company, Lucknow, 2013, pp. 194-195.
8. AIR 1952 SC 47 at p. 51: 1952 SCR 179.
9. AIR 1943 PC 147: 209 IC 192.
10. (1969) 3 SCC 24: AIR 1970 SC 1818.
11. (1976) 4 SCC 505: AIR 1977 SC 329.
12. Ibid.
13. (1977) 1 SCC 511: AIR 1976 SC 744.
14. (2007) 3 SCC 617: AIR 2007 SC 581.
15. (1999) 1 SCC 47 at p.52: AIR 1999 SC 162 at p. 165.
16. Rule 4 of Order VI of the Code of Civil Procedure, 1908.
17. Rule 6 of Order VI of the Code of Civil Procedure, 1908.
18. Rule 7 of Order VI of the Code of Civil Procedure, 1908.
19. Rule 8 of Order VI of the Code of Civil Procedure, 1908.
20. Rule 9 of Order VI of the Code of Civil Procedure, 1908.
21. Rule 10 of Order VI of the Code of Civil Procedure, 1908.
22. Rule 11 of Order VI of the Code of Civil Procedure, 1908.
23. Rule 12 of Order VI of the Code of Civil Procedure, 1908.
24. Rule 13 of Order VI of the Code of Civil Procedure, 1908.
25. Rule 14 of Order VI of the Code of Civil Procedure, 1908.
26. Rule 14-A of Order VI of the Code of Civil Procedure, 1908.
27. Rule 15 of Order VI of the Code of Civil Procedure, 1908.
28. Rule 16 of Order VI of the Code of Civil Procedure, 1908.
29. Rule 17 of Order VI of the Code of Civil Procedure, 1908.
30. Rule 3 of Order VI of the Code of Civil Procedure, 1908.
31. Rule 2(2) and 2(3) of Order VI of the Code of Civil Procedure, 1908.
32. Srivastava K. K. Dr., The Law of Pleadings, Drafting and Conveyancing,8^th Edition, Central Law Agency, Allahabad, 2014, p. 80.

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Space law comprises all the law that may govern or apply to outer space and activities in and relating to outer space…’Space Law’ is the Law of Space, and can range from the terms of an insurance contract in respect of a particular space launch to the broadest of principles that govern how states act in outer space. Some ‘Space law’ is therefore simply the application of the principles of existing domestic law such as contract to a new field activity. ‘Space Law’ is particular law, developed to deal with the practical problems of the use and exploration of outer space.(1)

In other words the space law may be defined as “the body of regulations in international that governs conduct in and related to areas of space above Earth’s lower atmosphere.”(2)

It can be said that the Space law can be described as that branch of law which is applicable to and governing the space law related activities. The space law is that area of law which includes all the national and international conduct in the outer space.

Outer space….shall be free for exploration and use by all States…in accordance with international law.(3) States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law.(4)

LAW RELATING TO SPACE

It may be discussed under two heads:-

(A) Law relating to space at International level.

(B) Law relating to space at National level (i.e., law relating to space in India).

(A) Law relating to Space at International Level:- Space law is a creature of international law which is a combination of customs and treaties. An example of customary space law is the principle of free passage in space established when the USSR launched Sputnik into orbit and crossed over territories other than its own without protest from those countries.(5) In the year 1959, the United Nations created the United Nations Committee on the Peaceful Uses of Outer Space. The United Nations Committee on the Peaceful Uses of Outer Space created two sub- committees, the Scientific and Technical sub-committee and Legal sub-committee. It can be said that the United Nations Committee on the Peaceful Uses of Outer Space has been a primary forum for discussion and negotiate of international agreements on outer space. There were five international treaties which have been negotiated and drafted in the United Nations Committee on the Peaceful Uses of Outer Space:-

(1) The Outer Space Treaty of 1967, (2) The Rescue Agreement of 1968, (3) The Liability Convention of 1972, (4) The Registration Convention of 1975, and (5) The Moon Treaty of 1979.

(1) The Outer Space Treaty of 1967:- The primary treaty governing the law of space is the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies or more commonly known as the Outer Space Treaty of 1967. The Outer Space Treaty was created shortly after United Nations Committee on the Peaceful Uses of Outer Space set forth its fundamentals governing the use of outer space and incorporates and expands upon those fundamentals and serves as the parent for the subject matter of the other four space law treaties. The overriding principle of the Outer Space Treaty is that space is the common heritage of all mankind and that all nations have access to space and the resources contained within it and that the territory in outer space, on the moon or other celestial bodies cannot be claimed by any nation. This prohibition does not extend to private individuals or legal entities.(6)

The Outer Space Treaty specifically bans the placement of nuclear weapons or any other weapon of mass destruction in the orbit of Earth or on any celestial body. It does not specifically address the placement of non-nuclear weapons or those that are not capable of causing mass destruction.

(2) The Rescue Agreement of 1968:- The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space or more commonly known as the Rescue Agreement expands on the duties introduced in the Outer Space Treaty to render assistance to astronauts in distress. The Rescue agreement delineates the requirements of a State to come to the aid of astronauts in distress.(7)

(3) The Liability Convention of 1972:- The Convention on International Liability for Damage Caused by Space Objects or more commonly known as the Liability Convention expands the principles of liability for damage caused by space objects introduced in the Outer Space Treaty. Two scenarios are envisioned by the Liability Convention:- (a) a space object causes damage to the surface of the earth or an aircraft in flight; or (b) a space object causes damage some place other than the surface of the earth i.e., outer space or another celestial body.(8)

(4) The Registration Convention of 1975:- The Convention on Registration of Objects Launched into Outer Space or more commonly known as the Registration Convention builds on the principle of the Outer Space Treaty concerning the registration of objects launched by a State. The impetus behind the Registration Convention is to ensure the peaceful use of outer space by creating a duty for States to create a registry of spacecraft that it launches and to make that registry available for public inspection.(9)

(5) The Moon Treaty of 1979:- The final and most controversial child of the Outer Space Treaty is the Agreement Governing the Activities on the Moon and Other Celestial Bodies or more commonly known as the Moon Treaty. The Moon Treaty takes the concept of non-appropriation by nations from the Outer Space Treaty and closes the loophole for private entities barring them from laying claim to the moon or other celestial bodies and extending that prohibition to resources as well. The Moon Treaty expands the “common heritage” language and suggest that not only is extraterrestrial property and the resources contained within belong to all mankind, but the technology and means to obtain those resources must be shared with who could not otherwise obtain it on their own. This suggests that intellectual property rights as well as real property and resources rights are implicated as well.(10)

(B) Law relating to space at National level (i.e., law relating to space in India):- Space legislation in India is the ultimate need of the nation, especially because India is progressively looking forward to privatize and commercialize space assets, expand and develop capability in space exploration and scientific discovery, commercialize its competence to build satellites and offer launch service from its launch vehicles.(11)

India is a party to all the above significant international treaties i.e., (1) The Outer Space Treaty of 1967, (2) The Rescue Agreement of 1968, (3) The Liability Convention of 1972, (4) The Registration Convention of 1975, and (5) The Moon Treaty of 1979.

As far as India is concerned, India has a tremendous heritage in the field of scientific research. In this juncture, we must thank our Prime Minister, Pandit Jawaharlal Nehru for his vision relating to the space law in India. The space revolution in India began with the launching of small sounding rockets from the Thumba Equitorial Rocket Launching Station (TERLS) in the year 1963 under the support of the United Nations. In 1975, India entered in to the space age by the launching of the first scientific satellite namely Aryabhatta on 19 April 1975 from the former Soviet Cosmodrome at Baikanur. The launching of SLV-3 in July 1980 brought India more close to the dream of achieving indigenous satellite launch capability. With the launch of Polar Satellite Launch Vehicle (PSLV) on 15 October 1994, India achieved the indigenous satellite launch capability. India has now specially made PSLV and Geosynchrous Satellite Launch Vehicle (GSLV).(12)

The space and space related matters in India are regulated by legal rules belonging to domestic laws. This is because India does not have any legislation on space and space related matters. At present the position in India is that space industry is legally determined by the Indian Constitution, 1950. Articles mentioned in the constitution of India foster respect for International Law such as Article 51 of the Indian Constitution imposes on the state obligation to strive for the promotion of international peace and security, including maintaining just and reasonable relation between nations, respect for international law and treaty obligation, and settlement of international dispute by arbitration. Under Art 73 the executive power of the union extends a) to the matter relating to which parliament has power to make laws, b) to exercise of such rights, authority and jurisdiction as one exercisable by the Government of India by virtue of any treaty or agreement.(13)

Our space legislation should incorporate (i) the legal issues connected to launch services (space transportation systems); (ii) the legal issues connected to satellite telecommunications, including satellite broadcasting; (iii) analyze issues associated to earth observation services as well as data processing and distribution; (iv) satellite navigational systems and (v) analyzes the intellectual property.

CONCLUSION

Space law can be described as that branch of law which is applicable to and governing the space law related activities. The space law is that area of law which includes all the national and international conduct in the outer space. India does not have any legislation on space and space related matters. At present the position in India is that space industry is legally determined by the Indian Constitution, 1950. Articles mentioned in the constitution of India foster respect for International Law such as Article 51 of the Indian Constitution imposes on the state obligation to strive for the promotion of international peace and security, including maintaining just and reasonable relation between nations, respect for international law and treaty obligation, and settlement of international dispute by arbitration.

ENDNOTES

(1). Francis Lyall & Paul B. Larsen, Space Law: A Treatise 2 (2009).

(2). Definition of Space Law, Encyclopedia Britannica Online: Academic Edition 2011, http://www.britannica.com/EBchecked/topic/557401/space-law

(3). Outer Space Treaty Article I.

(4). Ibid, Article III.

(5). Listner J. Michael, International Space Law: An Overview of Law and Issues, New Hampshire Bar Journal, Spring 2011, p. 62.

(6). Ibid, p. 62.

(7). Ibid, p. 63.

(8). Ibid, p. 63.

(9). Ibid, p. 64.

(10). Ibid, p. 64.

(11). Kaushik Dhar Mr., Need of Space Law in India, NALSAR University of Law, Hyderabad, p. 1, available at http://works.bepress.com/kaushikdhar/1/

(12). Indian Space Research Organization (ISRO); www.isro.org

(13). Kaushik Dhar Mr., Need of Space Law in India, NALSAR University of Law, Hyderabad, p. 2, availabe at http://works.bepress.com/kaushikdhar/1/

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Export means “To send goods or services across national frontiers for the purpose of selling and realizing foreign exchange.”(1) Import means “a good or service brought into one country from another.” Exports & Imports form the backbone of international trade. The higher the value of imports entering a country, compared to the value of exports, the more negative that country’s balance of trade becomes.(2)

Why there is Need of Export?

As we know that whole world was rushing towards globalization and integration. Earlier India had not joined the race, which resulted that the economic scenario had worsened the development. At that point of time the only recourse left to India was to increase its exports to tide over the ever-increasing imports. After that India aimed to gain a considerable proportion of international business and make its presence felt on the international front. The Government announced various export promotion measures and incentives. Laws were framed to streamline the process of export and import. These laws ensured that our commitment to expansion of India’s trade remained firm. The laws and facilitation announced by the Government were not only related to export and import of goods and services, but were also directed to up gradation of technology and integration of all the departments by using latest technologies available. As we can see, e-commerce plays a very significant role in today’s trade.

The Export and Import Policy or the EXIM Policy, 1992-97 was a significant landmark in India’s economic history. For the first time, conscious effort was made to dismantle various protectionist and regulatory policies and accelerate the country’s transition towards a globally oriented economy.(3)

In the era of globalization and WTO regime, many Asian countries have achieved such remarkable export-led growth that South Korea and Taiwan are likely to be considered as developed countries by WTO. WTO is the largest body of world trade consisting of 163 member countries as on date and responsible for 96% of the world trade. It is necessary for any developing country to expand exports continuously because export growth ultimately results in creation of jobs, building up of infrastructure, economies of scale and added foreign exchange earnings. Today’s world is economic in nature and increased exports give credibility to the standing of the country in overseas market. Exports, therefore, are of importance and are considered a national priority by the Government of India.(4)

Why there is Need of Import?

As in today’s perspective there is lots of competition and because of tough competition, one country can sell only if the quality of your product is better than that of your competitors, the price most competitive and the buyers get delivery on time. In order to achieve all this, one needs to have access to international standard quality materials and capital goods.

By accepting membership of the World Trade Organization (WTO), India has become a part of the global village. New trade blocks are emerging and new world order is getting established. Regional trading arrangements (RTAs) were mushrooming and even India is negotiating bilateral agreements with various countries and regional groupings.

The area in which the imports are almost essential are defence requirements, crude oil, fertilizers, capital goods, industrial inputs like raw materials, components, consumables, spares, etc., import of samples, import of technology, import of drawing and designs, import of services etc.

Objectives of Export Import Policy:

(1). To derive maximum benefit from expanding global opportunity.

(2). To enhance economic growth by provide raw material, intermediates, consumable and capital good for production.

(3). To enhance technological strength and efficiency or Indian agriculture, industry and service.

(4). To provide consumers with goods quality product at reasonable prices.

(5). To simplify the procedural formalities and follow the expanding freely importable list.

Export & Import Policy in India:

India’s import and export system is governed by the Foreign Trade (Development & Regulation) Act of 1992 and India’s Export Import (EXIM) Policy. Imports and exports of all goods are free, except for the items regulated by the EXIM policy or any other law currently in force. Registration with regional licensing authority is a prerequisite for the import and export of goods. The customs will not allow for clearance of goods unless the importer has obtained an Import Export Code (IEC) from the regional authority.(5)

Import Policy:

The Indian Trade Classification (ITC)-Harmonized System (HS) classifies goods into three categories:

1. Restricted
2. Canalized
3. Prohibited

Goods not specified in the above mentioned categories can be freely imported without any restriction, if the importer has obtained a valid IEC. There is no need to obtain any import license or permission to import such goods. Most of the goods can be freely imported in India.

(1). Restricted Goods:

Restricted goods can be imported only after obtaining an import license from the relevant regional licensing authority. The goods covered by the license shall be disposed of in the manner specified by the license authority, which should be clearly indicated in the license itself. The list of restricted goods is provided in ITC (HS). An import license is valid for 24 months for capital goods, and 18 months for all other goods.(6)

 (2). Canalized Goods:

Canalized goods are items which may only be imported using specific procedures or methods of transport. The list of canalized goods can be found in the ITC (HS). Goods in this category can be imported only through canalizing agencies. The main canalized items are currently petroleum products, bulk agricultural products, such as grains and vegetable oils, and some pharmaceutical products.

(3). Prohibited Goods:

These are the goods listed in ITC (HS) which are strictly prohibited on all import channels in India. These include wild animals, tallow fat and oils of animal origin, animal rennet, and unprocessed ivory.

Export Policy:

Just like imports, goods can be exported freely if they are not mentioned in the classification of ITC (HS). Below follows the classification of goods for export:

1. Restricted
2. Prohibited
3. State Trading Enterprise

(1). Restricted Goods:

Before exporting any restricted goods, the exporter must first obtain a license explicitly permitting the exporter to do so. The restricted goods must be exported through a set of procedures/conditions, which are detailed in the license.

(2). Prohibited Goods:

These are the items which cannot be exported at all. The vast majority of these include wild animals, and animal articles that may carry a risk of infection.

(3). State Trading Enterprise (STE):

Certain items can be exported only through designated STEs. The export of such items is subject to the conditions specified in the EXIM policy.

References

(1) Meaning of the term  “Export”, available at: http://www.businessdictionary.com/definition/export.html,(last access on 20/03/2015)

(2) Hand Book on Foreign Trade Policy and Guide to Export & Import, The Institute of Chartered Accountants of India, Chapter 1 HISTORY OF FOREIGN TRADE at pg 2, available at: http://nbaindia.org/uploaded/Biodiversityindia/Legal/6.%20Import%20and%20Export%20(Control)%20Act,%201947.pdf, (last access on 22/03/2015)

(3) India EXIM policy- Foreign Trade Policy, available at: http://www.exim-policy.com/, (last access on 22/03/2015)

(4) Hand Book on Foreign Trade Policy and Guide to Export & Import, The Institute of Chartered Accountants of India, Chapter 1 HISTORY OF FOREIGN TRADE at pg 2, available at: http://nbaindia.org/uploaded/Biodiversityindia/Legal/6.%20Import%20and%20Export%20(Control)%20Act,%201947.pdf, (last access on 22/03/2015)

(5) Import and Export Licensing Procedures in India, available at < http://www.india-briefing.com/news/import-export-licensing-procedures-india-6804.html/#sthash.1xHyiS3G.dpuf

(6) India’s Import Policy: Procedures and Duties, available at http://www.india-briefing.com/news/import-policy-procedures-duties-8728.html/

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We have worked on more than 250 equity financing, secondaries and exits, in India, US and Singapore. We have worked on both sides of the table. Our fund formation practice is primarily focused on establishing funds in Mauritius and procuring SEBI AIF registrations for funds in India, along with drafting of documents like the contribution agreements and fund management advisory contracts. The funds have also used our support to help their portfolio companies and manage their ongoing compliance.

Our technology practice covers wide ranging verticals such as drones, artificial intelligence, bots, bitcoins, payment systems, cloud, big data and analytics, numerous mobile apps, e-commerce and traditional retail, data centres and many more.

Our infrastructure practice is currently focused on helping clients establish and invest in solar power, micro-grids, EPCs, and carbon finance initiatives. The real estate practice works with builders, aiding with legal opinions, joint developments, joint ventures, title diligences, special economic zone operations, etc. Our intellectual property practice focuses not only on the protection of various IP forms, but also on the enforcement of patents, trademarks and the like, including IP audit and trainings. Mediation and settlements are part of the CXO level advisory and working with businesses through their journey

We are loved by start-ups and accelerators alike, for the CXO level advisory and engagement provided by us via founder engagements/disengagements, funding, exits, shutdowns, layoffs, acquihires, takeovers (asset or entity), business structuring, and on the many other challenges faced by owners while running a business.

About the Essay Competition

India has historically been a highly cash dependent economy.With the recent demonetization, the movement from leather wallets to digital wallets has taken the centre stage of discussion, with liquid cash supply drying up.The financial industry is primed for massive disruption with the use of technology. Some examples of such expected disruption are in the areas of:

• Payments, with wallets, payment gateways, payment solutions etc.;
• Lending, with peer-to-peer lending, crowd funding, digital credit, loan market places;
• Personal finance, with investment, insurance, money management.

The fintech industry is regulated by a legal labyrinth, including not just the Information Technology Act, 2000 and RBI regulations, but many other laws dealing with data privacy, security and the like. As of now, the laws are catching up to address the challenges that the fintech industry is raising.

In order to encourage research and analysis, NovoJuris Legal is bringing forth this topical competition on Fintech. The competition aims to provide a platform for students of law, to express their views on various critical issues surrounding the legal and regulatory frameworks for this this industry segment.

Theme

LEATHER WALLET TO MOBILE WALLET- LEGAL CHALLENGES

The following sub-themes have been identified as requiring academic consideration in the Indian context:

1. Cash to Cashless – The Blend of Commerce and Digitisation
2. A New Approach – Traditional Banking versus Payments Banks
3. Reliance on Technology – Is the Financial Sector Safe?

Important Dates

• Submission Date – The essays must be submitted on or before February 20, 2017.
• Declaration of the Result – The winners of the competition shall be notified by email and by declaration of results of the competition on the website of NovoJuris Legal (https://novojuris.com/) on March 12, 2017.

Prizes

1^st Prize –

• INR 10,000
• Internship at NovoJuris Legal

2^nd Prize –

• INR 8,000
• Internship at NovoJuris Legal

3^rd Prize –

• INR 6,000
• Internship at NovoJuris Legal

Eligibility

1. The competition is open to all undergraduate and postgraduate students enrolled in any law course in a recognized University/College/Institute in India.
2. Only one submission per author shall be entertained.
3. Co-authorship is not permitted.

Guidelines for Submission

1. The essays must be submitted in English only.
2. The essays should be the original work of the authors. Any kind of plagiarism will lead to disqualification.
3. The essays published elsewhere or selected/submitted for publication elsewhere shall be disqualified.
4. The name of the author should not be mentioned anywhere in the essay.
5. The word limit for the essay is 5000 – 7000 words, not including footnotes.
6. The essays should be typed in: Times New Roman, Font Size 12 and Line Spacing 1.5.
7. The footnotes must be typed in: Times New Roman, Font Size 10 and Line Spacing 1.
8. The margins should be 1” or 2.54 cm on all sides.
9. All text should be justified.
10. Every citation must follow the Harvard Bluebook, 19th Edition.

Submission Procedure

1. The essays must be sent by email to fintech.competition@novojuris.com
2. The body of the e-mail must specify the name of the author and College/Institute/University of Author.
3. The essay may be attached in ‘.doc’ or ‘.docx’ format only.
4. The participants are required to send the following details in a separate word document attached to the e-mail:

• Title of the Essay;
• Name of the Author;
• College/ Institute/University of Author
• Programme Enrolled & Year of Study of Author
• E-mail address & Contact No. of Author

Important Note

1. All original essays submitted for this competition shall become the sole property of NovoJuris Legal.
2. NovoJuris Legal shall have the right to publish the entries in the form of a journal, book, e-book.
3. A Committee of Experts shall be constituted as a Jury, to select the winning entries. The decision of the Jury shall be final and binding.
4. NovoJuris Legal possesses the right to reject entries which do not conform to the Guidelines for Submission.
5. NovoJuris Legal reserves the absolute rights to cancel, defer, or postpone indefinitely, the competition in the event of the accruing of any incident, natural or manmade.
6. In case of any dispute, the decision of NovoJuris Legal shall be final and binding.

Contact Persons

For any queries, you may leave us an e-mail at fintech.competition@novojuris.com

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