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Report No. 135

2.33. Role of courts in regard to prisoners.-

It would be appropriate to make a few observations as to why, in our proposals, the Sessions Judges and the High Courts have been invested with certain important functions connected with the protection of women in prison. The administration of justice in a civilised society (we are concerned here mainly with criminal justice) is a process which does not begin or end with the criminal prosecution. Its roots lie much earlier, and its consequences extend far beyond the court room. The criminal justice system, viewed properly, begins with the formulation of a penal statute, whether it be the Penal Code representing the general criminal law, or a special or local law concerned with this or that segment of social regulation.

Enforcement of the legislation so enacted is undertaken by the police and other law enforcement agencies, who must act in aid of the criminal statute, but in conformity with the procedure laid down by law. If a prima facie case of the violation of a penal statute is found, the matter proceeds to court and comes within the direct cognizance of the judiciary. Sentencing and alternatives to sentencing, loom large only at the end of the trial.

What happens after sentencing really carries out the objective underlying the criminal law, though it is chronologically remote from the trial and only because the court has passed a sentence or ordained any other alternative for the particular offender that the apparatus of corrections comes into operation. The court, in its turn, administers justice by applying and interpreting the criminal law. The whole is, thus, an integrated process, though the thread that runs through the entire process is not immediately perceived by those who see its working only at one of the levels.

It also bears mention that during recent years, the courts exercising writ jurisdiction have increasingly come to be concerned with what is sometimes called "prison justice". This jurisdiction they exercise usually to enforce fundamental rights, the most important being the right guaranteed by Article 21 of the Constitution, This article guarantees to every person the right to life and personal liberty, of which that person must not be deprived "except according to procedure established by law".

Unfolding the various implications of this article, and elaborating the quality of the "procedure" that must be observed before depriving any person of personal liberty, the higher judiciary in India has discharged the responsibility of enunciating various safeguards which must be complied with. Many of the judicial decisions on the subject deal with prisoners. In this manner, courts, which are most eminently qualified to deal with matters of procedure, have provided guidelines to law enforcement officials, as well as to those concerned with prisons, in regard to the treatment of prisoners and connected matters.

This not only carries out the constitutional mandate which is obvious but it also unfolds the nuances of procedure - an aspect which is worth pointing out. In this manner, the nexus between procedure and prisons is made more and more concrete by judicial decisions. Some of the important decisions in this area have been listed in Appendix II. A perusal of these pronouncements will show that the developments in this sphere have been intensive and extensive.

We believe that the proposals which we have made in this report regarding women prisoners, wherein the primary responsibility is placed on the shoulders of the judiciary, would be regarded as furthering and promoting the approach manifest in the judicial pronouncements on the subject, which deal with the treatment to be accorded to prisoners in the light of the constitutional requirement of "procedure established by law" and show the essential nexus between courts and prisons.

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