Rights of Prisoners in Bangladesh: A Legal Analysis

Tanjila Tamanna1

Abstract

The rights of the prisoners are still not recognized as other rights are
recognized by the state and international instruments in Bangladesh.
In Bangladesh, the prison system still follows the same out-dated
statutes and regulations of the British rulers. This paper explores the
issue of prisoners‟ rights. The laws governing prisons in Bangladesh,
namely, The Prisons Act of 1894, its accompanying Rules, and a
range of internally issued circulars, notices and orders which together
form The Bengal Jail Code of 1920. Here, I try to draw the attention
of the reader to know about the most invisible population and their
legal status under the perception of law. In addition, to cover broader
issues like legal status of a prisoner and prisoners‟ rights litigation
and the later issues include recommendations and some ethical
reflection with an aim to open a new prospect for prisoners‟ rights.
Finally conclude the paper with hope that it will reduce prisoners‟
sense of injustice and creating their own citizenship room as
individual with the spirit of dignity.

Keywords: Prison, Prisoners‟ Rights, Litigation, Fundamental

Rights, Constitution, Authority.

Introduction

When we imagine a courtroom first thing always comes in our mind is the
portraying of the blindfold lady with sword and scales which signify the
impartial supervision of justice and its principal purpose is to ensure
justice under law. Here raises a question whether the responsibility of law
ends by ensuring the punishment only. From my perspective something is
left and this is the responsibility of law and the society to protect the
dignity of a convicted person who is mostly known as prisoner. Sometimes
we forget that they are human beings like us and argue that prisoners don‟t
have or should not be allowed to enjoy their human rights because they are
sinners. From our child hood we all are taught that hate the sin, not the
sinner but in reality we always hate the sinners who are mostly known as

1
The author is a Lecturer at Department of Law and Human Rights of University of Development
Alternative, Dhaka, Bangladesh. She has been serving as a Lecturer in UODA since November
09, 2016 to Present. She completed her LL.B. (Hon‟s.) from BRAC University and LL.M. from
Southeast University. Her fields of research interest in subjects like Human Rights,
Constitutional Law, Labour Law and Criminal Law. Her email address is
tanjila.tamanna@yahoo.com
78 BiLD Law Journal- Vol. III, Issue I

prisoners. This paper is concerned with the extent to which rights litigation
may improve the quality of the lives of defenceless and downgraded
prisoners. At this point I try to focus on the effects of certain fundamental
rights contained in the Constitution of People‟s Republic of Bangladesh on
prisoners. I am of the view that rights, „if purposively interpreted and
consistently enforced, are nevertheless capable of making invaluable
contributions to the pursuit of social justice‟.2Moreover, it may be argued
that how far the prisoners‟ rights extend and how far it can be possible to
ensure the application of their rights. In this paper, I will have an
endeavour to narrowly focus on prisoner‟s legal status in the eye of the
law. Prisoners are very rarely given reasons for decisions that affect them,
however directly; nor do they have an opportunity to make representations
before these decisions are taken.3

Finally the most prominent feature of the issues plotted in this paper is the
absence of supervision by the courts, to a lesser role of Legislature, leaving
so much at the discretion of the prison authorities and recognize those
rights which are guaranteed for the prisoners are silent behind prison cells.

Objective of the Study

This paper explores the issues of prisoners‟ rights. The principal objective
of this study is to draw the attention of the reader to know about the most
invisible population and their legal status under the law. The specific
objective of this study has been stated below:

 To know the present situation of the legal rights of the prisoners in

Bangladesh.
 To find out the causes of violation of prisoners‟ rights.
 To suggest measures for the improvement of the prisoners‟ condition
in Bangladesh.

Methodology of the Study

The methodology includes qualitative and quantitative methods but in this

paper the qualitative method has been mostly utilized. Due to the limited

2
Marius Pieterse, „The Potential of Socio-Economic Rights Litigation for the Achievements of
Social Justice: Considering the Example of Access to Medical Care in South Africa Prisons‟
(2006)50(2) Journal of African Law 119.
3
Graham Zellick, „Prisoners' Rights in England‟ (1974) 24(4)The University of Toronto Law
Journal 345.
Rights of Prisoners in Bangladesh 79

time span, I could not able to utilize the quantities method broadly. To get
in depth knowledge about the subject document study, observational study,
descriptive study and case study method has also been used. To reach to
the conclusion of the critical study of the Bangladeshi Laws relating to
prisoners‟ rights the qualitative evaluative method has been followed.

Prisoners’ Law: From Antiquity

Bangladesh inherited present prison system from the British as colonial

legacy. It is noted that prisons still follow the out-dated statutes of the
British colonial rulers, which were framed in the 19th century. The main
objective of the prison system was the confinement and safe custody of
prisoners through suppressive and disciplinary measures and this is a
humanitarian alternative to harsh and brutal penal methods of the dark
ages.4Until 19th century that the reformatory movements took practical
shape when for the first time classification, separation, individualized
treatment and vocational training of inmates, were given due
consideration.5It was the law of the time which never allowed any state
prisoner to even think of his fundamental rights that he or she could not be
behind the bar at one time or released from the commands of the authority
at the other on the will of the controllers.6After the complete domination
over sub-continent there was a requirement to amend the law relating to
prisons in British India and to provide rule for the regulation of such
prisons which under their control an Act No. IX of 1894 was passed by the
Governor General of India in Council on the 22nd March.7The Prisons Act
was enforced on 1st July1894 comprised twelve chapters and sixty two
sections on establishment, maintenance, duties of prison staff and
admission, discipline, rights and obligations of prisoners.8Act III of 1900,
the Prisoners Act received the assent of the Governor General on 2nd
February 1900 came into force at once and The Act included nine parts
and fifty-three sections had the guidance on admission, removal,
discharge, attendance in court and employment of prisoners etc.9The origin
of jail administration based on a comprehensive law dates back to 1864
when the Government of Bengal framed a detailed jail code and Until
1864, jail administration was carried out by means of sporadically issued

4
Mazhar Hussain Bhutta, Muhammad Siddique Akbar, “Situation of Prisons in India and
Pakistan: Shared Legacy, Same Challenges” (2012) 27(1) South Asian Studies 172.
5
Ibid.
6
Ibid 173.
7
Ibid.
8
Ibid.
9
Ibid.
80 BiLD Law Journal- Vol. III, Issue I

circular letters and general orders.10 There had been an outcome on no

uniformity in the jail procedure.

However, The Bengal Jail Code of 1864 developed in the subsequent years
into a compendium of rules and regulations issued from time to time and
meant for the superintendence and management of all the jails including
the subsidiary jails throughout the province.11The Bengal Jail Code of
1864 that is in operation in Bangladesh today also draws extensively on
the provisions of a number of Acts such as the Prisons Act (No. IX of 1894
as amended), Prisoners Act (No. III of 1900 as amended), Identification of
Prisoners Act 1920 with aim to regulate the management of jail
establishments, confinement and treatment of the prisoners therein, and the
maintenance of discipline among them.12 The Bengal Jail Code includes
clear instructions that the provisions of the civil procedure code (Act V of
1908), criminal procedure code (Act V of 1898 as amended) and the Penal
Code (Act XIV of 1860 as amended), which relate to the confinement of
prisoners, execution of sentences, prisoners‟ appeals, lunatics, and the like,
must also be complied with.13

The Sighting of Prisoner’s Legal Status

All of new rights and changes in prison programs and philosophy leave us
with a new set of questions and those questions are How far do prisoners‟
rights extend, and to what end do they lead? And the bottom line remains
the same: What difference does it make?14To make a difference we have to
identify the legal status of each prisoner. First of all, „Legal right is defined
in jurisprudence as an interest recognized and protected by a rule of right
and it is any interest in respect of which is a duty, and disregard of which
is a wrong‟.15 „To claim a right is to make an assertion of a duty on another
that entails either an act of performance or forbearance on the other‟s
part‟.16 Consequently, „the legal rights of a prisoner can be understood as
legally enforceable claims requiring the accomplishment, or restraint, of
certain actions on the part of the prison service‟.17
10
Ibid.
11
AMM Shawkat Ali, Jail Administration, <http://www.banglapedia.org/HT/J_0031.htm, > access
at 12/1/2018.
12
Ibid.
13
Ibid.
14
Geoffrey P. Alpert (ed), Legal Rights of Prisoners (Saga Publication, 1st ed, 1980) 15.
15
Fazal Khan v. State(1962) 14 DLR (SC) 235.
16
Davit Scott, „The Politics of Prisoner Legal Rights‟ (2013) 52 (3) The Howard Journal of
Criminal Justice 234.
17
Ibid.
Rights of Prisoners in Bangladesh 81

The rules of the prison were ambiguous and unspecific and due to this
prisoners are being unaware of their content and therefore, unable to
ensure their impartial application of their rights. The nature and extent of
prisoners‟ rights have been debated in courts and among professionals for
long time. „Judges are concerned with protecting and conserving those
values, institutions, interests and relationships upon which society is
founded and unsurprisingly, are naturally sympathetic to such institutions
that uphold and enforce the law, such as prison administrators‟18. The
Universal Declaration of Human Rights (UDHR) states that 'all human
beings are born free and equal in dignity and rights'19 Like all other
countries the Government of Bangladesh and the people who belong to
this cultured society never try to recognize the rights of the prisoner as a
human being which are guaranteed for them by the state and international
instruments. The International Covenant on Civil and Political Rights
which preserved the right of prisoner as „All persons deprived of their
liberty shall be treated with humanity and with respect for the inherent
dignity of the human person‟.20It applies to all persons deprived of their
liberty including prisoners also.

Part III of our Constitution contains number of rights which is called

fundamental rights. The framers of the Constitution were particularly
impressed with the formulation of the basic rights in the Universal
Declaration of Human Rights and if we make comparison between parts
III of the Constitution with the Declaration, we shall find that most of the
rights enumerated in the Declaration have found place in our Constitution
as fundamental rights.21 The Declaration followed two Covenants –
Covenant on Civil and Political Rights and Covenant on Economic, Social
and Cultural Rights and our courts will not enforce those Covenants as
treaties and Conventions, even if ratified by the State, are not part of the
Corpus juries of the State unless these are incorporated in the municipal
legislation.22 However the court can look into these Conventions and
Covenants as an aid to interpretation of the Provision of Part III
particularly to determine the rights implicit in the rights like right to life
and the right to liberty.23

18
Ibid 238.
19
The Universal Declaration of Human Rights, GA Res 217(III),UN GAOR,3rd Sess,183rd plenary
meeting, UN Doc A/810(10 December 1948) Article 1.
20
The International Covenant on Civil and Political Rights, open for signature 19 December 2009,
UNTS vol. 999 p. 171 and vol. 1057, p. 407(entered into force 23 March 1976) Article 10.
21
Mahmudul Islam, Constitutional Law of Bangladesh (Mullick Brothers, 2nded, 2010) 88.
22
Ibid 89.
23
Ibid.
82 BiLD Law Journal- Vol. III, Issue I

In the eye of law, prisoners are persons not animals and Prison houses are
part of State and the Constitution cannot be held at bay by jail officials and
when Part III is invoked by a convict when a prisoner is traumatized, the
Constitution suffers a shock.24To address the conception of the prisoners
legal status three broad principle can apply: the human rights principle, the
principle of legality and the principle of proportionality.25The human
rights principle establish the presumption that the legislature ,the executive
and importantly the Judiciary respect human rights and the principle of
legality and proportionality apply in establishing the legitimacy of human
rights limitations or put another way they are the language in which we
justify rights limitation.26 A conception of a prisoner‟s legal status in a
legal system dedicated to the protection of human rights is guided by the
human rights, legality and proportionality principles. In fulfilling these
principles, the conception of the prisoner‟s legal status must clearly and
consistently adhere to the key distinction and make explicit in which
context prisoners‟ rights are limited.27

In other words, „it must establish whether the prisoner‟s rights are limited
as a consequence of the penal sanction or as a consequence of prison
administration‟.28 In order to achieve this, the conception of the prisoner‟s
legal status must also establish, and consistently adhere to, the purpose of
the custodial sanction as distinct from, and as well as, the purpose of
prison administration.29

Finally there have undoubtedly been great improvements this century in

food, clothing, the relation between inmates and officers, the abolition of
the silence rule, opportunities for association, and much else. But in so
many respects the legal position of the prisoner in Bangladesh remains
autochthonous. Unlike the rest of us, the prisoner may not infer that he can
do whatever is not expressly prohibited. Here the debatable issue is now it
is high time to identify the legal status of the prisoners so that they can
make their own individual citizenship room like other citizens.

24
Sunil Batra v. Delhi Administration (1980) AIR 1579 Supreme Court 1579.
25
Liora Lazarus, „Conceptions of Liberty Deprivation‟ (2006) 69(5) The Modern Law Review 740.
26
Ibid.
27
Ibid 741.
28
Ibid.
29
Ibid.
Rights of Prisoners in Bangladesh 83

Prisoners’ Rights Litigation: A Preliminary Analysis

The newly emerging awareness of rights of convicted is phenomenon none

shared by most of the free world and among jurists, statement and legal
writers, a shift in emphasis has recently occurred from the “rights lost” to
“rights remaining” to imprisoned convicts.30The concept of prisoners‟
rights there has been a growing realization that once the door of the prison
close behind them, unfettered access to the courts remains for them as
fundamental right as any they may have. If the lines of communication
between the inmate and the courts are not kept open, all of his other rights
become illusory, as dependent entirely on the whim of prison officials31.
To defend the rights of a prisoner the access to the courts ought to ensure.
Every court of justice is to open to all citizens.32

Every Court, in absence of any express provision in the Code for that
purpose, must be deemed to possess, as inherent in its constitution, all such
power as are necessary to do the right and to do a wrong in the course of
the administration of justice and when law gives a person anything it gives
him that without which it cannot exist.33 Where the rights of a prisoner,
either under the Constitution or under other law, are violated the writ
power of the court can and should run to his rescue.34The court has power
and responsibility to intervene and protect the prisoner against mayhem,
crude or subtle, and may use habeas corpus for enforcing in-prison
humanism and forbiddance of harsher restraints and heavier severities than
the sentence carries.35 The judges are guardians of prisoners‟ rights
because they have a duty to secure the execution of the sentences without
excesses and to sustain the personal liberties of prisoners without violence
on or violation of the inmates‟ personality.36

Conviction does not render a person a non-person and his rights cannot be
at the whims of the prison official, his liberty within the jail precincts
cannot be unreasonably and arbitrarily curtailed.37Article 32 of our
Constitution provides that no person shall be deprived of life and liberty
and as Article 32 includes both substantive and procedural due process, the
principle laid down by the America and Indian Court is applicable in

30
Alpert, above n 14, 155.
31
Ibid 156.
32
Islam, above n 21, 217.
33
Bangladesh v. ShahjahanShiraj (1980) 32 DLR (AD) 1.
34
Sunil (1980) AIR 1579.
35
Ibid 1603.
36
Ibid.
37
Ibid 1590.
84 BiLD Law Journal- Vol. III, Issue I

Bangladesh with full force.38A person because of his detention or

imprisonment does not forfeit all his fundamental rights and he can claim
his right to life and liberty even in detention or imprisonment as well.

As way of punishment handcuff may be used by the authority in jails

under rule 716 of Bengal Jail Code and it may be iron bar handcuffs,
spring-catch handcuffs or chain handcuffs.39 Handcuff may be imposed on
the wrist in front or behind, by day or night for a period of not more than
12 hours a day.40Whether a person should be physically restrained and, if
so, what should be the degree of restraint is a matter which affects the
person in custody so long as he remains in custody and also consistent
with the fundamental rights of such person the restraint can be imposed.41It
is grossly objectionable that the power given by the law to impose a
restraint, either by applying handcuffs or otherwise, should be seen as an
opportunity for exposing the accused to public ridicule and humiliation
and nor is the power intended to be used cruelly or by way of
punishment.42If the prisoners break downs because of mental torture,
psychic pressure or physical infliction beyond the licit limits of lawful
imprisonment the prison administration shall be liable for the excess.43

No prisoners can be personally subjected to deprivation not necessitated by

the fact of incarnations and sentence of court and all other freedoms
belong to him to read and write, to exercise and recreation, to mediation
and chant, to creative comforts like protection from extreme cold and heat,
to minimal joys of self-expression, to acquire skills and technique and all
other fundamental rights tailored to the limitations of
imprisonment.44Prisons Act, section 29 talks about solitary confinement of
prisoners and any harsh isolation from the society by long, lonely, cellular
detention is penal and so must be inflicted only consistently with fair
procedure.45Prisons Act 1894, section deals with confinement in irons and
it must be restored to only in gravest situation.46

An alarmingly large number of men and women, children including, are

behind prison bars for years awaiting trial in courts of law. Speedy trial is

38
Islam, above n 21, 197.
39
The Bengal Jail Code 1920 Rule 716.
40
Ibid, 717.
41
Prem Shankar Shukla v. Delhi Administration (1980) AIR Supreme Court 1535, 1546.
42
Ibid, 1547.
43
Sunil (1980) AIR 1579, 1581.
44
Ibid, 1581.
45
Ibid,1581.
46
Ibid.
Rights of Prisoners in Bangladesh 85

of the essence of criminal justice and, therefore, delay in trial by itself

constitutes denial of justice. Though speedy trial is specifically enumerated
as a fundamental right under Article 35(3) of our Constitution but we can
see the accused are in the custody without trial for indefinite
period.47Expeditious trial and freedom from detention are a part of human
rights and basic freedoms and a judicial system which allows incarceration
of individuals for long periods of delay without trial must be held to be
denying human rights.48 About 7409 person who are under trial person has
been furnished by the petitioner to show that these persons are also
suffering in custody without trial for indefinite period of time.49The case
has been made out by the Petitioner, is that the impugned action of the
respondent is without lawful authority is the violation of the prisoners
fundamental rights to personal liberty and to a speedy trial as guaranteed
by Article 31, 32 and 35(3) of the Constitution and also violation of
Government obligation under International Human Rights treaties, in
particular Article 14 of the International Covenant on Civil and Political
Rights to a speedy trial.50 If a person is deprived of his liberty under a
procedure which is not "reasonable, fair or just", such deprivation would
be violation of his fundamental right and he would be entitled to enforce
such fundamental right and secure his release.51

Remission earned on the basis of rules framed under Section 59 of Prisons

Act reducing 20 years imprisonments to 14 years and after 14 years
completion the matter to be referred to the Government for action and
convict cannot claim 14 years as a matter of right.52Prisoners can be
released only in the exercise of the power conferred on the Government by
Section 491 of the Criminal Procedure Code.53Though the provision of
Remission available for the prisoners but with restriction. Inspector
General (Prison) are inform that presently more than ten thousand inmates
who are convicted with lifelong imprisonment are staying in jails and the
released process of 1042 inmates still on progression.54This delay occurred
because the Home Affairs Ministry asked documents like FIR, Charge
Sheet, and judgment copy of those inmates though there is no such
provision in Jail Code and Jail authority failed to produce those

47
Islam, above n 21, 213.
48
Ibid.
49
BLAST v. Bangladesh 57 DLR (2005) 12.
50
Ibid.
51
HussainaraKhatoon & Ors v. Home Secretary, State Of Bihar, (1979) AIR Supreme Court, 1360.
52
Muhammad Hussain v. The State (1968) 20 DLR (WP) 25.
53
Ibid.
54
Ministry of Parliamentary Standing Committee on Home Affairs, Bangladesh Parliament,
Remission and Procedure of Release of Long Term/Imprisoned Prisoners (2010) 132.
86 BiLD Law Journal- Vol. III, Issue I

documents. As a result the progression of release of those inmates delayed

with passage of time and he also claimed that as a condition of release
asked for 20/30 years previous documents from the inmates is far away
from humanity.55However, to focus only on litigation would be too
inadequate. Legislatures and executive agencies have also had key roles to
play to protect the legal status of prisoners.

An addition, it is crying shame on judicial system which permits

incarnation of men and women for such long periods of time without
trial.56Why our legal and judicial system continually denies justice to the
poor by keeping them for long years in pre-trial detention is the highly
unsatisfactory bail system and where an accused is to be released on his
personal bond; it insists that the bond should contain monetary obligations
which require the accused to pay a sum of money. 57 The poor find it
difficult to furnish bail even without sureties because very often the
amount of the bail fixed by the Court is so unrealistically excessive that in
a majority of cases the poor are unable to satisfy the Police or the
Magistrate about their solvency for the amount of the bail and where the
bail is with sureties, as is usually the case, it becomes an almost impossible
task for the poor to find persons sufficiently solvent to stand as sureties. 58
The result is that either they are fleeced by the police and revenue officials
or by touts and professional sureties and sometimes they have even to
incur debts for securing their release or, being unable to obtain release,
they have to remain in jail until the court is able to take up their cases for
trial which leading to grave consequences.59 It is indisputable that an
unnecessarily prolonged detention in prison of under trials before being
brought to trial is an affront to all civilized norms of human liberty.60 Law-
makers would take an important step in defence of individual liberty if
appropriate provision was made in the statute for non-financial releases.61

Recommendations and Some Ethical Considerations

What should be done about the prisoners‟ condition in Bangladesh jails, if

anything? Is there something that one could recommend to improve the
present condition in cells and which also protect the wellbeing of

55
Ibid.
56
Hussainara Khatoon (1979) AIR 1361.
57
Ibid 1361.
58
Ibid.
59
Ibid.
60
Ibid.
61
Ibid.
Rights of Prisoners in Bangladesh 87

prisoners? Needless to say, we are going to give recommendation which

can be made immediate implication or has long term impacts. This is a
reference by the Government under section 6 (Ena) of the Law
Commission Act, 1996 seeking opinion and recommendations of the Law
Commission on some specific recommendations made by the Jail Reform
Commission, 1978, for prison reforms.62 The recommendations of the Jail
Reform Commission with which we are concerned in this reference are as
follows:

Firstly, the proposal of the Ministry of Law, Justice and Parliamentary

Affairs for enforcing the Probation of Offenders Ordinance, 1960 may be
accepted and implemented.63 By implementing this Ordinance there might
be created the opportunity to reduce the prisoners‟ problems. If we look at
the Act in section 4 which deals with the conditional discharge of the
convicted having not more than two years imprisonment by considering
some facts like the age, character, antecedents or physical or mental
condition of the offender.64

Secondly, if the Government takes a policy decision to introduce

community service as an alternative to imprisonment, a legal framework
for the purpose may be evolved by suitable legislation.65 As alternative to
Imprisonment such as, bail, conditional discharge, suspension of sentence,
probation, binding-over, fines, community service order, compensation,
restitution, etc.66 To take another example the state might facilitate
exercise of freedom of speech by ensuring that prisoners have ready access
to forms of cultural stimulation and forums in which they can express their
ideas among themselves and to the general public.67

Thirdly, the judges trying criminal cases and the magistrates may be
sensitized to apply the existing law of bail conscientiously and on judicial
consideration and judicial consideration alone and not on any
consideration other than judicial and the police officers may be sensitized
to exercise their powers to grant bail to an arrested person properly and
conscientiously.68 It is high time that risk of monetary loss is not the only
deterrent against fleeing from justice but, there are other factors which act

62
Law Commission, Report on the Reference of the Government on Prison Reforms, Serial No.54
(2003) 1.
63
Ibid.
64
The Probation of Offenders Ordinance, 1960 Section 4.
65
Law Commission, above n 62, 1.
66
Ibid.
67
Richard L. Lippke, „Toward a Theory of Prisoners‟ Rights‟ (2002) 15(2) Ratio Juries 122.
68
Law Commission, above n 62, 1.
88 BiLD Law Journal- Vol. III, Issue I

as equal deterrent against fleeing and there might be other relevant

consideration like family ties, roots in the community, job security,
membership of stable organization should be determent factors in grant of
bail and the accused should in appropriate cases be released on his
personal bond without monetary obligation to ensure speedy trial.69

From ethical reflection, need to emphasis on the more contact staff have
with prisoners the less punitive they become, possibly because the
interaction humanizes prisoners in their eyes. The research also suggests
that the more prison staff members engage with prisoners to change their
behaviours and improve their lives, the more likely they are to be no
punitive in their attitudes. Therefore, these findings would suggest that
training and staff development which exposes staff, of all social
backgrounds, to these rehabilitative roles will reduce overall levels of
punitive attitudes among staff. One possible approach with rights fully
retained by prisoners is to hold that state facilitation should allow prisoners
to enjoy or exercise such rights in ways that are at least roughly
comparable to the ways in which free citizens do so. But to say this is only
to raise a series of problems, not address them70.The parole system has
long been recognized as the single most inequitable, potentially capricious
and uniquely arbitrary corner of the criminal justice map.71

Another ethical consideration, too many in our society, the impact of

imprisonment on prisoners and their families is a matter of little or no
importance. The effects of incarceration include the high financial,
emotional and social costs which prisoners' family members are often
forced to pay.72 Such costs have been termed 'invisible punishment',
because they often leave prisoners' families feeling as if they have been
penalized for crimes they have not committed.73Many people are directly
and indirectly affected by crime each year, the worst crimes at times
dropping entire families into devastating loss. However, as a society we
are in control of our response to crime and the way in which we punish.74

Subject to consideration of security and discipline, liberal visits by family

members, close friends and legitimate callers, are part of the prisoners‟ kit

69
Hussainara Khatoon (1979) AIR 1363.
70
Lippke, above n 67, 133.
71
Alpert, above n 14, 38.
72
Jessica Breen,‟ Prisoners' Families and the Ripple Effects of Imprisonment‟ (2008) 97(385) An
Irish Quarterly Review 60.
73
Ibid.
74
Ibid 68.
Rights of Prisoners in Bangladesh 89

of rights and shall be respected.75There should be in connection with every

institution social workers charged with the duty of maintaining and
improving all desirable relations of a prisoner with his family and social
agencies.76

Conclusion: Taking to Forward

Though much work remains to be done on the specific rights of prisoners‟

retain fully or in part, but it should be admitted that State has the
accountability to ensure those retained rights of the prisoners. Suppose that
while some of their rights are justifiably curtailed, prisoners retain
important rights such as freedom of speech and religion, the right to work,
the right to vote, and the right to health care.77In reply State might claimed
that by committing crimes of a serious kind, prisoners have put themselves
in a position where they may not be able to enjoy or exercise their retained
rights. The State is therefore not obligated to offer them any special help or
support and this argument implies that inability to exercise or enjoy
retained rights is part of the cost to the guilty of their criminal
misconduct.78Here we can draw the attention of the state as the prison
population may well include some of the most reviled members of the
community and similarly, in modern conflicts the respectful treatment of
prisoners is essential for legitimacy, and international rights standards are
seen as key guarantees of good treatment.79 The essential feature of rights
is precisely that they are available to all, even those who through their
actions may appear to be less deserving than others and rights should,
therefore, not be linked to virtue.80

To recognize prisoners as general rights-holders and would, therefore,

acknowledge their citizen status, but it would also mean recognizing a
separate category of rights resulting from their prisoner status.81There is
also the question of how far we may legitimately restrain or intervene upon
those rights that confinement requires us to shorten. To answering these
questions would require us to look at our Constitution where part III
enumerates some fundamental rights for all citizen of this country and here

75
Sunil (1980) AIR 1579, 1581.
76
Ibid 1601.
77
Lippke, above n 67,131.
78
Ibid.
79
Susan Easton, „Constructing Citizenship: Making Room for Prisoners‟ Rights‟ (2008) 30(2),
Journal of Social Welfare & Family Law142.
80
Ibid.
81
Ibid 144.
90 BiLD Law Journal- Vol. III, Issue I

prisoners are not exception. To address the conception of the prisoners

legal status three broad principle can be applied: the human rights
principle, the principle of legality and the principle of proportionality with
full spirit.

For purposes of discussion, there might be scope for argument that

lawbreakers forfeit all their rights due to their criminal delinquency. The
decrease of offense is, without any doubt, one of the central justifying aims
of legal punishment. However, to defend the rights of a prisoner the access
to the courts ought to ensure and to the progress achieved in the
recognition of fundamental freedom as available also to confined felon, the
right of access to the court.82 Initially a brief overview of the international
approach to protection of prisoners‟ right in general and their right of
access to the courts in particularly ensured.

For concluding remarks, bringing a rights-based claim can itself promote

respect for the law on the part of the prisoner through reaffirming his or
her nationality.83Finally we hope that within the prison system, it may
contribute to decent order by reducing prisoners‟ sense of injustice. It may
also satisfy states‟ obligations under law.

REFERENCES

Books

 Alpert, Geoffrey P. (ed), Legal Rights of Prisoners (Saga Publication, 1st ed,
1980) 15.
 Islam, Mahmudul, Constitutional Law of Bangladesh (Mullick Brothers, 2nd
ed, 2010) 88.
 Matin, Abdul, „The Jail Code with Law on Prison and the Prisoners‟ (Madole
Prokashani, 2nded, 1998).

Cases

 Bangladesh v. ShahjahanShiraj (1980) 32 DLR (AD) 1.

 BLAST v. Bangladesh 57 DLR (2005) 12.
 HussainaraKhatoon & Ors v. Home Secretary, State Of Bihar (1979) AIR
Supreme Court, 1360.
 Fazal Khan v. State (1962) 14 DLR (SC) 235.

82
Alpert, above n 14, 130.
83
Susan Easton, „Constructing Citizenship: Making Room for Prisoners‟ Rights‟ (2008) 30(2),
Journal of Social Welfare & Family Law 142.
Rights of Prisoners in Bangladesh 91

 Muhammad Hussain v. The State (1968) 20 DLR (WP) 25.

 Prem Shankar Shukla v. Delhi Administration (1980) AIR Supreme Court
1535.
 People‟s Union for Civil Liberties & Anr. v. Union of India & Anr. (SC)
SEPTEMBER 27, 2013WRIT PETITION (CIVIL) NO. 161 OF 2004
<http://www.pucl.org/Topics/Law/2013/vote_none.pdf >access at 22
December 2017.
 Sunil Batra v. Delhi Administration (1980) AIR 1579 Supreme Court 1579.

Journal Articles

 Akbar, Mazhar Hussain Bhutta and Muhammad Siddique, „Situation of

Prisons in India and Pakistan: Shared Legacy, Same Challenges‟ (2012) 27(1)
South Asian Study 172.
 Behan, Cormac, „Still Entitled to Our Say‟: Prisoners‟ Perspectives on
Politics‟ (2011) 51 (1) The Howard Journal of Criminal Justice 33.
 Breen, Jessica,‟ Prisoners‟ Families and the Ripple Effects of Imprisonment‟
(2008) 97(385) An Irish Quarterly Review 60.
 Briant, Sophie, „The Requirement of Prisoners Voting Rights: Mixed
Messages from Strasbourg‟ (2011) 70(2) The Cambridge Law Journal 279.
 Easton, Susan, „Electing the Electorate: The Problem of Prisoner
Disenfranchisement‟ (2006) 69(3) the Modern Law Review 443.
 Easton, Susan, „Constructing Citizenship: Making Room for Prisoners‟
Rights‟ (2008) 30(2), Journal of Social Welfare & Family Law 142.
 Lazarus, Liora, „Conceptions of Liberty Deprivation‟ (2006) 69(5) The
Modern Law Review 740.
 L. Lippke, Richard, „Toward a Theory of Prisoners‟ Rights‟ (2002) 15(2)
Ratio Juries 122.
 Mbodl, Ntusi, „Should Prisoners Have a Right to Vote?‟ (2002) 46(1) Journal
of African Law 92.
 Pieterse, Marius, „The Potential of Socio-Economic Rights Litigation for The
Achievements of Social Justice: Considering the Example of Access to
Medical Care in South Africa Prisons‟ (2006) 50 (2) Journal of African Law
119.
 Scott, Davit, „The Politics of Prisoner Legal Rights‟ (2013) 52 (3) The
Howard Journal of Criminal Justice 234.
 Zellick, Graham, „Prisoners‟ Rights in England‟ (1974) 24(4) The University
of Toronto Law Journal 345.
92 BiLD Law Journal- Vol. III, Issue I

Legislations

 The Constitution of the People‟s Republic of Bangladesh, 1972.

 The Prisons Act of 1894.
 The Bengal Jail Code of 1920.
 The Penal Code, 1860.
 The Code of Criminal Procedure, 1898.
 The Probation of Offenders Ordinance, 1960.
 The Children Act, 2013.

Treaties

 The International Covenant on Civil and Political Rights, open for signature
19 December 2009, UNTS vol. 999 p. 171 and vol. 1057, p. 407 (entered into
force 23 March 1976).
 The Universal Declaration of Human Rights, GA Res 217(III),UN GAOR,3rd
Sess, 183rd plenary meeting , UN Doc A/810(10 December 1948) art 1.
 The UN Standard Minimum Rules for the Treatment of Prisoners, UN ESC
Res 663C (XXIV) and 2076(LXII), UN ESCOR (31 July 1957 and 13 May
1977).

Others

 AMM Shawkat Ali, Jail Administration,

http://www.banglapedia.org/HT/J_0031.htm, access on 12/1/2018.
 Law Commission, Report on the Reference of the Government on Prison
Reforms, Serial No. 54 (2003) 1.
 Ministry of Parliamentary Standing Committee on Home Affairs, Bangladesh
Parliament, Remission and Procedure of Release of Long Term/Imprisoned
Prisoners (2010) 132.
 Staff Correspondent, „2,054 Dhaka jail inmates made voters‟ The Daily Star
(online) 16 February 2008 <http://archive.thedailystar.net/newDesign/news-
details.php?nid=23622> access at 21.12.2017.