PRISONERS AND POLITICAL PRISONER: SIMILAR BUT NOT THE SAME

Abstract

This research article, titled “Prisoner and Political Prisoners: Similar but Not the Same,” focuses on the concept of political prisoners, examining both international and national aspects. The article’s primary objective is to define and distinguish a ‘prisoner’ from a ‘political prisoner.’ It discusses how an individual becomes a political prisoner and examines their rights under the Constitution of India. The research methodologies employed are doctrinal, qualitative, and theoretical. For clarity, examples of notable political prisoners are discussed. The article examines the role of international institutions, constitutional provisions, and landmark judgments of the Supreme Court of India. The rights recognised by international instruments and the Constitution of India are also addressed. The article ends with a conclusion.

I. Introduction

The purpose of any punishment is to address the offence committed by the offender. Severe crimes attract severe punishment, while minor crimes attract comparatively lenient punishment. The most effective punishment is one that is both deterrent and preventive in nature, separating the guilty person from society and preventing future offences. Imprisonment is precisely that kind of punishment.

Imprisonment is the act of separating an offender from society by placing them in prison. It is a restraint on one’s liberty on account of the commission of any crime that is anti-social and punishable by law. The prison concept is central to criminal justice. A prisoner is one who is lawfully arrested, detained, or convicted after a criminal procedure prescribed by law.

The idea of the ‘political prisoner’ is a feature of modern democracy, though it existed in ancient times. The ancient Greek philosopher Socrates is often regarded as the first political prisoner on account of his views; however, since the concept was not yet developed, he was simply termed a prisoner.

Political prisoners are those imprisoned for reasons related to political beliefs, ideologies, activism, dissent, or opposition to the ruling regime, and not for conventional criminal acts such as theft, battery, assault, or murder. It is a controversial and complex concept. In India, during the colonial period, the British government imprisoned many Indian freedom fighters, including Mahatma Gandhi and Jawaharlal Nehru, for challenging British rule. They were therefore regarded as political prisoners. Similar patterns occurred in countries such as South Africa due to apartheid, in Latin America owing to military dictatorships, and under the regimes of Iran, China, and Myanmar.

The phrase “similar but not the same” forms the central theme of this discussion and serves to clarify the distinction between a prisoner and a political prisoner. This distinction is necessary because both categories enjoy certain rights by virtue of being human and being Indian nationals, rights that must be protected. To that end, an examination of the international and national legal framework and constitutional jurisprudence is essential, with the Indian legal system as the primary frame of reference.

II. Review of Literature

The literature on political prisoners spans political philosophy, international relations, and law. In The Origins of Totalitarianism, Hannah Arendt defines political imprisonment as a defining characteristic of a totalitarian regime. She argues that the state punishes political prisoners not for violating the law but for opposing or threatening its ideology, because the punishment is symbolic: it is the state’s way of demonstrating its power. This keeps the state above all others.

In Discipline and Punish, Michel Foucault views imprisonment as a technique to control society rather than to serve justice. When someone resists or opposes supreme power, that power uses imprisonment as a mechanism to reassert supremacy. This is precisely what happens in the case of political prisoners.

The concept of the ‘political prisoner’ was brought to broader attention by Amnesty International, after which it began to be treated as a serious matter involving individual dignity. The United Nations, rather than using the term ‘political prisoner,’ prefers ‘arbitrary detention,’ relying on the concept of ‘abuse of criminal process.’

In India, serious concerns have been raised by Indian legal scholars, among them Upendra Baxi, who has argued that preventive detention laws are often used for political reasons and represent a constitutional oddity. He contends that judicial interpretations have diluted the principles embedded in constitutional provisions.

The literature reveals a common theme: political prisoners are known to exist, yet they are consistently overlooked when it is their turn to receive justice and fair treatment.

III. Research Objective and Methodology

The objectives of this research article are:

a. To analyse the meaning of ‘prisoner’ and ‘political prisoner.’
b. To examine the international human rights instruments dealing with political detention.
c. To examine the Indian Constitution and statutory framework related to preventive detention and political dissent.
d. To identify the line of distinction between a prisoner and a political prisoner.

The methodologies employed are doctrinal, qualitative, and theoretical. The research analyses constitutional provisions, statutory laws, and international conventions, with particular focus on judicial decisions to trace the interpretations given to these laws.

IV. Theoretical and Conceptual Framework

1. Prisoner

The UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules, 2015) define ‘prisoners’ as ‘all persons deprived of their liberty as a result of conviction for an offence or by reason of detention.’ This definition, adopted by the United Nations General Assembly, is universally recognised and includes convicted prisoners, undertrial prisoners, detainees, and persons in preventive detention.

2. Political Prisoner

The Cambridge Dictionary describes a political prisoner as someone put in prison for expressing disapproval of their own government, or for belonging to an organisation, race, or social group not approved by the government.

There is no universally binding legal definition of political prisoners in international law; however, the term is recognised in international practice and human rights discourse.

The Parliamentary Assembly of the Council of Europe (PACE), Resolution 1900 (2012) states that a person deprived of personal liberty is to be regarded as a political prisoner if any of the following conditions are met:

i. The detention violates the fundamentals guaranteed by the European Convention on Human Rights and its protocols.
ii. The detention was imposed for political reasons without connection to any offence.
iii. The length or conditions of detention are out of proportion to the offence committed or alleged.
iv. The detention results from unfair proceedings connected to the political motives of authorities.

The International Covenant on Civil and Political Rights, 1966 (ICCPR) protects the civil and political rights of individuals, including prisoners and political prisoners. While the ICCPR does not use the term ‘political prisoner,’ it addresses such situations through the concept of arbitrary detention.

There are various grounds on which a person may be detained and labelled a political prisoner. Some of them are as follows:

a. Political dissent.
b. Writing, speaking, or posting content that opposes government views.
c. Activism and protests.
d. Misuse of anti-terror laws and other legislation.
e. Whistleblowing and exposure of corruption.
f. Authoritarian regimes acting repressively, such as through mass arrests during a state of emergency.

V. International Legal Framework

1. International Covenant on Civil and Political Rights, 1966

i. Cruel, inhuman, or degrading treatment or punishment is prohibited.
ii. The right to liberty and security of person is preserved; no person shall be arbitrarily arrested or detained.
iii. If a person is deprived of liberty, they must be treated with humanity and their dignity as a human being must be respected.

2. Geneva Convention of 1949 (Note: The provisions below relate to the treatment of prisoners in armed conflict; readers are also referred to the Nelson Mandela Rules for domestic prison standards.)

i. Rules for the management of detention institutions are provided in this Convention.
ii. Rules are applicable to all categories of prisoners within the scope of the Convention.
iii. No distinctions shall be made on the grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, property, birth, or other status.

VI. National Legal Framework

In India, the category of political prisoners is not treated separately from that of prisoners in general. Political prisoners also fall under the broader category of ‘prisoner,’ notwithstanding their different conceptual meaning. As a result, persons convicted or detained, whether ordinary prisoners or political prisoners, are governed by the same laws, with the Constitution of India serving as the foundational guide.

The Indian Constitution explicitly recognises that mere imprisonment does not result in the forfeiture of fundamental rights. The Supreme Court has, through various landmark judgments, held that even persons behind bars are not exempt from fundamental rights, as they remain human beings. This principle is intended to ensure that persons convicted or accused are not subjected to torturous, cruel, inhuman, or barbaric treatment during proceedings or after conviction.

Several constitutional provisions ensure that individuals, whether guilty or merely accused, are not denied a fair trial.

Article 14 ensures the Right to Equality, guaranteeing equality before the law and protecting prisoners against discriminatory treatment. Any distinction made among prisoners must be based on reasonable grounds.

Article 19 guarantees Freedom of Speech and Expression. An individual cannot be detained merely for expressing views or thoughts, verbally or visually, within the reasonable restrictions set out in the Article.

The most significant provision is Article 21, which guarantees the Right to Life and Personal Liberty. This Article provides protection against arbitrary detention or arrest. Any person detained or arrested has the right to know the grounds of such detention or arrest, the right to consult and be defended by a legal practitioner, and the right to be produced before a magistrate within 24 hours.

Political prisoners in India are most closely affected by Article 22, which permits Preventive Detention. Preventive detention is the detention of an individual without trial, to prevent them from doing something that poses a threat to national security, public order, or the sovereignty of the state. The following safeguards are available to such detainees:

i. Grounds of detention must be communicated.
ii. The right to consult and be defended by a legal practitioner is preserved.
iii. The detention must be reviewed by an Advisory Board.

Individuals arrested under laws such as the National Security Act (NSA), the Unlawful Activities (Prevention) Act (UAPA), and the Public Safety Act are often referred to as political prisoners, since their detention is based on ideologies, beliefs, thoughts, political activism, or opposition to state policies. However, no such category is formally recognised under the Indian Constitution.

VII. Frequently Infringed Rights of Political Prisoners

1. Right to Personal Liberty and Dignity

The dignity of detainees must be maintained through humane treatment and the prevention of torturous and barbaric conditions. Political prisoners often face prolonged custody under harsh prison conditions pursuant to specific detention laws.

In Sunil Batra v. Delhi Administration,[1] the Supreme Court held that torture and solitary confinement are unconstitutional, being violative of Article 21 of the Indian Constitution.

2. Right to Speedy Trial

Political prisoners are often kept under detention without any proceedings or proper investigation for extended periods. This converts the presumption of innocence into punishment before conviction.

The right to a speedy trial was first recognised in Hussainara Khatoon v. State of Bihar.[2]

3. Right to Bail and Presumption of Innocence

This right is based on the principle “innocent until proven guilty.” The bail provisions under certain laws are so stringent as to make bail virtually unattainable. Section 43D(5) of the UAPA, for example, makes bail unattainable if the court believes that the accusations are prima facie true. In practice, courts often deny bail without requiring strong evidence, resulting in the prolonged incarceration of political detainees.

4. Freedom of Speech with Reasonable Restrictions

Political prisoners are most commonly arrested for speeches, writing, protests, or social media posts. In Kedar Nath Singh v. State of Bihar,[3] sedition was restricted to incitement of violence. In practice, however, mere dissent is often treated as sedition and criminalised. The right to free speech is, sometimes, regarded not as a practical right but as one that exists only on paper.

5. Protection Against Arbitrary Arrest

Political detainees are often arrested without proper disclosure of grounds or are transferred between jurisdictions to prevent access to legal assistance. In DK Basu v. State of West Bengal,[4] the Supreme Court issued guidelines against illegal arrest and custodial abuse. Nevertheless, the reality remains starkly different: arrests are still made at odd hours, with improper documentation and without access to legal assistance.

6. Rights Against Misuse of Preventive Detention

The Constitution permits preventive detention, but only if proper and strict safeguards are observed. These laws are frequently misused, even in cases where ordinary criminal procedure would be adequate. The National Security Act and the Public Safety Act permit detention that can last for months or even years, and released detainees are sometimes re-detained, rendering judicial remedies ineffective.

Due to this improper implementation and misuse of law and power, these rights are often described as ‘paper rights,’ barely recognised or enforced in practice.

In recent times, these rights have been frequently infringed, raising serious concerns about the welfare and fair treatment of political detainees, both internationally and nationally.

VIII. Notable Case Studies

1. Dawit Isaak

A Swedish-Eritrean journalist, playwright, and writer, Dawit Isaak is the co-founder of Eritrea’s first independent newspaper. After Eritrea’s independence, he worked to promote press freedom and democratic reform. He was arrested during a broad crackdown on press freedom, along with other independent journalists and politicians, in September 2001. Since that date, he has been held continuously without trial or formal charges and has been denied access to legal counsel. His health condition remains a matter of serious concern, as the authorities have never held a public trial or explained the charges. They have refused to disclose any details. International bodies, including the UN Working Group on Arbitrary Detention, have declared this detention arbitrary and violative of human rights law. Amnesty International considers him a prisoner of conscience and has called for his release, though Eritrean authorities have not demonstrated any transparency in the matter.

2. Ronald Dauphin

Ronald Dauphin is a Haitian activist and Customs Work Associate with the Fanmi Lavalas political movement. He was detained on 1 March 2004, seized by an armed group without an arrest warrant and handed over to the Haitian police. The allegations against him related to his purported involvement in violence in St. Marc known as the La Scierie massacre. However, a UN investigation found evidence of a clash between armed groups, rendering the allegations against him questionable. His detention became one of the longest political detentions on record. International legal and human rights organisations have criticised Haiti for prolonged detention without trial, poor prison conditions, and violations of international standards of justice and fair trial rights.

3. Umar Khalid and Sharjeel Imam

Umar Khalid and Sharjeel Imam, both student activists, rose to prominence during the Anti-CAA (Citizenship (Amendment) Act) protests of 2019-2020. Both were subsequently arrested: Imam in January 2020 and Khalid in September 2020. Imam was arrested for speeches made during demonstrations, while Khalid was accused of conspiracy and offences related to a ‘larger conspiracy.’

In January 2026, the Supreme Court of India denied bail to them, while granting conditional bail to co-accused in connected cases. The Court held that there was ‘prima facie material’ justifying continued custody under Section 43D(5) of the UAPA. The Supreme Court had earlier criticised this provision in Union of India v. K.A. Najeeb[5] and held that in cases of prolonged delay, bail may be granted notwithstanding statutory restrictions.

On 6 January 2026, the Supreme Court issued another significant judgment in Arvind Dham v. Directorate of Enforcement,[6] holding that the right to bail and the right to a speedy trial cannot be denied merely because of the nature of the offence or where the trial has been unreasonably delayed.

At the Jaipur Literature Festival, retired Justice Chandrachud stated that bail prior to conviction should be a matter of right and reaffirmed the presumption of innocence, when the senior journalist Vir Sanghvi raised concerns about the Supreme Court’s denial of bail to Umar Khalid.

The detention of both individuals has been criticised by human rights organisations, including Amnesty International, for prolonged pre-trial incarceration without conviction.

IX. Difference Between Prisoner and Political Prisoner

1. Nature of Offence

Prisoners are generally offenders convicted for recognised crimes such as murder, theft, dacoity, or assault. Political prisoners, by contrast, are detained for political expression and dissent directed at the government or its actions.

2. Intention of the State

If the detention was motivated by a desire to suppress voices of opposition, it is considered arbitrary and the person detained is characterised as a political prisoner.

3. Due Process

The procedure involved in the trial and conviction of political prisoners is usually influenced by political considerations, with little regard for fairness. As a result, political prisoners are particularly vulnerable to injustice.

X. Conclusion

The terms ‘prisoner’ and ‘political prisoner’ may appear similar, but they are distinct. The latter is more complex than the former because the motive behind the detention is not always readily apparent. The motive may be to serve justice, or it may be to silence those who dare to challenge the government, its actions, laws, or policies.

This research not only highlights the distinction between the two, but also draws attention to the rights of detainees and convicts that are often infringed on account of political ideologies or beliefs. In some cases, it is difficult to trace the injustice because it is obscured behind a claim of prima facie evidence.

Modern democracy stands opposed to the criminalisation of dissent. It is a necessity that the law works for those who are silenced by power, not against those who have the strength to challenge the status quo and make the world better.

The concept of the political prisoner is, therefore, not merely a legal issue but a humanitarian one. They too are human beings, and the right to a life with dignity belongs to them no less than to anyone else.

References

International Instruments
[1] UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), G.A. Res. 70/175, U.N. Doc. A/RES/70/175 (2015).
[2] Parliamentary Assembly of the Council of Europe (PACE), Resolution 1900 (2012).
[3] International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess. (1966).
[4] Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), Aug. 12, 1949, 75 U.N.T.S. 135.
[5] Reports of the UN Working Group on Arbitrary Detention.

Indian Legal Framework
[6] The Constitution of India, 1950.
Sunil Batra v. Delhi Administration, AIR 1978 SC 1678.
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.
Union of India v. K.A. Najeeb, AIR 2021 SC 712.
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
DK Basu v. State of West Bengal, AIR 1997 SC 610.
Arvind Dham v. Directorate of Enforcement, (2026) INSC 12.

Books and Articles
Hannah Arendt, The Origins of Totalitarianism (Harcourt, Brace & Co. 1951).
Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans., Vintage Books, 2d ed. 1995).
Upendra Baxi, The Crisis of the Indian Legal System (Vikas Publ’g House 1982).

NGO and Human Rights Reports
Amnesty Int’l, Political Prisoners in the Modern World (2018).
Amnesty Int’l, Annual Report: India 2022/23 (2023).