PRISON REFORMS IN INDIA

By PRAVEEN DALAL 30/04/2005 At 08:17

THE AIM OF THIS ARTICLE IS TO ANALYSE THE PRISON REFORMS IN INDIA.

PRAVEEN DALAL, CONSULTANT AND ADVOCATE, DELHI HIGH COURT, INDIA

Introduction

The degree of civilization in a society can be judged by entering its prisons. A

society cannot be recognized as a civilized society unless it treats the prisoners with
sympathy and affection. This treatment is not possible till the society recognizes
and accepts their basic human rights and the fundamental rights. A prisoner, be he
a convict or under trial or a detenu, does not cease to be a human being. Even
when lodged in jail, he continues to enjoy all his basic human rights and
fundamental rights including the right to life guaranteed to him under the
Constitution. On being convicted of crime and deprived of their liberty in
accordance with the procedure established by law, prisoners shall retain the residue
of the Constitutional rights. The Universal Declaration of Human Rights, 1948
stipulates that “ No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment”. Article 21 of the Constitution of India, which
recognizes that the right to life includes a right to live with human dignity and not
mere animal existence, strengthens this mandate. Thus, a prison atmosphere can
be accepted as civilized only if it recognizes the basic human rights and the
constitutional rights of the prisoners and makes efforts for the effective and
meaningful enjoyment of the same by means of prison reforms.

Prisoner’s Rights:

The prisoner’s have the following rights while serving their sentence:

(1) In State of Maharashtra v. Prabhakar, AIR 1966 SC 424 aid of Article 21 was
made available perhaps for the first time to a prisoner while dealing with the
question of his right of reading and writing books while in jail.

(2) Suresh Chandra vs. State of Gujarat, 1976 (1) SCC 654 saw this court stating
about penological innovation in the shape of parole to check recidivism because of
which liberal use of the same was recommended.

(3) A challenge was made to the segregation of prisoners in Bhutan Mohan Pattnaik
v. State of Andhra Pradesh, AIR 1974 SC 2092 and a three Judge bench stated that
resort to oppressive measures to cub political beliefs (the prisoner was a Naxalite
because of which he was put in a ‘quarantine' and subjected to inhuman treatment)
could not be permitted. The Court, however, opined that a prisoner could not
complain of installation of high-volt live wire mechanism on the jail walls to prevent
escape from prisons, as no prisoner had fundamental right to escape from lawful
custody.

(4) In Charles Sobraj’s case it was stated that this Court would intervene even in
prison administration when constitutional rights or statutory prescriptions are
transgressed to the injury of a prisoner. In that case the complaint was against
incarcerator torture.

(5) Sunil Batra(I) dealt with the question whether prisoners are entitled to all
constitutional rights, apart from fundamental rights. In that case this Court was
called upon to decide as to when solitary confinement could be imposed on a
prisoner.

(6) Prem Shankar v. Delhi Administration, AIR 1980 SC 1535 prohibited putting of
under trial prisoners in leg-irons.

(7) In Sunil Batra (II) the Court was called upon the deal with prison vices and the
judgment protected the prisoners from these vices with the shield of Article 21,
Krishna
Iyer. J. stated, "prisons are built with the stones of law".

(8) A challenge was made to a prison rule which permitted only one interview in a
month with the members of the family or legal advisor in Francis Coralie v. Union
Territory of Delhi AIR 1981 SC 746 and the rule was held violative, inter alia, of
Article 21.

(9) In Sheela Barse v. Union Territory, 1993 (4) SCC 204 it was held that jailing of
non-criminal mentally ill persons is unconstitutional and directions were given to
stop confinement of such persons.

(10) The judicial work done by this Court on the subject at hand would not be
complete without mentioning what was held in Mohd. Giasuddin v State of A.P
(1977) 3 SCC 287 because in that case reformative aspect was emphasized by
stating that the State has to rehabilitate rather than to avenge. Krishna Iyer, J,
pointed out that the sub-culture that leads to anti-social behaviour has to be
countered not by undue cruelty but by re-culturalisation.

(11) On top of all, there is the undoubted right of speedy trial of under trial
prisoners. These consist of ordering for release on bail where trial is protracted. In
Supreme Court Legal Aid Committee representing under trial Prisoners v. Union of
India, 1994(6) SCC 731, the court directed for the release of those undertrial
prisoners who were languishing in jail for a period exceeding half of the punishment
provided in the NDPS Act, 1985.

Prison Reforms:

The journey, which commenced in 1966, has thus, during the last 30 years, planted
many milestones. But it seems there are vet promises to keep and miles to go
before one can sleep. We have to be pragmatic also. Constitutional rights of the
prisoners shall have to be interpreted in such a way that larger public interest does
not suffer while trying to be soft and considerate towards the prisoners. For this, it
has to be seen that more injury than is necessary is not caused to a prisoner. At the
same time efforts have to be made to reform him so that when he comes out of
prison he is a better citizen and not a hardened criminal. It would be useful to note
what is the general position of prisons in the country presently. To bring home this,
it would be enough to note what has been mentioned in the 1994-95 Annual Report
of National Human Rights Commission in this regard at page 13 in para 4.17. The
same is as below: -
"The situation in the prisons visited was varied and complex. Many, such as Tihar
Jail in Delhi were over-crowded; yet others, like that open jail in Hyderabad were
under-utilized. Often, within a single State, conditions varied from one jail to
another in this respect, pointing to the need for a more rational Statewide use of
facilities. The Commission saw a few jails which were notably clean and where the
diet was reasonable such as the Central Jail in Vellore. Unfortunately, it saw many
others which are squalid, such as the newly constructed Central Jail in Patna.In yet
others, the diet was inferior, and the management was denounced by the inmates
as brutal and corrupt. In some, care was being taken to separate juveniles from
others, petty offenders from hardened criminals. In others, no such care was being
taken and the atmosphere appeared to nurture violence and criminality. In a few,
major efforts were being made to reform conditions, to generate employment in a
worthwhile and remunerative way, to encourage education and restore dignity. In
other, callousness prevailed, prisoners were seen in shackles, mentally disturbed
inmates- regardless of whether they were criminal or otherwise- were incarcerated
with others, with no real effort being made to rise above the very minimum required
for the meanest survival. Where prisoners worked, their remuneration was often a
pittance, offering scant hope of savings being generated for future rehabilitation in
society. By and large, the positive experiences were the exceptions rather than the
rule, dependant more upon the energy and commitment of individual officials rather
than upon the capacity of the system to function appropriately on its own."

The literature on prison justice and prison reform shows that there are nine major
problems which afflict the system and which need immediate attention. These are:
(1) overcrowding; (2) delay in trial; (3) torture and ill- treatment; (4) neglect of
health and hygiene; (5) insubstantial food and inadequate clothing ;(6) prison vices;
(7) deficiency in communication; (8) streamlining of jail visits; and (9) management
of open-air prisons.

Overcrowding

That our jails are overcrowded is a known fact. To illustrate, in Tihar Jail as against
the housing capacity of 2,500 persons in 1994-95, there were 8,500 prisoners.
Overcrowding contributes to a greater risk of disease, higher noise levels,
surveillance difficulties, which increase the danger level. This apart, life is more
difficult for inmates and work more onerous for staff when prisoners are in over
capacity.

Overcrowding affect the health of prisoners. The same also very adversely affects
hygienic condition. It is, therefore, to be taken care of. The release on bail of certain
categories of undertrial prisoners, who constitute the bulk of prison population, has
to result in lessening the over capacity. It would be useful to refer here to the
Seventy-Eighth Report of the Law commission of Indian on `Congestion of Undertrial
Prisoners in Jails'. The Commission has in Chapter 9 of the Report made some
recommendations acceptance of which would relieve congestion in jails. These
suggestions include liberalisation of conditions of release on bail. Overcrowding may
also be taken care of by taking recourse to alternatives to incarceration. These
being: (1) fine; (2) civil commitment; and (3) probation.

As to release on probation, it may be stated that it really results in suspension of

required to execute bond under the provisions of the Probation of Offenders Act,
1958, requiring maintenance of good conduct during the probationary period, the
failure to do which finds the concerned person in prison again. That Act has
provision of varying conditions of probation and has also set down the procedure to
be followed in case of the offenders failing to observe conditions. Overcrowding is
reduced by releases on parole as well, which is a conditional release of an individual
from prison after he has served part of the sentence imposed upon him.
Chapter 20 of the Report of All India Committee on Jail Reforms (1980-83) chapter
deals with the system of remission, leave and premature release. The Committee
has mentioned about various types of remission and has made some
recommendations to streamline the remission system. As to premature release,
which is the effect of parole, the Committee has stated that this is an accepted
mode of incentive to a prisoner, as it saves him from the extra period of
incarceration; it also helps in reformation and rehabilitation. The Committee has
made certain suggestions in this regard too.

There is yet another baneful effect of overcrowding. The same is that it does not
permit segregation among convicts - Those punished for serious offences and for
minor. The result may be that hardened criminals spread their influence over
others. Then, juvenile offenders kept in jails (because of inadequacy of alternative
places where they are required to be confined) get mixed up with others and they
are likely to get spoiled further. So, problem of overcrowding is required to be
tackled in right earnest for a better future.

Delay in Trial

It is apparent that delay in trial finds an undertrial prisoner (UTP)in jail for a longer
period while awaiting the decision of the case. The release of UTP on bail where the
trial gets protracted would hopefully take care to a great extent the hardship
caused in this regard.

It has to be remembered that production before the court on remand dates is a

statutory obligation and the same has a meaning also inasmuch as that the
production gives an opportunity to the prisoner to bring to the notice of the Court,
who had ordered for his custody, if he has faced any ill-treatment or difficulty during
the period of remand. It is for this reason that actual production of the prisoner is
required to be insured by the trial court before ordering for further remand.The
mental agony, expense and strain which a person proceeded against in criminal law
has to undergo and which, coupled with delay, may result in impairing the capability
or ability of the accused to defend himself have persuaded the constitutional courts
of the country in holding the right to speedy trial a manifestation of fair, just and
reasonable procedure enshrined in Art.21. Speedy trial would encompass within its
sweep all the stages including investigation, inquiry, trial, appeal, revision and
retrial. In short everything commencing with an accusation and expiring with the
final verdict, the two being respectively the “terminus a quo and terminus ad quem”
of the journey which an accused must necessarily undertake once faced with an
implication.

In P. Ramachandra Rao Vs State of karnataka the court observed that it must be left
to the judicious discretion of the court seized of an individual case to find out from
the totality of circumstances of a given case if the quantum of time consumed up to
a given point of time amounted to violation of Art.21 and if so, then to terminate the
particular proceedings and if not, then to proceed ahead. The test is whether the
proceedings or trial has remained pending for such a length of time that the
inordinate delay can legitimately be called oppressive and unwarranted. The
criminal courts should exercise their available powers, such as those under Sections
309, 311 and 258 of the Criminal Procedure Code to effectuate the right to speedy
trial. A watchful and diligent trial judge can prove to be a better protector of such
right than any guidelines. In appropriate cases, inherent power of High Court under
Sec.482 can be invoked to make such orders, as may be necessary, to give effect to
any order under CrPC or to prevent abuse of the process of any court, or otherwise,
to secure the ends of justice. The power is wide and if judiciously and consciously
exercised, can take care of almost all the situations where interference by the High
Court becomes necessary on account of delay in proceedings or for any other
reason amounting to oppression or harassment in any trial, inquiry or proceedings.
In appropriate cases the High Courts have exercised their jurisdiction under Sec.482
CrPC for quashing of first information report, investigation, and terminating criminal
proceedings if the case of abuse of process of law was clearly made out. Such
power can certainly be exercised on a case being made out of breach of
Fundamental Right conferred by Art.21 of the Constitution.

Torture and ill-treatment

Apart from torture, various other physical ill treatments like putting of fetters, iron
bars are generally taken recourse to in jails. Some of these are under the colour of
provisions in Jail Manuals.
.
Neglect of health and hygiene

The Mulla Committee has dealt with this aspect in Chapter 6 and 7 of its Report, a
perusal of which shows the pathetic position in which most of the jails are placed
insofar as hygienic conditions are concerned. Most of them also lack proper facilities
for treatment of prisoners. The recommendations of the Committee in this regard
are to be found in Chapter 29. The society has an obligation towards prisoners'
health for two reasons. First, the prisoners do not enjoy the access to medical
expertise that free citizens have. Their incarceration places limitations on such
access; no physician of choice, no second opinions, and few if any specialists.
Secondly, because of the conditions of their incarceration, inmates are exposed to
more health hazards than free citizens. Prisoners therefore, suffer from a double
handicap.
Insubstantial food and inadequate clothing

There is not much to doubt that the rules contained in concerned Jail Manual dealing
with food and clothing etc. to be given to prisoners are not fully complied with
always.

All that can usefully he said on this aspect is the persons who are entitled to inspect
jails should do so after giving shortest notice so that the reality becomes known on
inspection. The system of complaint box introduced in Tihar Jail during some period
needs to be adopted in other jails also. The complaint received must be fairly
inquired and appropriate actions against the delinquent must be taken. On top of
all, prisoners must receive full assurance that whoever would lodge a complaint
would not suffer any evil consequence for lodging the same.

Prison vices

It may only be stated that some vices may be taken care of if what is being stated
later on the subject of jail visits is given concrete shape. Many of the vices are
related to sexual urge, which remains unsatisfied because of snapping of marital life
of the prisoner. If something could be done to keep the thread of family life
unbroken some vices many take care of themselves, as sexual frustration may
become tolerable. The aforesaid seems to be a more rational way to deal with
prison vices rather than awarding hard punishment to them. In the situation in
which they are placed, a sympathetic approach is also required.

Deficiency in communication

While in jail, communication with outside world gets snapped with a result that the
inmate does not know what is happening even to his near and dear ones. This
causes additional trauma. A liberalized view relating to communication with kith and
kin specially is desirable. It may be pointed out that though there may be some
rationale for restricting visits, but insofar as communication by post is concerned,
there does not seem be any plausible reason to deny easy facility to an inmate.

Streamlining of jail visits

Prison visits fall into three categories: (1) relatives and friends; (2) professionals;
and (3) lay persons. In the first category comes the spouse. Visit by him/her has
special significance because a research undertaken on Indian prisoners sometime
back showed that majority of them were in the age group of 18 to 34, which shows
that most of them were young and were perhaps having a married life before their
imprisonment. For such persons, denial of conjugal life during the entire period of
incarceration creates emotional problems also. Visits by a spouse are, therefore, of
great importance. It is, of course, correct that at times visit may become a difficult
task for the visitors. This would be so where prisoners are geographically isolated.
This apart, in many jails facilities available to the visitors are degrading. At many
places even privacy is not maintained. If the offenders and visitors are screened,
the same emphasizes their separation rather than retaining common bonds and
interests. There is then urgent need to streamline these
visits.

The frequent jail visits by family members go a long way in acceptance of the
prisoner by his family and small friendly group after his release from jail finally, as
the visits continue the personal relationship during the term of imprisonment, which
brings about a psychological communion between him and other members of the
family.

As to visits by professionals, i.e. the lawyer, the same has to be guaranteed to the
required extent, if the prisoner be a pre-trial detainee, in view of the right conferred
by Article 22(1) of the Constitution.

Management of open air prisons

Open-air prisons play an important role in the scheme of reformation of a prisoner,

which has to be one of the desideratum of prison management. They represent one
of the most successful applications of the principle of individualization of penalties
with a view to social readjustment. It has been said so because release of offenders
on probation, home leave to prisoners, introduction of wage system, release on
parole, educational, moral and vocational training of prisoners are some of the
features of the open air prison (camp) system. In terms of finances, open institution
is far less costly than a closed establishment and the scheme has further advantage
that the Government is able to employ in work, for the benefit of the public at large,
the jail population, which would have otherwise remained unproductive. The
monetary returns are positive, and once put into operation, the camps pay for
itself.
The whole thrust is to see that after release the prisoners may not relapse into
crimes, for which purpose they are given incentives to live normal life, as they are
trained in the fields of agriculture, horticulture etc. Games, sports and other
recreational facilities, which form part of the routine life at the open-air camps,
inculcate in the prisoners a sense of discipline and social responsibility. The prayers
made regularly provide spiritual straight. Open air prison; however, create their own
problem, which are basically of management. These problems are not such which
cannot be sorted out.

For the greater good of the society, which consists in seeing that the inmates of a
jail come out, not as a hardened criminal but as a reformed person, no managerial
problem is insurmountable. So, let more and more open-air prisons be opened. To
start with, this may be done at all the District Headquarters of the country.

The Jail Reform Committee, 1980-83 has given the following recommendations in
this regard:
(1) Departmentalisation: There shall be in each State and Union Territory a
Department of Prisons and Correctional services dealing with the adult and the
young offenders- their institutional care, treatment, aftercare, probation and other
non-institutional services.
(2) Under trial prisoners (UTPs): The State shall endeavour to evolve proper
mechanism to ensure that no under trial prisoner is unnecessary detained. This
shall be achieved speeding up trials, simplification of bail procedures and periodic
review of cases of under trial prisoners. Under trial prisoners should, as far as
possible, be confined in separate institutions.
(3) Alternatives to imprisonment: Since it is recognized that imprisonment is not
always the best way to meet the objectives of punishment, the government shall
endeavour to provide in law, new alternatives to imprisonment such as community
service, forfeiture of property, payment of compensation to victims, public censure,
etc in addition to the ones already existing, and shall specifically ensure that the
Probation of Offenders Act, 1958 is effectively implemented throughout the
country.
(4) Suitable living conditions: Living condition in every prison and allied institutions
shall be compatible with human dignity in all aspects such as accommodation,
hygiene, sanitation, food, clothing, medical facilities etc. All factors responsible for
vitiating the atmosphere of these institutions shall be identified and dealt with
effectively.
(5) Prison cadre: Prison service shall be developed as a professional career service.
The State shall endeavour to develop a well-organised prison cadre based on
appropriate job requirements, sound training and proper promotional avenues.
(6) Open prisons: Prisons are hitherto a closed world. It is necessary to open them
to some kind of positive and public discernment. Selected eminent public men shall
be authorized to visit prisons and give independent report on them to appropriate
authorities.
(7) Essential functions: Probation, aftercare, rehabilitation, and follow up offenders
shall form an integral part of the functions of the Department of prisons and
correctional services.
(8) Planned and systematic development: The development of prisons shall be
planned in a systematic manner keeping in view the objectives and goals to be
achieved. The progress of implementation of such plans shall be continuously
monitored and periodically evaluated.
(9) Resource allocation: The government at the Center and in the States/Union
Territories shall endeavour to provide adequate resources for the development of
prisons and other allied services.
(10) National development plan: The government recognizes that the process of
reformation and rehabilitation of offenders is an integral part of the total process of
social reconstructions, and therefore, the development of prison shall find a place in
the national development plans.

Judicial response:

In Lingala v Public Prosecutor the Supreme Court observed: “The court has
responsibility to see that punishment serves social defence, which is the validation
of deprivation of citizen's liberty. Correctional treatment, with a rehabilitative
orientation, is an imperative of modern penology. A hospital setting and a
humanitarian ethos must pervade our prisons if the retributive theory, which is but
vengeance in disguise, is to disappear and deterrence as a punitive objective gain
success not through the hardening practice of inhumanity inflicted on prisoners but
by reformation and healing whereby the creative potential of the prisoner is
unfolded. These values have their roots in Article 19 of the Constitution which
sanctions deprivation of freedoms provided they render a reasonable service to
social defence, public order and security of the State. By cruel treatment within the
cell you injure his psyche and injury never improves. Nay, you make him recidivist,
embittered and ready to battle with society on emerging from the jail gates. It is
obvious that it is unreasonable to be torture some, as it recoils on society and it is
reasonable to be compassionate, educative and purposeful because it transforms
the man and makes him more social. On appropriate motion made to this Court
showing violation of the residual rights of a prisoner by unnecessary cruelty and
unreasonable impositions and denials and deprivations within the prison-setting, the
judicial process will call to order the prison authorities and make them respect the
fundamental rights of the appellants. Prisoners are not non-persons. Our prisons are
not laudably different even in the matter of homosexuality. The point of no return in
social defence arrives if imprisonment is not geared to therapeutic goals. On release
such an offender is 'caught in a "revolving door"-leading from arrest on the street
through a brief unprofitable sojourn in jail back to the street and eventually another
arrest. The jails overcrowded and put to use for which they are not suitable have a
destructive effect upon.... inmates”.

In Dharambir v State of U.P the Supreme Court gave the rationale for the use of
open prison system for reformation and rehabilitation of the offenders. The court
observed: “One of the principal purposes of punitive deprivation of liberty,
constitutionally sanctioned, is decriminalization of the criminal and restoration of his
dignity, self-esteem and good citizenship, so that when the man emerges from the
forbidden gates he becomes a socially useful individual. The long prison terms do
not humanise or habilitate but debase and promote recidivism. Life imprisonment
means languishing in prison for years and years. Such induration of the soul
induced by indefinite incarceration hardens the inmates, not softens their
responses”. Therefore, the Court issued the following directions designed to make
the life of the sentence inside jail restorative of his crippled psyche:
(a) dispatching the two prisoners to one of the open prisons in U.P., if they
substantially fulfill the required conditions;
(b) being agriculturists by profession they be put to use as or them small wages;
(c) by keeping the prisoners in contact with their family
(i) by allowing members of the family to visit them and
(ii) by permitting the prisoners under guarded conditions at least once a year, to
visit their families and
(d) the prisoners to be released on parole for two weeks, once a year, which will be
repeated throughout their period of incarceration provided their conduct, while at
large, is found to be satisfactory.

In Rama Murthy v State of Karnataka the Supreme Court issued the following
guidelines to various authorities for the streamlining of prison reforms in India:
(1) To take appropriate decision on the recommendations of the Law Commission of
India made in its 78th Report on the subject of `Congestion of undertrial prisoners in
jail' as contained in Chapter 9.
(2) To apply mind to the suggestions of the Mulla Committee as contained
inChapter20 of Volume I of its Report relating to streamlining the remission system
and premature
release (parole), and then to do the needful.
(3) To consider the question of entrusting the duty of producing UTPs on remand
dates to the prison staff.
(4) To deliberate about enacting of new Prison Act to replace century old Indian
Prison At, 1894.
(5) To examine the question of framing of a model new All India Jail Manual.
(6) To reflect on the recommendations of Mulla Committee made in Chapter 29 on
the subject of giving proper medical facilities and maintaining appropriate hygienic
conditions and to take needed steps.
(7) To ponder about the need of complaint box in all the jails.
(8) To think about introduction of liberalisation of communication facilities.
(9) To take needful steps for streamlining of jail visits.
(10) To ruminate on the question of introduction of open-air prisons at least in the
District Headquarters of the country.

The Supreme Court has also given directions from time to time in various cases for
the amelioration of prison conditions. These are:
(1) Separation of the young offenders: The young inmates must be separated and
freed from exploitation by adults.
(2) Companionship: Subject to discipline and other security criteria, the right of the
society of fellow men, parents and other family members cannot be denied in the
light of Article 19 and its sweep.
(3) Legal consultancy: Lawyers nominated by courts be given all facilities for
interview, visits, and confidential communication with prisoners, subject to
discipline and security considerations.
(4) Judicial surveillance: District Magistrates and Sessions Judges shall personally or
through surrogates, visit prisons in their jurisdiction and afford effective
opportunities for ventilating legal grievances of the prisoners.
(5) Standard Minimum Rules: The State shall take steps to keep up to the Standard
Minimum Rules for treatment of prisoners recommended by the United Nations,
especially those relating to work and wages, treatment with dignity, community
contact and correctional strategy.
(6) Just and rationale Prison Act and Manual: The Prisons Act needs modification and
the Prison Manual total overhaul. A correctional cum orientation course has become
necessitous for the prison staff indicating the constitutional values, therapeutic
approaches and tension free management.
(7) Legal protection of prisoner’s rights: The court shall protect the prisoner’s right
by its writ jurisdiction plus contempt power. To make this jurisdiction viable, free
legal services to the prisoners shall be promoted through recognized legal aid.

Conclusion

The talk about treatment and training in prisons is not rhetoric; it can prove to be
real, given the zeal and determination. We cannot afford to fail in this sphere, as a
sound prison system is a crying need of our time in the backdrop of great increase
in the numbers of prisoners and that too of various types and from different strata
of society. Efforts should be made to improve our prison system by introducing new
techniques of management and by educating the prison staff with our constitutional
obligations towards prisoners. Rest would follow, as day follows the night. Let the
dawning ray of hope see the end of gloom cast on the faces of majority of prisoners
and let a new awakening percolate every prison wall