Prisoners Right: Need for Reform
INTRODUCTION -
It is a miserable reflection, charged with cynicism and fidelity, that governments have come and
governments have gone, but jails largely manage to preserve the eerie heritage and ignore the
Mahatma's message.
"Hate the crime, not the Criminal" - Mahatma Gandhi
Penal reforms have undergone several changes in the last few decades which led to the
remodeling of perception of people towards Prisoners. The earlier concept of crime, criminal and
convict have totally changed. In India, the government has adopted several measures to introduce
rehabilitative and reformative changes in the life of prisoners. A prisoner is a person who is
deprived of liberty against his will. A person as a prisoner cannot be siege of all his rights but
there are certain rights and liberties which remain intact to prisoners.
HISTORY-
The historical account of Ancient India clearly proves that Hindu and Islamic civilizations are in
no way inferior to European-Christian civilization in protecting the human rights of prisoners. In
Ancient time, crimes and wrongs were chastened with religious ordain or secular punishments
but the notion of Prison was there to maintain law and order. For instance, Brahaspati laid stress
on closed prisons whereas, in the Vedic Period, the administration of justice was not the unit of
state duties. Dharma was not a passed legislature instead it was based on Shrutis and Smritis.
King was its head, it was his duty to punish the wrongdoer and if he failed to discharge his duties
then he had to suffer. Early prisons were only the place of detention of wrongdoers. In ancient
times, the main aim of punishment was to keep evil away from society and to punish him for the
wrong he had committed. The conditions of inmates in Pre-Buddhist time were terrible as they
were kept under chains. After the Maurya dynasty, Jatakas gave a clear description that political
prisoners were released at the time of war and were forcefully employed in the army. Emperor
Ashoka implemented reformative measures in prisons. As per the life-records of Hsuan Tsang,
prisoners were given harsh punishment and were treated as slaves.
In the Medieval period, the condition of prisoners remained as it was in ancient times. There was
no reformation in the condition of prisoners but during the rule of Tipu Sultan in 1783, he came
to an agreement with Britishers for the release of war prisoners.
Before the 1970s, there was no such right conferred to prisoners but it is after the 1970s and
1980s that human right agency took the charge of providing justice to the prisoners, by putting
aside the factor of criminality in them and considering them as human. Justice Krishna Iyer in
Rajendra Prasad v State of Uttar Pradesh1 held "every saint has a past and every sinner a future.
A prisoner is a human too and he too should be given rights eliminating a few as he should not
be given full freedom because of the wrong he committed."
In Charles Sobhraj v Superintendent Central Jail, Tihar, New Delhi 2, Justice Krishna Iyer held,
“Imprisonment does not spell farewell to fundamental rights although, by a realistic re-appraisal,
Courts will refuse to recognize the full panoply of Part III enjoyed by a free citizen.”
In Kharak Singh v State of Uttar Pradesh3, Court held that "life in Article 21 is more than the
mere existence”. In Maneka Gandhi v Union of India,4 The court broadened the scope of Article
21 and constructed a wall on the state that the power used by the state should be just and
reasonable. Prisoners are not only given constitutional rights but are bestowed with statutory
rights too. Such statutory rights are preserved in the Prisoners Act, 1894.
Legislature in favor of Prisoners
Injustice anywhere is a threat to justice everywhere. - Martin Luther King Jr.
With the wake of Human Rights, concern towards prisoners gets hype, legislations scope was
broadened and much new legislation made in favor of prisoners. As per the recent NCBR report,
India at present have around 4,50,696 inmates out of which 3,08,718 are under trials or people
who have yet to be found guilty of the violation they are blamed of. This suggests that the high
extent of under trials in the overall prison population may be the result of pointless arrests and
ineffective legal aid. Out of this statics, there are around 18873 women prisoners.
INDIAN CONSTITUTION
Indian Constitution guarantees Fundamental Rights to its Citizens as well as to Persons.
Prisoners do not become less of a person just because they’ve committed a crime. Everyone is
entitled to basic human rights; prisoners are deprived of certain liberties such as “freedom of
movement, freedom of profession and freedom to settle.” However, they are guaranteed rights
like ‘Right to equality’, ‘Freedom of speech and expression’, ‘Protection in respect of conviction
for the offence’, ‘Right to life and personal liberty’ and ‘Protection against arrest and detention
in certain cases’.
JUDICIAL PRONOUNCEMENTS
1Rajendra Prasad v State of Uttar Pradesh, 3 SC, 916(1979)
2Charles Sobhraj v Superintendent Central Jail, Tihar, New Delhi, 63, DLT, 91(1996)
3Kharak Singh v State of U.P, 1SCR,1295( 1963)
4Maneka Gandhi v Union of India, 2,SCR, 597(1978)
"All the rights secured to the citizens under the Constitution are worth nothing, and a mere
bubble, except guaranteed to them by an independent and virtuous Judiciary." - Andrew Jackson
Role of Judiciary as the defender of the constitution and that of fundamental rights of the people
makes it more respectable than the other two organs. Judiciary which acts as the protector against
the possible excesses of Legislative and Executive have been always a step ahead in providing
basic rights to inmates.
In Issma v State of Uttar Pradesh5, Court held 'the person arrested may himself make an
application for grant of bail. He may also be permitted by the court to argue his bail application
in person'.
In Tara Singh v State of Punjab6, the court held “It is the right of the accused to be defended by a
lawyer of his choice.”
In Hussain Ara Khatoon v Home Secretary, State of Bihar 7, The court held ‘that the State is
under a constitutional mandate to provide a lawyer to such accused if the need for justice is so
required’.
Enactment and Rules -
The Prisons Act, 1894 – For administering prisons in India, the first act was framed in 1984 i.e.,
The Prisons Act, 1984. This statute provides provisions for dealing with prisons and to regulate
the prisons adequately, for instance, Section 4 of the statute laid down provisions of good
accommodating conditions for prisons that includes proper sanitation facility. Section 7 provides
how the prisoners will be kept i.e., the number of prisoners in one room, about their safety. The
statute also laid down provisions for regular medical check-up of prisoners under section 24(2).
The law also made provisions for separate compartments for male and female, civil and criminal
and convicted and under trials inmates as per section 31 and 33. Provisions for sufficient clothing
and bedding are also provided for under trials and civil inmates.
The Prisons Act, 1900 - Section 30 of this act says it is the obligation of the Government to
release the detainee of unsound mind confined under any offence and to be provided proper
treatment.
The Transfer of Prisons Act, 1950 - This act was enacted to shift prisoners from one state to
another for rehabilitation or professional training and to free overcrowded shells within the state.
5Issama v State of Uttar Pradesh, CriLj, 2432(1993)
6Tara Singh v State of Punjab, SCR, 441(1951)
7Hussain Ara Khatoon v Home Secretary, State of Bihar, 3,SCR, 532(1979)
The Prisons (Attendance in Courts) Act, 1955 - This act was enacted to provide for attendance
in court of persons detained in prison for obtaining their testimony or answering criminal
allegations.
REFORMS
From the time tome, the Government, Judiciary and various commissions provided advisories,
suggestions, for the proper and efficient administration of Prisons.
A committee for dealing with Jail Reforms was set up by the Government under the guidance of
Justice A.N. Mulla crowd-pleasingly known as Mulla Committee. In 1983, the committee
submitted its report. The Committee pointed out some of the most prominent changes that need
to be brought in Indian Jails, some of them are;
1. Need to put Juveniles offenders away from hardened Criminals, i.e. to put
juveniles in a separate jail.
2. The committee suggested for enhancing the food, clothing and sanitation
conditions.
3. A proper training session for police personnel so as to make easy for them to deal
with Prisoners.
4. The recommendation was made for an All India Service termed as Prisons and
Correctional Service.
5. Need for Transparency in Prisons was also suggested, the committee was of the
opinion that common people and Journalists should be allowed in Prisons.
6. A large chunk of Prisoners are under trials, lenient bail scheme should be
endorsed and provisions of the speedy trial should be launched for under trials.
Krishna Iyer Committee: A committee was established by Krishna Iyer known as “Krishna Iyer
Committee” in 1987. The committee mainly worked for women inmates. The committee
suggested that the number of women police personnel should be increased so that it would be
easy to deal with women inmates.
Other Recommendations:
● Supreme Court in Dilip K. Basu vs State of West Bengal & Ors 8 ordered that "The State
Governments shall take steps to install CCTV cameras in all prisons in their respective
States"
● The Model Prison Manual 2016 gave a section on “Legal Aid” to under trials viz.
legitimate safeguard, meet with legal advisors, marking of Vakalatnama, application to
Courts for lawful guide at Government cost and so forth.
8Dilip K. Basu vs State of West Bengal & Ors, CRL.M.P. NO.16086 (1997)
● In 2017 Law commission endorsed that under-trials who have completed 33% of their
maximum sentence for offences attracting seven years of imprisonment be released on
bail.
● In 2020, directions were issued for the behavioral changes in the attitude of Prison
Officers such as sympathetic and patient with inmates will act as an emotional support
base to inmates.
● Introducing a system of rewarding, to the deserving inmates will help them in the path of
correction. The exemplary conduct of Prison Personnel will go far to urge detainees to
return to society at large and make it a better place for successors.
● The Ministry of Home Affairs has taken steps to address the issue of overcrowding. Sec
436A has been inserted in (Cr.P.C.) which provides, "Under trials are to be released on a
personal bond if they have undergone half of the maximum term of imprisonment they
would have faced if convicted."
● Data showed only 929 under trials were being released out of 1,557 who were found
eligible. Research by Amnesty India has discovered that police personnel are often
unaware of this segment and reluctant to apply it, to terminate this trouble an advisory
was issued for the installment of E-Prisons software to enlist the data about inmates to
assist in identification.
● The Government had also introduced the idea of plea bargaining through Section 265-A
of Cr.P.C. which enables pre-trial negotiation between the defendant and the prosecution
during which the defendant agrees to plead guilty in exchange for certain concessions by
the prosecutor. States/UTs are requested to make use of this provision.
● The Supreme Court in W.P. No.406/2013 also reiterated to authorities to address the
issue of congestion and under-trials in prisons with the aid of the Under Trial Review
Committee.
OPEN JAILS
Though a number of committees, court orders and laws have been made to remodel the prison
system but not employing these recommendations have put the prison justice to shame and
shaken people's confidence in the firm fighting functionality of the legal procedure.
A new form of Prison System has been developed in India known as OPEN Prisons or semi-open
prisons. The concept of open prisons was first developed in the UK in the 1930s. The First All
India Jail Committee was appointed in 1836, to review the prison administration but no result
was achieved. The Second Jail Committee recommendation in 1877 was accepted and has since
been in practice. Due to these open prisons, there has been a tremendous decline in the
overburden of the prisons as petty-crime offenders are now separated from heinous-crime
offenders, it has also reduced the cost of security as open prisons don't need many forces, and the
prisoners are permitted to discover employment in and out of the prison.
There are currently 69 Open Jails. In Open Jails, inmates stay in a dormitory and are free to walk
around. There are no handcuffs, no cells, lock-ups or armed security – the inmates lead a self-
disciplined life. Healthy and disciplined inmates from the state’s central jails who have been
allotted regular parole and have completed three years of imprisonment in a closed jail are
eligible to be admitted in open jails. Prisoners are selected by a selection committee. Habitual
offenders, convicts serving death sentences, terrorists, those convicted for heinous crimes against
women and children, and those charged under the POCSO Act are not considered for the open
prison.
CONCLUSION
The immediate consequence that follows a criminal act is punishment. Punishment should not be
of a nature that even after the completion of the term, the prisoner suffers from its impacts. Its
effect should come to an end after the completion of the term. The prisoner should not be
targeted mentally and should be given lessons so that he can wash off the wrong in him. He
should be given a chance of rehabilitation. The authorities have beaten the drum for many
changes but desired results have not been achieved. There is a need for bringing a firm rule for
implementing these suggestions effectively and efficiently. As there are sufficient proposals for
setting an example to the world of the finest system of Prisons in India.
