Role of Prisons in Modern Penology in India

Prison System in Pre-British period

The main features of the prison system that was prevailed in the pre-
British period are as follows:

 There were no prisons in Modern sense.

 There were no descriptions of internal administration of prisons.
 There were no rules for maintenance and functioning of prisons.
 There were no existence of separate prison service and courts were not
feeding centre for prisons.

Modern Prison System in India

Incarceration (Prison) in its pure and simple form is a kind of cruel or coercive
sanction, its object being primarily to deprive the offender of his liberty, which is
the most serious damage, which can be caused to a human being. The
imprisonment was a very usual form of punishment in Mughal India, there were
no specific rules governing it. Prisoners were treated as animals because there
was no regard for their rights. The Prisons in India, at the time of British takeover
of the country by the East India Company were in a terrible condition. This was
inevitable in the criminal justice system where deterrence was the only aim of the
Prison system.
In 1786 Cornwallis formulated a new scheme, which may be referred to as” the
trying birth of the modern Prison System in India.” Accordingly, the control and
management of the jails were transferred to European hands. He had tried to
secure health and moral as well as safety of the prisoners. During 19th century
the prison was a well-recognized, separately identifiable institution for the
detention of under trials as well as convicts.
APPOINTMENT OF VARIOUS COMMITTEES

For the internal organization of the modern Prison System, and for achieving the
objectives of imprisonment, various Commissions and Committees were
appointed and upon their recommendations the Indian Penal Code, 1860; the
Prison Act of 1894 and the Prisoners Act of 1900 were passed which are the
current laws regarding the Prison in India. After the First World War, an All India
Jail Manual Committee 1919-20 was formed. In its repots, a clear departure from
earlier stands on deterrent aspect was made and the principle of reformation of
prisoners was accepted. The committee observed:

The Indian Prison Administration has lagged behind on the reformative side of
Prison work. It has failed so far to regard the prisoner as an individual. ………..
It has lost sight of the effect, which humanizing and civilizing influences might
have on the mind of the individual prisoner. …………. they tend to harden if not
to the great and that most men come out of prison worse than they went in.

With regard to the report of the above Committee of 1919-20 it may be remarked,
“laid the foundation stone of modern Prison system in India.” The need for
humanizing jail administration was universally recognized at the threshold of
independence. After the independence the thought and movement for prisoners’
rights got momentum. It is being recognized that a criminal must be considered a
victim of social circumstances, a person requiring treatment rather than
punishment. The Mulla Committee has recommended that the conditions of
prisons should be improved by making adequate arrangement for food, cloth,
sanitation, ventilation etc. Probation, after care, rehabilitation and follow-up of
offenders should form an integral part of prison service.
The Prison Act was passed by the Government of India in 1870. This Act laid
down that there should be a Superintendent, a medical officer, a jailor and some
other subordinate officers as the local government thinks necessary.

This Act also specified and categorised the duties of the prison officers. This
Act also provide provision related to the separation of male prisoners from
female, separation of children offenders from adult, and separation of criminal
from civil offenders. In 1877 and 1889 third and fourth enquiry committee was
constituted. On the recommendations of the committees the Prison Act 1894
was passed. Due to the effect of this Act, there was a considerable material
progress in the concept of jails during this period.

In 1919 the British government appointed a joint commission of officials which

investigate about the management of jails and suggest improvement in the
maintenance of jails. This commission gave recommendations related to the
separate institution like Borstal school for juvenile delivements. Offenders
whose trial is pending should be kept separate from the convicted offender,
there should be classification of habitual and casual offenders between the
adults.

The report of the committee also through some light on the view of the
transportation of offenders to the Andaman Island and recommended to stop
this practise. Solitary confinement was also abolished after this report. All
convicts who were the below of 29 years of age were to be cared under the adult
education programmes and libraries were also established in the jails. The
quality of food was also improved and two pairs of clothes should be provided
to the prisoners.
EFFECT OF MODERNIZATION:
The modernization process has brought certain fundamental changes in our socio-
cultural life. Some of these changes have also affected the lives of women. In the
liberalized and globalized era of economy, there are more opportunities for
women’s empowerment however, these opportunities have also led to emergence
of new social conditions in which emancipation and liberation have become
prominent. Indian women are also experiencing considerable stress and strain due
to the impact of modernization which are being increasingly compelled to deviate
from our traditional norms and report to anti-social or criminal behaviour.

EFFECT OF ENVIRONMENTAL FACTORS:

The present study has been an attempt to understand the criminal behaviour
among women. The empirical evidence has shown that socio-cultural, economic
and environment factors have a vital role to play in female criminality. Thus, there
is a considerable need for strengthening the loosening grip of the family. These
institutional controls direct most of the behaviour of its member by internalizing
in them certain values like loyalty, security, protection, love and affection and
strict rules to its moral conduct. Again, poverty, illiteracy, lack of education and
ignorance combined with a social system dominated by traditional value system
affect adversely to women leading to criminal behaviour. Since a large number
of crimes committed by women are due to adjustment problems of interpersonal
relations in family, there is need to adopt a flexible sentencing policy for female
criminals.

RIGHTS OF PRISONERS:
There is no specific provision in the Constitution which deals with prisoners’
rights. Hence the SC adopted an activist role and interpreted Articles 14, 19 and
21 in Part III along with Articles 38, 39, 39A and 42 in Part IV to spell out the
various fundamental rights available to the prisoners.
The study of the various rights of the prisoners, enunciated in the catena of
judgments in the post Maneka Gandhi period can be done under four sub-
headings:

TORTURE:
The SC while exploiting the Charter of Unremunerated Rights' i.e., Art. 21, held
in Francis Caralie v. Administrator, Delhi that "there is implicit in Art. 21 the
rights to protection against torture and human degrading treatment". In other
words, a convicted man is not reduced from a person to a non-person so as to be
subject to the whim of the prison administration.
The trend is clearly reflected in Sunil Batra v. Delhi Administration where it
was held that keeping a man 'under sentence of death' in solitary confinement is
violative of Art. 21 and that the bar-fetters should not be put for an unusually long
period without justification.
In Sunil Batra v. Delhi administration, the SC laid down five principles. First,
under-trial prisoners should be separated from convicted prisoners. Secondly,
hard labour is not harsh labour. Hard labour under S. 53 of the Indian Penal Code
must be given a humane meaning. Thirdly, young prisoners should not be
exposed to sexually frustrate adult prisoners. Fourthly, the visits of the family
members of the prisoner to him should be fairly increased. And lastly,
confinement in irons should be allowed only where safe custody is impossible.
RIGHT TO SPEEDY TRIAL:
In the leading case of Hussainara Khatoon v. State of Bihar, it was held that
where under-trial prisoners have been in jail for periods longer than the maximum
term to which they could have been sentenced if convicted, then their detention
in jail is unjustified and violative of Art.
Developing this, it further held that the right to speedy trial is an integral and
essential part of the fundamental right to life and liberty enshrined in Art. 21 and
the courts have wide powers to direct the state to take proper measures like setting
up new courts, appointing more judges, etc.
RIGHT TO LEGAL AID:
It was held in Hussainara Khatoon’s Case (II) that “right to free legal aid as
given under Art. 39-A was implicit in Art. 21 because a procedure which does
not make available legal services to an accused person, who owing to his poverty
cannot afford a lawyer and who would, therefore, have to go through the trial
without legal assistance cannot possibly be treated as just fair and reasonable
procedure and is thus, violative of Art. 21.”
The Court further laid emphasis on the fact that “the State cannot take the excuse
of inadequate Infrastructural facilities for its Inability to provide free legal aid, as
it is its duty to do so.”
The principle laid down in Hussainara Khatoon’s Case gets further
strengthened by Ranchod v. State of Gujarat where it was held that adequate
care should be taken in providing competent lawyers for legal aid. In Khatri v.
State of Bihar, it was held that the legal aid should not be provided at the
commencement of the trial only, but it should be provided when the person is
brought before the magistrate for the first time.
Lastly; in the chain of these cases ensuring justice to the prisoners, comes the case
of Suk Das v. Union Territory of Arunachal Pradesh which held that it was an
obligation on the part of the Magistrate or Session Judge to tell the accused of his
right to have a lawyer at State’s cost.

RIGHT TO COMPENSATION:
In the famous Bhagalpur Blinding Case, the question that the Court addressed
was whether the Court which can certainly injunction a State from taking any
action in contravention of Art. 21 could give compensation as a form of relief
when the State has already infringed upon the person’s rights to life?
The Court taking recourse to dynamic Constitutional Jurisprudence held that it
was not helpless and certainly devise new tools and new remedies and hence, can
compensate.
This view of the Court was reinforced in Rudul Shah v. State of Bihar, where
the Court awarded Rs. 35,000/- as compensation for illegal detention for 14 years.
It pointed out that “under Article 32 the SC could pass an order for the payment
of money in the nature of compensation that would be one of the effective ways
by which the SC could prevent gross violation of the Fundamental Rights by the
administrators.”

RIGHTS OF UNDER-TRIALS AND DETENUES FOR SEPARATE

TREATMENT
The under-trials and 'preventive detenues' require separate treatments because no
guilt is to be proved against the latter. The preventive detenues are simply kept in
jail as a preventive measure which is not by way of punishment. But the system
of prisons particularly in our country has not been able to achieve its purposes for
which it was established. Generally, the under-trials as well as detenues are
treated like convicts and kept together. As in a book stated:(Indian Prison Laws
and Correction of Prisoners, written by Nitai Roy Chowdhury) One of the most
horrendous aspects of jail sentence is the fact that not only are the young housed
with the older offenders, but those awaiting trial share the same quarters as
convicted inmates. The latter individuals have little to lose in seeking sexual
gratification through assault, for they have to serve their time anyway. As matters
now stand, sex is unquestionably the most pertinent issue to the inmate's life
behind the bars. There is a great need to utilize the furlough system in corrections,
men with good record showing good behaviour should he released for weekends
at home with their families and relatives:
So, there is a need for providing special status to the under-trials' and detenues.
In the Sunil Batra, case, the Supreme Court discussed the problems of the
prisoners in wide prospective. Justice Krishna Iyer condemned the practice of
keeping under-trials and detenues with convicts and reacted against the practice
in the following words:
The under-trials, who are presumed innocent until convicted, are being sent to
jail, by contaminated made criminals - a custodial perversity which violates the
test of reasonableness in Article 19 and of fairness in Article 21. How cruel would
it be if one wants to go to a hospital for a check-up and by being kept along with
contagious cases came home with a new disease. We sound the tocsin that the
prison reform is a constitutional compulsion and its neglect may lead to drastic
court actions. Justice Krishna lyer contemned the practice of keeping under-trials
and detenues with convicts and reacted against the practice.

The rights which have emerged through various pronouncements of the courts,
may be enumerated as under:
(a) Freedom of Speech and Expression.
(b) Rights to Counsel: Free Legal Aid.
(c) Rights to be treated as Person: Right to Human Dignity.
(d) Rights against Bar-fetters, Solitary confinement and Hand Cuffing.
(e) Rights to know the Grounds of Punishment.
(f) Rights against Torture.
(g) Rights to Protection from Violent Prisoners.
(h) Rights to Wages for Prison Labours.
(i) Right to Fair Trial.
(j) Rights to Mail.
(k) Rights to Health Care.
(l) Rights against Discrimination.
(m) Right to Access to Court.
(n) Right to Speedy Trial.
(o) Right to Compensation.
(p) Right to be released on Bail.
(q) Right to get free copy of prisoner hand-book

Types of Prisons in India

In India there are three levels of Prison such as Taluka level, district level and
central level (sometimes it is also known as zonal /range level). The jails in
these levels are known as Sub jails, district jails and central jails respectively. In
general, the infrastructure, security, medical facilities, educational and
rehabilitation facilities are better from sub jail to central jail. There are also
some other types of jail such as women jails, Borstal school, open jails, and
special jails.

Central Jail
The criteria for dividing a jail as a central jail are different from state to state.
The common feature of all states central jail is that those prisoners are confined
in the central jails who are sentenced to imprisonment for a long period that is
more than two years. These jails are made for lifers and for those people who
commit heinous crime. In this type of prison, effort is made to re-establish the
morality and integrity of the prisoners.

The criminals in these jails earn their wages by doing some hard work. These
jails have larger capacity of accommodation in comparison to other jails. These
jails also have additional facility of rehabilitation. There are total 134 central
jails. Delhi has the highest number of central jails that is 16, Madhya Pradesh
have 11, Maharashtra, Punjab, Rajasthan and Tamil Nadu each have 9 central
jails, Karnataka has 8 central jails, Gujarat has 4 central jails.
Arunachal Pradesh, Meghalaya, Andaman and Nicobar Islands, Dadra and
Nagar Haveli, Daman and Diu and Lakshadweep do not have a single central
jail.

District Jail
There is not much difference between the central jails and district jails. District
jails are the main jails for those states and union territories where there is no
central jail. There are total 379 district jails in India. Uttar Pradesh has 57
district jails, Madhya Pradesh has 39, Bihar has 31, Maharashtra has 28,
Rajasthan has 24, Assam has 22, Karnataka has 19, Jharkhand has 17, Haryana
has 16, Gujarat has 11, Kerala has 11, West Bengal has 12, Chhattisgarh has 11,
Jammu Kashmir and Nagaland each has 10 district jails.

Sub Jails
In India these sub jails play the role of the sub-divisional jails. These jails are
the smaller institution situated at the sub- divisional level of the state. These
jails have the well organised and better set up of prison because they are formed
at the lower level. There are 9 states which have higher number of sub jails in
India. These states are Maharashtra has 100 sub jails, Andhra Pradesh has 99,
Tamil Nadu has 96, Madhya Pradesh has 72, Karnataka has 70, Odisha has 73,
Rajasthan has 60, Telangana and West Bengal each has 33. Odisha had the
highest capacity of inmates in various sub jails.

There are 7 states or union territories which have no sub jails. The names of
these states or union territories are Arunachal Pradesh, Haryana, Mizoram,
Manipur, Meghalaya, Nagaland, Sikkim, Chandigarh and Delhi.
Open Jails
The name of these types of jails may appear contradictory but this is true. These
jails are minimum security prisons. According to the Rajasthan Prison Rules
open jails means the prison without walls, bars and locks. In these jails only
those convicted prisoners are admitted who possess good behaviour and
satisfying the norms which are prescribed in the prison rules. Minimum security
is kept in these jails and prisoners are engaged in the agricultural activities and
allowed to earn for their families.

First open jail in India was introduced in the Kerala by the Home Minister of
Kerala P.T. Chacko in Nettukaltheri near Neyyar Trivandrum on 28 August
1962. There are 63 open jails in the seventeen states of India. Rajasthan has the
highest number of open jails that is 29. Till the end of 2015 there were no open
jails in the union territories of India. In December 2017 Supreme Court of India
directed the centre to establish more open prisons in India.

Special Jail
These jails are having maximum security prisons and have special arrangements
for the prisoners. In these jails prisoners of particular class or classes are
confined. Prisoners who are confined in special jails are those who are
convicted for the offence of terrorism, violent crimes, habitual offenders,
serious violation of prison discipline and inmates are violent and aggressive
towards other inmates. There are total 43 special jails in India. Kerala has the
highest number of special jails that is 16. Provisions related to the keeping
female prisoners in the special jail are also available in the state of Tamil Nadu,
Gujarat, West Bengal, Kerala, Assam, Karnataka and Maharashtra.
Women's Jails
Women's jails are those which are exclusively only for the female prisoners.
These jails are established for the safety of the women prisoners. These jails
comprise of female staff members. These jails are existing at sub-divisional,
district and central level. There are total 20 women's jails in India. Women's
jails have limited capacity so mostly female prisoners are confined in other
forms of jail. Maharashtra has 5 women's jails; Kerala and Tamil Nadu each
have 3 jails.

Borstal School
It is a type of youth detention centre and is used exclusively for the confinement
of minors or juveniles. The main and primary object of these schools are to
ensure care, welfare and rehabilitation of young offenders in which environment
which is suitable for children and keep them away from infecting atmosphere of
the prison. The juveniles in conflict with law are detained in Borstal School and
provide various vocational and educational training with the help of trained
teachers. For the reformation of juvenile and to prevent him from crime main
emphasis given to the education, training and moral influence.

Nine states have Borstal School. The names of these states are Himachal
Pradesh, Jharkhand, Karnataka, Kerala, Maharashtra, Punjab, Rajasthan, Tamil
Nadu, and Telangana. Tamil Nadu has the highest capacity for keeping inmates
in Borstal school. Himachal Pradesh and Kerala are the only states which have
capacity to keep female inmates in 2 of their Borstal school. There are no
Borstal school in union territories of India till the end of 2015.
Other Jails
Jails which do not fall under the above-mentioned categories then these jails are
come under the category of other jails. Only three states have other jails. The
name of these states is Karnataka, Kerala and Maharashtra and each state have
one other jail. Karnataka has the highest capacity to keep the inmates in other jail
after that Kerala and then Maharashtra has. In spite of these state no other state
or union territories of India have other jails.