A critique on prisons in India in the light of 'Re-Inhuman Conditions in 1382 Prisons'

The author of this article is Gautham Vishnu N, 1st Year LLM student at the Central University of Kerala.

The conditions of prisons in India in the light of the case law ‘Re-Inhuman Conditions In 1382 prisons’ are being critically analysed in this work.

This article had won 1st prize in the Article writing competition LJRF Voice had conducted as part of the 1-week internship in Legal Journalism.

Introduction

“If you want total security, go to prison. There you’re fed, clothed, given medical care and so on. The only thing lacking is freedom”.
Dwight D. Eisenhower ¹

The Merriam-Webster dictionary defines prison as a place of detention especially for offenders. Old Crime Law schools introduced cruel methods of imprisonment because according to them, people who have been incarcerated are the ones who are to blame and should suffer because of the harsh conditions of life in prisons. They were confined to Deterrent theory of Punishment only. But as the World became more and more civilized, the man began to realize that, various human rights were not immediately apparent, and at the same time, Human Rights Activism began to develop and some activists felt that prisoners also had the right to enjoy those human rights & that can be crucial to their transformation as well. So prison reforms began to emerge and the world began to accept the fact that prisoners were like ordinary people to a great extent. This idea is reflected in the famous case of Mithu v. State of Punjab by the struck down of Sec 303 of IPC² which discriminates the prisoners from a common man in a way.

But the main thing to consider is that Whether the Prison Reforms in India have been a successful one & whether the present condition of the prisons are humane in nature.

Prison reforms have been a subject of intense debate and discussion for several decades in India but even today little appears to have changed on the grass-roots level. The Indian Judiciary has played a crucial role for the improvement of prisons but still the issues relating to prisons in the country and their reform continue to be in the paper alone.

Historical Background

In the older days, as per Douglas³ Hurd, “Prison is an expensive way of making bad people worse”.

Prisons existed in India from the ancient times. But during that time, the punishment system was not that much civilised and was intended to humiliate the guilty ones and punishments were designed accordingly. Common punishments for that time were shaving the head, riding on donkeys, a crown of shoes on their necks, and so on. However, with the advent of the British Empire, the idea of imprisonment and punishment began to develop. Lord Macaulay, the mastermind of the Indian Penal Code has also been a member of the Prison Disciplinary Committee and has served as an active facilitator after the Prison Revolution. After independence, several committees such as the Kerala Jails Committee (1953), All India Jail Manual Committee (1957), Justice Krishna Iyer Committee (1987) were established to improve the prison system. And there have been other acts approved by Parliament for the same reason. They are Transfer of Prisoner’s Act, 1950, Prisoners [Attendance in Courts] Act, 1955. But prison conditions were not human in general and in India in particular.

That’s why Bernard Kerik⁴ opined that “Going to prison is like dying with your eyes open”.

Origin of the case ‘Re- inhuman conditions in 1382 prisons’

R.C. Lahoti J, has written a letter to the Chief Justice of India regarding the disturbing conditions of 1382 Indian prisons based on an article from Dainik Bhaskar (National Edition) on March 24, 2013. RC Lahoti J pointed out in his letter about prison overcrowding; untimely death of prisoners; lack of prison staff and existing staff not adequately or appropriately trained. In his letter, he stated that the state cannot deny the responsibility on them and the State should ensure their safety and well-being.

Since the letter contains a relevant matter which is suitable for a Public Interest Litigation⁵, Supreme Court taken a case in Suo Moto⁶ and the Supreme Court registrar send notice to the concerned authorities for knowing the situation of Prisons in India.

Issues dealt in the case

There have been some issues raised by the court to the Government. Government in reply, filed an Affidavit and in that case, agreed that the funds allocated by various Financial Commissions for the development of prisons were not properly used. The Department of Home Affairs (MHA) also stated in an affidavit that it had issued a directive to all provinces and unions to implement Section 436-A of the Criminal Procedure Code to reduce prison overcrowding. It also proposed a number of options for its implementation as a constitutional review committee consisting of a district judge, a district magistrate and a police superintendent. The committee will meet every three months and review the cases of under trial prisoners and the Superintendent of Prison will re-investigate prisoners and submit a report to the Regional Legal Services Committee. They also raised various issues such as free legal aid for convicted prisoners, Plea Bargaining, Fast Track Courts, Frequent Lok Adalats etc.

Judgement

In the Judgment dated September 25, 2018, the Apex court issued some guidelines & directions to various departments of the Govt. related to the Prisons.

They are;

Under Trial Review Committee should make sure of the effective implementation of Probation of Offenders Act, 1958 & Sec 436-A of CrPC to avoid the overcrowding in the prison.
First time Offenders should be given a lenience with regard to Probation of Offenders Act, 1958 so that they will get a chance to reform by living inside the society itself.
More lawyers should be empanelled to assist the poor & diligent under trial prisoners.
Fund provided for the welfare of the prison should be properly utilised.
There should be periodical inspection by the concerned authorities in prisons.

Practicability of the Judgement

As per Prison Statistics of 2015, the changes happened because of the Court directions are;

Occupancy rate has fallen from 117.4% in 2014 to 114.4 % in 2015.
There has been marginal decrease in under trail prisoners of 0.3% in 2015 over 2014.
Under trial prisoners charged for the offence of murder amounts to 26.5% of the total numbers of crime under IPC, 1860, this number has also come down by 3.2 %⁷.

From these all, we can infer that the welcome changes have began to happen, at least in a smaller scale.

Present Status of Prisons

Merits

When we analyse the correctional mechanism existing in India, we can see that India has travelled a long way from the mode of Deterrence to Reformation. If we look at the situations in two of the famous prison systems in India, ie, Tihar jail⁸ and Andhra Pradesh Prison Department, there have been a lot of reformative programmes arranged there for the prisoners.

In Tihar jail, the programmes like Sports and Cultural activities, Yoga and Meditation, Library facility have established for them and there is even the facility to educate from the prison. In Andhra, their prisons are occupied with television, radio etc. and prisoners can do distant or correspondence degree courses & can get the course certificates through post.

And when we go through other areas in India also, we can see the explicit changes happening or happened there. Kolkata High Court recently ruled that prisoners have Right to Trade, Occupation & Profession which is enshrined under Art. 19 (1) (g)⁹ of the Constitution. Tamil Nadu Govt decided to spent Crores of Rupees for the Prison Management, mainly to digitalise the Court room. In Kerala, Legal Services Authority actively providing legal aid to the dependants of the convict. Then the Central Home department has decided to fulfill the vacancies formed in the Prisons as soon as possible.

Limitations

The above mentioned are the encouraging signs that happened to our prison system. But one cannot say that it has reformed completely. We have still many more miles to go to achieve that. Because the ground reality of prisons and under trial prisoners are still unsatisfactory. An under trial prisoner is only an accused & he is an innocent person unless proven otherwise as per our Accusatorial system. So keeping them behind the bars even for one day without a final verdict is not an encouraging act. Because in a scenario where he or she is acquitted by the court after the trial, then the days he or she has spent in prison is an Extortion by the state on that individual.

Then another issue is the Over crowding along with the deficiency of staffs in Prison administration. According to the statistics, national average of Occupancy rate in our prisons is more than 118%. That is, if a prison is able to contain 100 inmates, it actually contain 118 inmates. And the percentage of jail officials is 66% & because of that deficiency, it results in low attention per inmate & that lead to the issues inside the prison.

Then there are also issues which are intentionally made like Custodial Deaths, Fake Encounter Killings, Barbaric treatment by the police, Political pressure etc.

Suggestions

The famous Russian Novelist Fyodor Dostoevsky once said that “The best way to keep a prisoner from escaping is to make sure he never knows he’s in prison”.

That is the basic of the Prison management which a Govt should keep in mind. Main intention behind someone to be putting behind the bars is to reform him and to deter others. Living in a civilised, progressive society, the system should aim at reforming the criminals rather than being punished harshly. So for that, humane conditions should be guaranteed to the prisoners and should try to give as much support to the inmates for a rejuvenation in their life, for being a new man.

Law Commission headed by the renowned Justice H. R. Khanna, suggested that the bail provisions of CrPC should be liberally interpreted even in Non bailable offences so that over crowding can be avoided to a greater extent. And also the commission suggested for a separate detaining place for the under trial prisoners. They also added that the State shall evolve a mechanism to ensure that no under trial prisoner is detained unnecessarily which can be achieved by regular review of their cases on timely basis and also by simplifying bail procedure.
But even if there are many suggestions and directions from various authorities like Supreme Court, Law Commission exist, many of them have turned to be a dead document & the reformation exist in its name only.
There are many reasons for that. The main thing behind that is the non availability of funds for the prison development. It is included in the State list as per the Constitution so that it is the responsibility of the States to do it. If it is changed to the Concurrent list, then both Centre and State can compliment the prison development & that will reduce the burden of the states and also it will be moving forward more quickly.

Another issue that the prison system face is the attitude of the people who live outside the prison. They are more of a prejudiced kind of persons to the inmates and they always think that even if the prisoners suffer due to inhumane conditions, that is fine, they are the culprits, they should suffer. So that is reflecting even in the minds of the law makers and so that they are reluctant to allot sufficient amount of money for the prison development and also they are hesitant to spend time for their management. That has to be changed through proper awareness programmes and the prisoners should be considered as the normal citizens in the country who are entitled to lead a dignified life with the entitlement of his or her rights. The authorities while dealing with criminals must show understanding, humanity, empathy, forbearance, compassion, and mercy. If these qualities would have been shown since the courts were started, there would have been less criminals in the world.

Renowned jurist Justice V R Krishnayyer had opined that Bail is the Rule and Jail is the exception in the landmark judgment of State of Rajasthan V. Balchand alias Baliay¹⁰and that has to be taken seriously and the courts should promote granting bails rather than detaining the under trial prisoners unless there is a serious issue prevails. Thus the overcrowding can be managed.

Then the concept of Private Prisons may be tried in India wherein the State does not play a major role. Under trial prisoners who have committed petty offences may be sent to these jails under the overall supervision of district superintendent of jail. And also the mechanism of Open jails should be promoted more by the state. These prisons unlike all other prisons allows a prisoners more freedom and dignity by allowing them to roam in and around the jail vicinity, taking up employment outside jail and also have less security personnel. The concept of open prison owes its origin to United Nations Congress on Prevention of Crime and Treatment of Offenders, held in Geneva in 1955.

Conclusion

Renowned American Poet Joseph Brodsky once said that “Prison is essentially a shortage of space made up for by a surplus of time”.

So it is the duty of the Govt. to change at least the latter. It may be difficult for the Govt. to rectify the shortage of space, but the state can engage the inmates to effectively use that surplus of time & thus human resources will not be wasted and along with that, the fellow persons who happened to be a criminal because of his or her life situations will get a chance to reform and also can have an acquired skill in his or her hand when he is taken back to his older life after the expiry of his sentence period.

Our country and the age old systems prevailing here cannot be changed over night. But whenever a change in scenario happens, most probably a judicial decision will play a vital role in that. Here the case of Re- Inhuman Conditions in 1382 Prisons¹¹ can be a fuel in the Prison reformation mechanism in the country and there are already positive signs visible related to that and that has to be go on in a rapid pace.

`No one is born criminal, circumstances make them so’

Reference

Dwight David “Ike” Eisenhower was an American military officer and statesman who served as the 34th president of the United States from 1953 to 1961.
Punishment for murder by life-convict.—Whoever, being under sentence of 1[imprisonment for life], commits murder, shall be punished with death.
British Politician
Former American Consultant
Public interest litigation is the use of the law to advance human rights and equality, or raise issues of broad public concern. It helps advance the cause of minority or disadvantaged groups or individuals. Public interest cases may arise from both public and private law matters.
In law, sua sponte or suo motu describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties.
Prison Statistic India, 2014.
It is Central prison located in Tihar Village, New Delhi and is one of the largest complexes of prisons in South
Right to practice any profession or to carry on any occupation, trade or business to all citizens subject to Art. 19 (6) which enumerates the nature of restriction that can be imposed by the state upon the above right of the citizens.
1978 SCR (1) 535
AIR 2016 SC 993