The famous quote “That it is better to release 10 criminals than punishing an innocent person”, highlights the importance of the need to punish criminals for their wrongdoings and in the process not subjecting innocent persons to unfair or wrong adjudication by the court.
Punishing offenders is the primary function of all civil societies. The need to punish criminals in society is a vital step in regulating the law and ensuring people's faith in the judicial system. If wrong done by persons go unpunished people will feel themselves to be entitled to do whatever they want. For this purpose, as a way of punishing criminals prisons have been a part of our legal system for ages. Prisons were established with the objective of creating deterrence in the minds of potential offenders and with the view that isolating them from rest of the society and taking away their rights would lead to a positive change in them and will transform them into honest and law-abiding citizens by inculcating in them a distaste for crime and criminality.
Various acts, reforms, measures have been adopted time and again to ensure proper prison administration in India.
MEANING OF PRISONS
The Oxford English dictionary defines "Prison is a place, properly arranged and equipped for the reception of persons who by legal process, are committed to it for safe custody while in trial or for punishment”.
HISTORY OF PRISONS IN INDIA
Since time immemorial there existed a well organized system of prisons in India. In ancient India, the main purpose of prison administration was the detention of offenders and to create deterrence in the minds of others. Brahaspati laid great stress on the imprisonment of convicts in closed prisons. Whereas, Manu was against this system and was of the view that prisons should be built on public roads so that everybody could see the suffering of the criminals and would thus create deterrence in the minds of potential offenders and onlookers.
During the Mughals period, there existed a cruel and barbarous legal system wherein recognized modes of punishment were stoning to death, shaving off the offender’s head, whipping, flogging, branding, Mutilation or even starving to death. The prisoners were ill-treated, tormented and subjected to most inhuman treatment by the strict prison authorities who were expected to keep the criminals in discipline by whichever means they deem fit. Thus during the Mughals conditions of prisons was in a pitiful state deprived of even their basic rights.
With the advent of the British era, the administrative structure of prisons in India began to assume a new form. Conditions of prisoners were awful and were treated like animals without a second thought to their merciless condition. Prisoners were treated with hostility subject to strict supervision to the jail authorities. There was no uniform civil code defining the offences and their prescribed punishments. Punishments were given with the aim of creating fear and terror in the minds of community members. Constant efforts were made by the British authorities to improve the condition of Indian prisons and prisoners. It was only after 1858, a uniform system of legal justice was initiated in India. In 1860, the Indian Penal Code was enacted which defined each and every offence and prescribed punishment for the same. Imprisonment was the most commonly used instrument for penal treatment.
The second Jail Enquiry Committee in 1862 reported and expressed concern for the unsanitary conditions prevailing at Indian prisons and the dim conditions in which prisoners live there which resulted into death of several prisoners due to illness and disease. It highlighted the need for suitable food and clothing for the prison inmates and medical treatment of ailing prisoners.
In 1894, the Prisoners Act was enacted to bring uniformity in the working of the prisons in India which laid down the seed for the development of proper administration of prisons and prisoners in India.
‘Prisons’ is a State subject embodied under State List of the Seventh Schedule of the Constitution of India. The State government is exclusively responsible for the management and administration of Prisons in India and has in this behalf enacted various prison manuals for their respective states. Prisons Act, 1894 is the oldest and the principal legislation governing working of prisons in India.
The Prisons Act, 1894
The Prisons Act 1894 is one of the oldest and primary piece of legislation in India dealing with laws enacted in relation to prisons in India. This Act was enacted on 22nd March, 1894 and enforced on 1st July, 1894 containing 62 sections and XII Chapters which contain law relating to the smooth functioning of prisons.
The Act provides for classification of prisoners as “criminal “, “civil” and “convicted” prisoners.
The Prison Act 1894 deals more with the smooth functioning of prison rather than reformation and rehabilitation of prisoners, defining the duties of officers of the prison and how the prisons are to be maintained.
The Juvenile Justice Act, 1986
To ensure protection to young offenders and aiming to reduce the number of crimes by juveniles, the Juvenile Justice (Care and Protection of Children) Act, was enacted in 2000. This Act laid down a uniform framework for juvenile justice in the country, with the aim of avoiding an increasing number of crimes by juveniles and to ensure their protection, treatment, and rehabilitation in prisons. For this purpose, the juvenile welfare board and the juvenile court are established. In this Act, provision has been made for the setting up of observation homes, juvenile home, and special homes.
STEPS TAKEN TO REFORM PRISONS IN INDIA
Justice Mulla Committee
All India Committee on Jail Reforms 1980-83 was constituted by the government of India under the chairmanship of Justice Anand Narain Mulla. The committee in order to bring about organization and modernization in Indian prison system suggested constitution of a National Prison Commission. The main objective of the Committee was the protection and rehabilitation of prisoners by review of the laws, rules and regulations. This committee had given a number of recommendations among which the notable recommendations are:
To include ‘Prisons’ in the concurrent list to ensure participation by Central government in the framing of laws relating to prisons.
The government should come up with a National Policy on Prisons.
In every state and UT, a Department of Prisons and Correctional Services should be set up.
An All India Service namely the Indian Prisons and Correctional Service to be constituted under the Act to ensure qualified and trained prison officials.
The Government should promote research in the field of criminology and penology and conduct detail study in the context of emerging patterns of crime in the country. This will help in proper classification of offenders
To incorporate the “principles of management of prisons & prisoners” in the DPSP.
Under the trial, prisoners should not languish in the jail and there should be a procedure for speedy trial and simplified bail process
Just, humane living conditions to be provided to prisoners and ensure basic sanitary, food facilities.
Offenders should be provided with adequate opportunities for diversified education, development of work habits and skills, change in attitude, modification of behaviour and implantation of social and moral values.
The State shall pledge to ensure free legal aid to all needy prisoners.
Separate institutions for juvenile offenders to ensure their well being, protection and rehabilitation and not to be confined in prisons with adult offenders.
Segregation of prison space for violent and non-violent offenders.
The Government should encourage voluntary participation of the community in prison programmes and should authorise selected eminent public-men to visit prisons and give an independent report on them to appropriate authorities.
Justice V. R. Krishna Iyer Committee on Women Prisoners
The committee under the chairmanship of Justice V. R. Krishna Iyer submitted its report on women prisoners in the year 1987. The major recommendations of the report are as follows:
There should be necessary provisions to restore the dignity of women even if convicted under the criminal code. The Government should make use of all possible material, moral and spiritual resources for the purpose.
Separate institutions for women offenders to ensure them protection against exploitation by co inmates. And the staff for these institutions should comprise of women employees only.
The committee emphasized on the need for security, discipline, holistic programmes, adequate standards of prisons, and human rights, etc., because all these play a significant role in preventing women offenders from psychosis and neurotic disorders.
Free legal aid to be provided to indigent women prisoners.
Committee under BPR&D
In 2005, the Government of India constituted a high powered committee under the chairmanship of Director General, Bureau of Police Research and Development (BPR&D). This committee used the reports of Justice Mulla Committee Report & Justice Krishna Iyer Committee and made several additional and new recommendations. It also drafted a National Policy on Prison Reforms and Correctional Administration, 2007.
This committee came up with some novel recommendations such as a provision to provide for aftercare and rehabilitation, appointing officers for legal aid to prisoners etc. However, the report had some lacunas and made various arbitrary, impractical recommendations.
Draft National Policy on Prison Reforms and Correctional Administration
The Draft National Policy on Prison Reforms and Correctional Administration which is still in its development stage has taken inputs from the earlier reports on prison reforms. Some key aspects of the policy are as follows:
Amending the constitution to include principles of prison management and treatment of undertrials under DPSP and including prisons in the concurrent list.
Enactment of uniform and comprehensive law on matters related to prisons.
A department of Prisons and Correctional Services to be opened in each state and UT.
The state will evolve a proper mechanism to address issues of undertrials.
The state shall improve the living conditions in every prison and allied institution.
The state shall endeavour to develop the field of criminology and penology.
Under the National Prison Policy, the government plans to include nearly 200 new prisons buildings in the country.
Current Government Policy
The Central government recently announced a package of Rs. 4000 for implementing prisons reforms in the country. State governments are being encouraged to sell off prisons situated in “prime areas” to generate funds to create modern buildings with facilities such as cushioned beds, clean toilets, closed-circuit TV cameras, video-conferencing facilities, and space for yoga, sports and extra-curricular activities.
PROBLEMS FACED BY PRISONS IN INDIA
Poor Facilities of Health And Sanitation
Unsanitary conditions prevailing in Indian prisons pose serious health implications on a prisoner’s life. There are a large no. of prisoners suffering from serious health diseases like dengue, malaria, tuberculosis, typhoid, etc. No proper medical facilities are provided in jails and prisoners live in a very dismal situation.
According to the Prison Statistics India 2015 report by the National Crime Records Bureau (NCRB), India’s prisons are overcrowded with an occupancy ratio of 14.4% more than the capacity. More than two-thirds of the inmates are undertrials i.e., to the account of 67% of the total prison population. Dadar & Nagar Haveli, Chhattisgarh and Delhi are among the top three in the list with an occupancy ratio of more than double the capacity. The prisons are overcrowded by 77.9% in Meghalaya, by 68.8% in Uttar Pradesh and by 39.8% in Madhya Pradesh. In absolute numbers, UP had the highest number of undertrials (62,669), followed by Bihar (23,424) and Maharashtra (21,667). In Bihar, 82% of prisoners were undertrials, the highest among states.1
Above statistics show the miserable conditions in which prisoners are left in Indian jails. Due to such overcrowding and lack of infrastructure facilities, there is no separation of offenders for serious offences and minor offences. As a result, minor offence convicts sometimes come under the influence of hardened criminals and commit offences in prisons. An emphasis on the need for security, discipline, holistic programmes, adequate standards of prisons, human rights, quick disposal of cases and creation of more prisons, etc can help in unburdening of prisons.
Sexual Exploitation of Women Prisoners
Prisons are not at all safe for women prisoners. There is a high rate of crimes against women in jails. They are sexually assaulted, exploited, subjected to indecent gestures and names and also raped in many cases. To ensure the protection of women prisoners against exploitation by co-inmates, separate institutions for women offenders to be established and the staff for these institutions should comprise of women employees only.
The number of undertrials prisoners in India is higher than convicted prisoners. Sometimes, undertrial prisoners have been in jail for a period longer than the maximum terms for which they would have been sentenced, which is a clear violation of their fundamental right to personal liberty under Article 21 of the Constitution. Although pre-trial detainees should be presumed innocent until found guilty by a court of law, and treated as such, conditions in pre-trial detention are often much worse than those of prisons for convicted prisoners
Poor Implementation of Existing Prison Rues And Lack of Inspection
Lack of inspection by prison authorities turns prisons into frightening wrecks with miserable living conditions. Lack of disciple has also led to an increase in violence in prisons and ultimately claiming innocent lives. Statistics have also shown a rampant increase in the number of suicides by inmates in Indian prisons.
PRESENT SCENARIO AND NEED FOR PRISON REFORMS IN INDIA
Even though the condition of the modern prison system is far better than the ancient prison systems, yet the idea of a well organized and administered prisons system in India is far in sight.
Current statistics highlights the miserable conditions of prisons in India, which are in urgent need for reformation, restoration and better administration.
The present legislation governing working of prisons in India, enacted during the time of British rule, the Prisons Act, 1894 is a 123 year old piece of legislation, which has become totally obsolete and redundant in today’s socially conscious society.
A nation can develop and a change is possible in any of its systems only when there is a change in the mindset of the society. There is dire need to bring about a change in the public attitude towards the prison institutions and their management. This change can be inculcated through various mediums of media and communication and awareness regarding the issues involved. For example, whenever a convict releases from jail serving his sentence, the society doesn’t accept such person and views him with the same eyes as before, stripping him of all his dignity and respect.
Reformation of criminals can be possible only with the support from the society. It is need of the hour for the enactment of a well equipped and responsible Prison Act which aims for reformation of criminals rather than focusing solely on working of prisons.
Indian judiciary has always played an upfront role in realizing and recognizing the problems faced by prisoners in India as well as their rights like the right to live in humane conditions, right to free legal aid to indigent prisoners, etc.
Landmark judgements passed by the Hon’ble Supreme Court on this subject are:
In Kishore Singh v. State of Rajasthan2, the Supreme Court has held that, the third degree method being used by the police in custody and prison is violation of Article 21 of Constitution.
In Ramamurthy v. State of Karnataka3, The Supreme Court identified nine major problems afflicted upon the prison system, namely, overcrowding, delay in trial, torture and ill-treatment, neglect of health and hygiene, insubstantial food and inadequate clothing, prison vices, deficiency in communication, streamlining of jail visits and management of open-air prisons. Among this, an unhealthy living premise inside the jail was identified by the Court as a severe problem. The court herein also accepted the state’s responsibility in providing adequate amenities to the prisoners in advancement of their living conditions inside the prison.
In Hussainara Khatoon v. State of Bihar4,
The Apex Court held that the right to free legal services as an essential requisite in the guarantee of rights under Article 21 of the Constitution which provides for the right to life and personal liberty and to ensure reasonable, fair and just procedure to a person accused of an offence. This was a case wherein it was observed by Mr. Justice P.N. Bhagwati and Justice D.A. Desai that many under-trial prisoners in different jails in the state of Bihar had been in jail for period longer than the maximum terms for which they would have been sentenced, if convicted, and that their prolonged detention in jails was totally unjustified and in violation of their fundamental right to personal liberty under Article 21 of the Constitution.
Further, the Hon’ble Supreme Court two judges bench of Justices Madan Lokur and Dipak Gupta on 15th September, 2017 issued a set of landmark directions on prison reforms. The court took into account the data available on unnatural deaths and suicides in prisons and the need for an overhaul and urgent looking into the matter.
The bench remarked, “What is practiced in our prisons is the theory of retribution and deterrence and the ground situation emphasizes this, while our criminal justice system believes in reformation and rehabilitation and that is why handcuffing and solitary confinement are prohibited. It is this ‘rejection’ of the philosophy of our criminal justice system that leads to violence in prisons and eventually unnatural deaths,”
Also, in February, this year, the Supreme Court three judge bench directed NALSA to furnish reports to it looking into and analyzing the problem of rampant overcrowding of prisons. Bench noted the dismal conditions of prisons in India on the basis of a report revealing more than 150 % occupancy in jails as on 31st December, 2017. The Supreme Court bench decided to deal with the issues related to standard operating procedure for Under Trial Review Committees (UTRC) and developments in the working of open prisons in its next hearing listed for March 27.