Priyadarshi Nagda.pdf

"A SOCIO- LEGAL STUDY OF PRISON SYSTEM AND ITS REFORMS IN INDIA" A THESIS Submitted for the Award of Ph. D. degree of

MOHANLAL SUKHADIA UNIVERSITY In the

Faculty of Law By

PRIYADARSHI NAGDA

Under the supervision of

Dr. R. L. JAT (Former Associate Professor)

DEPARTMENT OF LAW FACULTY OF LAW MOHANLAL SUKHADIA UNIVERSITY, UDAIPUR

2016

CERTIFICATE I feel great pleasure in certifying that the thesis entitled “A SOCIO- LEGAL STUDY OF PRISON SYSTEM AND ITS REFORMS IN INDIA” under my guidance. He has completed the following requirements as per PhD regulations of the University. (a)

Course work as per the university rules.

(b)

Residential requirements of the university

(c)

Regularly submitted six monthly progress report

(d)

Presented his work in the departmental committee

(e)

Published/accepted minimum of one research paper in a referred research journal.

I recommend the submission of thesis.

Date:

Dr. R. L. JAT Supervisor

ACKNOWLEDGEMNET This work has been carried out under the Guidance of Dr. R.L. Jat (Former Minister, Govt. of Rajasthan) and Guidance of Prof. Anand Paliwal (Professor, University College of Law, MLSU, Udaipur). I do not find words to express my gratitude to him for his continuous and keen interest in the work without which it would not have been possible to bring it to the stage of successful conclusion. I am indebted to him for his enviable encouragement, untiring efforts, inspiring guidance and affectionate behavior during the present course of investigations. The thesis on “A Socio- Legal Study Of Prison System And Its Reforms In India” is my maiden research venture and my endeavor can’t be accomplished without the expression of my grateful respect and gratitude towards all the people who have blessed my effort with their incessant care, support, advice, expertise and inspiration at this crucial juncture of my career and without whom my individual efforts would have easily gone astray. I express my sincere gratitude to all those who have helped me in writing of the present thesis & I convey my heartfelt thanks to all of them. My Sincere gratitude to my esteemed Dr. R.L. Bhatt, Ex-Dean, & Associate professor, University College of Law, MLSU, Udaipur for their Invaluable guidance & supervision during the course of this work, without their profound supervision & kindness, this work could not have been completed in its present form. I am thankful to Dr. Rajshree Choudhary Assistant Professor, Dr. Shilpa Seth Assistant Professor, MLSU, Udaipur, for their support and guidance.

i

I am also thankful to the following persons for their support & encouragement in completing the present work. I express my sincere thanks to, Dr. Pankaj Bhatt, Dr. Vijay Dungarwal, Dr. Koshal Soni., Dr Deepti Sharma, Dr. K.P. Singh Chouhan, Dr. Bhavik Paneri and heartily thankful to Assistant Registrar Mr. Mukesh Barber, MLSU, Udaipur. My heartiest thanks to the staff of University College of law for their continuous support during the entire research. I am thankful to staff of library of University College of Law, for providing me necessary facilities for conducting this work. I have no words to express my sincere gratitude towards my respected Father Shri S. L. Nagda and My Mother Smt. Rajni Nagda, My wife Ruchi and my loving daughter Miraya for blessing and My brother R. K. Singh Bhati, Mr. Jayant Nagda, for inspiring me for the work. They have been constant inspiration throughout the work. My friends also deserve special thanks, for their moral support which encouraged me to complete my work. Names, which deserve special mention, are Mithilesh Guatam, Shri Manish Datt Sharma, Bhupendra Kumawat, Divyaraj Singh Jhala and Dr. K. K. Trivedi, Bhavesh Soni, Aditya Rathore and Sanjay Choudhary. I also thank all those authors, Researchers, officers, Publishers, Respondents, information officers, Non-Government Organization whose invaluably help made me to complete my work.

Date : Place : Udaipur

PRIYADARSHI NAGDA

ii

LIST OF ABBREVIATIONS &

And

ADR

Alternate Dispute Resolution

AIR

All India Reporter

Amd.

Amendment

Art.

Article

Bom.

Bombay

CAD

Constitute Assembly Debate

CJ

Chief Justice

Co.

Cooperation

CPC

Civil Procedure Code

Cr.PC

Criminal Procedure Code

DB

Division Bench

Dec.

December

e.g.

Example

Edn.

Edition

Govt.

Government

HC.

High Court

Jan.

January

Mad.

Madras

No.

Number

xiv

O.

Order

Ori.

Orissa

P.

Page

PC

Privy Council

PM

Prime Minister

Prof.

Professor

R.

Rule

Raj.

Rajasthan

S.

Section

SC

Supreme Court

SCC

Supreme Court Case

SCR

Supreme Court Reporter

U.O.I.

Union of India

U.S.

United State

USA

United States of America

V.

Verses

Vol.

Volume

W.B.

West Bengal

xv

CONTENTS Acknowledgement Contents Abbreviations

i-ii iii-xiii xiv-xv Page No.

Chapter – 1 INTRODUCTION PRISON SYSTEM IN INDIA AND ITS REFORMS

1-58

1.1 1.2

Prison System in India – An Overview Meaning of Prison

1 4

1.3

Classification of Prisoners

6

1.4 1.5

1.6

1.7 1.8

1.3.1 Pre-trial Prisoners 1.3.2 Under-trial prisoners

7 7

1.3.3 Convicted Prisoners

7

1.3.4 Detenues (Detenues under the preventive detention)

8

Objectives of Prison Theories of Punishment

8 11

1.5.1 Deterrent Theory

12

1.5.2 Preventive Theory

14

1.5.3 Retributive Theory

15

1.5.4 Reformative Theory 1.5.5 Expiatory Theory 1.5.6 Utilitarian Theory

16 18 18

Kinds pf Punishment

19

1.6.1 Corporal Punishment

19

1.6.2 Fine

21

1.6.3 Forfeiture and confiscation of property 1.6.4 Banishment

22 22

1.6.5 Imprisonment

22

1.6.6 Solitary Confinement 1.6.7 Capital Punishment

24 25

International Obligations and Guidelines Major Problems of Prisons Relevant to India

27 28

1.8.1 More crowding

28

1.8.2 Corruption and extortion

29

1.8.3 Unsatisfactory living conditions

30

1.8.4 Staff shortage and poor training

30

iii

1.8.5 Inequalities and distinctions

31

1.8.6 Inadequate prison programmes

31

1.8.7 Poor spending on health care and welfare

31

1.8.8 Lack of legal aid

32

1.8.9 Abuse of prisoners 1.8.10 Problems of women prisoners in India-custodial rape( through a case study)

34 34

Consequence of Prison Structure and Function

36

1.9

1.9.1 Health Problems in prisons

36

1.10 1.11

Prisons Act 1894 The Model Prison Manual

37 40

1.12 1.13 1.14 1.15

Prison System and its Social Community Trends and Present Scenario of Prisons As Social Reforms in Prison System: A Futuristic Viewpoint

40 46 50 57

Prisons in India – A Brief Summary Chapter – 2 HISTORICAL BACKGROUND

59-86

2.1

Introduction

59

2.2 2.3

History of Prison System Evolution of Prison System in India

59 65

2.3.1 Ancient Indian Prison System

66

2.3.1.1 Concept of Dharma and Danda

2.4 2.5

70

2.3.3 Modern India 2.3.3.1 Prison System in British Era

73 73

2.3.4 Prison System Post Independence

78

The Mulla Committee

85 86

The Krishna Iyer Committee Chapter – 3 NATIONAL AND INTERNATIONAL PROVISIONS REGARDING PRISON SYSTEM AND INMATES

3.1 3.2

66

2.3.2 Mediaeval India

General National Scenerio

87-152

87 87

3.3.1 Constitutional Safeguards- Prisoners Rights 3.2.1.1 Right to Equality: Article 14

87 88

3.2.1.2 Limitation On Right To Freedom: Article 19

88

3.2.1.3 Protection Against Conviction of Offences: Article 20(1)

89

iv

3.2.1.4 Protection Against Double Jeopardy: Article 20(2)

89

3.2.1.5 Prohibition Against Self Incrimination: Article 20(3)

89

3.2.1.6 Scope of Right to Life and Personal Liberty : Article 21

90

3.2.1.7 Scope of Right to Education for Prisnors

91

3.2.1.8 Rights of Person Under Arrest and Detention: Article 22(1) 3.2.1.9 Right to be Produced before Magistarte: Article 22(2)

92

3.2.1.10 Right to Constitutional Remedies: Article 32

93

3.2.1.11 Writ of Habeas Corpus : Preventive as Well as Remedial 3.2.1.12 Article 39-A : Equal Justice and Free Legal Aid

94 95

3.2.1.13 Seventh Schedule and Article 246

95

3.2.2 Other National Statutory Provisions Relating to Prison System:

93

96

3.2.2.1 The Prisons Act, 1894

96

3.2.2.2 The Prisons Act, 1900

98

3.2.2.3 The Identification of Prisoners Act, 1920

98

3.2.2.4 The Government of India Act 1935 3.2.2.5 The Transfer of Prisoners Act, 1950

99 99

3.2.2.6 Prisoners [Attendance in Courts] Act [1955]

100

3.2.2.7 The Probation of Offenders Act, 1958

100

3.2.2.8 Model Prison Manual, 1960 3.2.2.9 The Repatriation of Prisoners Act, 2003

101 102

3.2.2.10 Model Prison Manual for the Superintendence and Management of Prisons in India 2003

103

3.2.2.11 Approval of New Prison Manual 2016 by Union Home Minister

111

3.2.2.12 Juvenile Justice (Care and Protection of Children) Act, 2000 3.2.2.13 Law Commissions of India on Prison Reforms

112

3.2.3

Prison Climate In Jail

115

3.2.4

Socialism in Indian Prison

118

3.2.5

Socialism with Women Prisoners in Prison

119

3.2.6

Women and Prison

121

International Provisions

122

3.3.1

Universal Declaration of Human Rights, 1948

122

3.3.2

The Third Geneva Convention 1949

124

3.3.3

127

3.3.4 3.3.5

Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The International Covenant on Civil and Political Rights 1976 Standard Minimum Rules for the Treatment of Prisoners

3.3.6

Body of Principles for the Protection of All Persons under Any

134

3.3

v

114

128 131

Form of Detention or Imprisonment, 3.3.7

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

138

140

3.3.10

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Basic Principles for the Treatment of Prisoners

3.3.11

European Convention on Human Rights signed on 4 November

142

3.3.8 3.3.9

139

141

1950 Effective :3 September 1953 3.3.12

United Nations Rules for the Protection of Juveniles Deprived of their Liberty

143

3.3.13

United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) Resolution 2010/16 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules)

145

Worldwide Views of The Social Climate in The Prison

148

3.3.14

3.4

Chapter – 4 PRISON SYSTEM – A COMPARATIVE STUDY 4.1 4.2 4.3 4.4

4.5

4.6

Introduction Prison System In British Age Important Covenants Related To Prisoners Prison Discipline In India

153-242 153 154 157 159

4.4.1 Prison offences

160

4.4.2 Punishments for prison offences

162

Prisoners Issues In India

163

4.5.1 Human rights of prisoners in India

165

4.5.2 Rights of Women Prisoners in india

168

Human Rights Issues

170

4.6.1 Prison scenario: mentally ill prisoners

4.7

146

Management of The Prison System In India

172

174

4.7.1 Organizational structure of prison system in India

174

4.7.2 Growth of the Modern Prison System 4.7.3 Prison Architecture

176 176

4.7.4 Armed Sentry 4.7.5 Guarding Establishment

177 178

4.7.6 History Tickets of the prisoners

178

4.7.7 Security & Custodial Management

179

vi

4.7.8 Maintenance of the Prisoners

180

4.7.8.1 Food ration

181

4.7.8.2 Scales of diet

181

4.7.8.3 Hospital diet

182

4.7.8.4 Cleaning, Storage and Issue of Food Items 4.7.8.5 Distribution and service of food

182 184

4.7.9 Clothing

185

4.7.10 Cleanliness and Hygiene

185

4.7.11 Medical Facility In Prison 4.7.12 Wages To Prisoners

185 186

4.7.13 Inmates Management

187

4.8

4.7.13.1 Staff Management 4.7.13.2 Training of prison staff

188 188

Movement Towards Reformative Approach

189

4.8.1 Probation Laws

190

4.8.2 Object of Probation Laws

190

4.8.3 Principles and Practices for Probation Laws 4.8.4 Criticism against the Concept of Probation 4.8.5 Suggestions for Effective Probation Laws

191 192 196

4.9 4.10

Technique for The Prisoners and Prison Staff In India A Worldwide Comparison of The Prison System

4.10.1 United States of America

198 200 200

4.10.1.1 Constitutional Rights of Prisoners

200

4.10.1.2 Other Rights of Prisoner

201

4.10.1.3 Courts and Prisons

201

4.10.1.4 Standards of Review for Prison Decisions

201

4.10.2 United Kingdom 4.10.2.1 Arrival at prison

203 204

4.10.2.2 Security categories

204

4.10.2.3 Privileges

204

4.10.2.4 Punishments

205

4.10.2.5 Rights

205

4.10.2.6 Healthcare in prison

205

4.10.2.7 Special help and support 4.10.2.8 Refusing medical treatment

205 206

4.10.2.9 Vulnerable prisoners 4.10.2.10 Psychiatric hospitals

206 206

4.10.2.11 Pregnancy and childcare in prison

206

4.10.2.12 Prisons with mother and baby units

207

4.10.3 Prison Conditions in France

207

vii

4.10.3.1 Principles in France for Reforms 4.10.4 South African Prison System

211

4.10.4.1 Prison situation in past

211

4.10.4.2 Prisons reforms in new South Africa

212

4.10.5 Prison System of Nigeria 4.10.6 Prison System of Russia

214 215

4.10.6.1 Principles related to reforms in Russia

219

4.10.8 Prison System in Afghanistan 4.10.8.1 Present prison condition in Afghanistan

222 223

4.10.8.2 Key issues

223

Major Global Prison Problems: A Comparative Study

226

4.11.1 Prison Overcrowding

226

4.11.2 Mistreatment of Prisoners

230

4.11.3 Inadequate Legal Process

232

4.11.4 Limited access to counsel

233

4.12

Initiatives for Reforms Taken by Some Agencies

234

4.12.1 INL (Bureau of International Narcotics and Law Enforcement Affairs)

234

4.12.2 United States Agency for International Development (USAID)

236

4.12.3 The Federal Bureau of Prisons (FBOP) 4.12.4 The United Nations Office on Drugs and Crime (UNODC)

237 238

4.12.5 The International Committee of the Red Cross (ICRC)

239

4.13

5.2

216

4.10.7 Prison Reforms in China

4.11

5.1

209

Steps by Foreign Governments towards Prison Reforms

240

Chapter – 5 JUDICIAL APPROACH TOWARDS PRISON SYSTEM

243-320

Introduction

243

5.1.1 Concept of Human Rights and prison

245

5.1.2 Human Rights In Indian Context 5.1.3 Judicial Activism on Prison Reforms

246 249

5.1.4 Role Played By Judiciary for Prisoners Protection

250

Prisoners Rights: Emerging Judicial Trends

251

5.2.1 Presumption of Innocence

251

5.2.2 Rights of an Arrested Person

252

5.2.3 Grounds of arrest, to be informed:

252

5.2.4 Access to Counsel: 5.2.5 Protection against arbitrary arrest

253 254

5.2.6 Right to know the grounds of arrest

255

viii

5.2.7 Right to have Interview with Friends, Relatives and Lawyers

259

5.2.8 Right to engage Lawyer

259

5.2.9 Right to Legal Assistance

261

5.2.10 Right to be produced before the Magistrate

264

5.2.11 Right to be released, if not produced before the Magistrate

265

5.2.12 Right of Communication to detenue

266

5.2.13 Right to Speedy Trial

267

5.2.14 Prohibition of applying ex post facto law

269

5.2.15 Protection against double jeopardy

270

5.2.16 Protection against self incrimination

272

5.2.17 Right to life and personal liberty

273

5.2.17.1 Scope of right to life and personal liberty extended by apex court

5.3

274

5.2.18 Right against police torture

277

5.2.19 Rights against Hand Cuffing

278

5.2.20 Rights against Inhuman Treatment

278

5.2.21 Rights against Solitary Confinement and Bar Fetters

279

5.2.22 Right against delayed execution.

280

5.2.23 Invasion on right to privacy

280

5.2.24 Right to fair and open trial

281

5.2.25 Right in case of acquittal

281

5.2.26 Right to Speedy Justice

282

5.2.27 Fundamental rights of a prisoner

283

5.2.28 Protection to prisoners under preventive Detention

284

5.2.29 Right to Reasonable Wages in Prison

286

5.2.30 Natural justice for prisoners

286

5.2.31 Right to get bail

287

5.2.32 Right to Compensation:

289

5.2.33 Right to be represented in Court:

290

5.2.34 Arrested person not subject to unnecessary restraint:

290

5.2.35 Prisoner’s Right to education

291

5.2.36 Right to dignity for women prisoners

291

5.2.37 Remedy for protection of right of prisoners

292

Concept of Judicial Review

293

5.3.1 Objections to the doctrine of ‘judicial review’

297

5.4

Scope of Rights and Expansion by Court

300

5.5

Public Interest Litigation In India

305

ix

5.6

Public Interest Litigation and Monetary Compensation

308

5.7

Judiciary Playing Key Role For Prison System

310

5.7.1 Constitutional remedies towards Human Rights of prisoners

Chapter – 6 REFORMATIVE APPROACH TOWARDS PRISON SYSTEM 6.1 6.2 6.3

Introduction Legislative and Constitutional Steps Techniques of Prison Reforms

321-374

321 325 332

6.3.1 Probation

332

6.3.2 Parole

336

6.3.2.1 Parole system dealt under the Delhi Parole/Furlough Guidelines, 2010 6.3.3 Furlough

338

6.3.4 Suspension Commutation and Remission

344

6.3.5 Pardon

346

6.3.6 Open Prisons

349

6.3.7 Self Governance by Inmates

354

6.3.8 Work Release

355

6.3.9 Vipassana 6.3.10 After Care Programmes

6.4 6.5 6.6

311

341

356 357

Attitude of Public towards Prisoners Reformative Approch Towards Female Prisoners General Issues Related To Prison Reforms

358 358 359

6.6.1 (A) Mulaqat system

360

6.6.1 (B) Celebration of festivals and other ceremonies

361

6.6.1 (C ) Communication by post or mail

361

6.6.1 (D) Education and skill training 6.6.1 (E) Spiritual trainings

362 363

6.7 6.8

Prison Culture Role Played by Human Rights Commission in Prison Reforms

364 367

6.9

National Commission for Women

369

6.10

National Commission for Schedule Caste and National Commission for Schedule Tribes National Commission for Minorities

372

Chapter – 7 RESEARCH METHODOLOGY

375-428

6.11

x

373

7.1 7.2

Introduction Tools and Techniques

375 376

7.3 7.4

Data Collection Methods Interview Results

376 377

7.4.1 Summary of Interview with Prisoners

377

7.4.2 Summary of Interviews of Relatives of Prisoners:

378

7.4.3 Summary of Intervibews of Prison Staffs

379

7.4.4 Summary of Interviews with advocates

380

7.5

7.6

7.7 7.8

Prison Statistics In India 2012 (Data Taken From NCRB)

380

7.5.1 Detention Period (NCRB DATA)

382

7.5.2 Inmates Particulars (data from NCRB)

384

7.5.3 Deaths in Jail(NCRB DATA)

385

7.5.4 Number of convicts and under trial prisoners in different age groups

385

7.5.5 Rate of Change of Convicts

389

7.5.6 Training

389

7.5.7 Rate of Change of Under Trial Prisoners(NCRB data)

391

7.5.8 Prison administration and Earning by prison inmates(NCRB)

391

7.5.9 Inmate population and strength of jail officials

392

Prison Condition of Tihar Jail (2014)

395

7.6.1 Expansion

396

7.6.2 Special Courts

397

7.6.3 Semi Open Jail

397

7.6.4 Free Legal Aid facility

398

7.6.5 Educational Facilities

399

7.6.6 Campus Placements at Tihar

401

7.6.7 Recreational Facilities

401

7.6.8 Medical Facilities

402

Prison Conditions In State Of Gujrat

403

7.7.1 New Initiative related to Prison systems of Gujarat

407

Prison System and Reformative Techniques in State of Rajasthan

413

7.8.1 Human Right at Prison in Rajasthan

413

7.8.2 Weaving Section

416

7.8.2 Carpentry Section

416

7.8.3 Sports and Recreational Facilities

416

7.8.4 Yoga and Meditation

417

7.8.5 Prisoners Welfare Programme

417

xi

7.8.6 Parole

418

7.8.7 Premature release of prisoners

418

7.8.8 Periodical Review of cases of under Trial Prisoners

419

7.8.9 System of meeting

419

7.8.10 Visitors to Prison

420

7.8.11 Ventilation of grievances

420

7.8.12 Prisoners’ Welfare Fund

420

7.8.13 Prison Band

421

7.8.14 Treatment of Women Prisoners

421

7.9

A Report On Best Prison Practices India Report On The National Consultation On Prison Reform - Human Rights

422

7.10

Improving the prisoners and prison system i.e. Reformations

425

7.11

Reformation and Rehabilitations

426

7.12

Societal Participation in Reformation

427

Chapter – 8 CONCLUSION AND SUGGESTION

429-454

8.1

Introduction

429

8.2

Review of Entire Study

429

8.3

Prison Reforms : The Conclusions

433

8.4

Observations Noticed By Researcher During Visits To Prisons

437

8.5

General View of Researcher

438

8.6

Suggestions

439

8.7

Suggestions In Nut Shell

448

8.7.1 Incorporation of prisoners right as new fundamental right in part III of constitution

449

8.7.2 New provisions especially for woman and juvenile offenders to

449

be added In prison Act 8.7.3 New provision for holding lok adalats for petty offences

449

8.7.4 Inclusion of “prison”as a subject in the concurrent list

449

8.7.5 Constituting task committee for review

450

8.7.6 Prison reforms should be made priority in five year plans

450

8.7.7 Pay allowance and other facility of prison officer should be

450

increased 8.7.8 Induction and refresher training for prison staff

451

8.7.9 Regular cadre of teachers for different subjects be made

451

xii

8.7.10 Code of conduct for prisoners

451

8.7.11 Need of prison commission

451

8.7.12 Educated prisoners be registered with employment offices of state

452

8.7.13 Prison reforms should be added as Directive principle

452

8.7.14 Amendment in penal provisions

452

8.7.15 Prison policy for old ages prisoners

452

8.7.16 Need to check media trial of arrested person

452

8.7.17 Role of NGOs and Human Rights Activists, law students,

453

teachers 8.7.18 Suggestions for relatives and family members of victims and accused

453

8.7.19 Suggestions for the society

454

BIBLIOGRAPHY QUESTIONNAIRE PUBLICATIONS

xiii

455-481

LIST OF ABBREVIATIONS &

And

ADR

Alternate Dispute Resolution

AIR

All India Reporter

Amd.

Amendment

Art.

Article

Bom.

Bombay

CAD

Constitute Assembly Debate

CJ

Chief Justice

Co.

Cooperation

CPC

Civil Procedure Code

Cr.PC

Criminal Procedure Code

DB

Division Bench

Dec.

December

e.g.

Example

Edn.

Edition

Govt.

Government

HC.

High Court

Jan.

January

Mad.

Madras

No.

Number

xiv

O.

Order

Ori.

Orissa

P.

Page

PC

Privy Council

PM

Prime Minister

Prof.

Professor

R.

Rule

Raj.

Rajasthan

S.

Section

SC

Supreme Court

SCC

Supreme Court Case

SCR

Supreme Court Reporter

U.O.I.

Union of India

U.S.

United State

USA

United States of America

V.

Verses

Vol.

Volume

W.B.

West Bengal

xv

Chapter - 1 INTRODUCTION PRISON SYSTEM IN INDIA AND ITS REFORMS

CHAPTER -1

INTRODUCTION PRISON SYSTEM IN INDIA AND ITS REFORMS “Overall, we need bold change In our criminal justice system. A good first step forward is To start treating prisoners as Human beings, not profiting From their incarceration. Our emphasis must be on Rehabilitation not incarceration And longer prison sentences” -SEN. BERNIE SANDERS(I-VT.)

1.1

PRISON SYSTEM IN INDIA – AN OVERVIEW The need of reformation in the prison systems throughout the world

can be symbolised in quotation above, although prison systems everywhere are marked by inertia, few can match India's in immutability of practice. A country which over 40 years ago cast off British rule still administers its system under the colonial Prisons Act of 1894. Perhaps because the act is such a relic of the past, or perhaps because prison officials prefer the route of least accountability, the various state prison manuals that embody the 1894 provisions are collectors' items, not only in short supply but expensive. A number of prison commissions have attempted to update and revise the code, but aside from a few states, these efforts have not received legislative approval. It is not only the rules and regulations but the day to day reality of Indian prisons which is so archaic.

1

The Human Right Watch in their paper in 19911 found that the prison sanction (which in the west grew apace with modernization) has not achieved centrality within India; incarceration is probably not more extensive now than it was under British rule. Numbers often give a false sense of precision in India – “give or take a few million,” is a frequent and appropriate qualifier to any estimate – but they do delineate the boundaries of the prison world. The most prestigious and thorough investigation of the prisons, the All India Committee on Jail Reform (under the chairmanship of the retired Supreme Court justice, Anand Mulla), found 1220 facilities in the country as of December 31, 1980, of which 822 (67 percent) were lockups, and almost all of the others, state prisons; together they held some 160,000 inmates. The Indian states, it is true, vary enormously in their record-keeping skills and are notoriously lackadaisical about responding to inquiries from national commissions. Yet, even if the figure were off by a factor of two or three, India would still have one of the lowest rates of incarceration in the world. (The United States, with the highest known rate, has less than one-third of India's population, and incarcerates more than six times as many people as were actually counted in the Indian system a decade ago.) This conclusion is buttressed by the fact that with all due allowance for overcrowding, India does not have the prison buildings to hold that many more inmates. More, the overall lengths of prison stays are quite short (again by American standards). Of the 160,000 inmates ten years ago, 92,000 were under trials, and their periods of confinement while they awaited their turn in court, were almost always less than a year (92 percent). Of the 59,000 inmates already convicted of crimes, 32 percent served less than one year; 16 percent one to five years; 8 percent five to ten years, and 44 percent over ten years.

1

The Human Right Watch, Prison Conditions in India 1991

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Thus, the prisons did have a cadre of long-termers, 26,000 in number, but they were a small fraction (16 percent) of all persons incarcerated. Third, and perhaps most telling, the criminal system, as we have seen, relies extensively on summary justice. To the extent that police (or soldiers) beat or kill putative offenders, imprisonment becomes a superfluous sanction.

If the numbers of inmates is low, it is because

punishment is often meted out in rough and ready fashion. As one would then expect, prisoners are drawn from the lowest classes, and undoubtedly the lowest castes, although contemporary. The All India Committee observed that a majority of the inmates came from the "underprivileged sections of society," noting that "persons who have means and influence generally manage to remain beyond the reach of the law even if they are involved in violation of the law. The figures compiled by other investigations confirm this impression: one study in the state of Uttar Pradesh (a relatively backward region except for the area around New Delhi), reported that 63 percent of prisoners were low income (earning less than 80 rupees, or less than U.S. 5$ a month); only 1.5 percent earned over 335 rupees or about U.S. 20$ a month. Fifty percent of the UP inmates were illiterate; only 10 percent had over 10 years of schooling. Along-with this Physical and psychological torture resulting from overcrowding, lack of space for segregation of sick, stinking toilets for want of proper supply of water, lack of proper bedding, restrictions on movement resulting from shortage of staff, parading of women through men's wards for lack of proper separation, non-production of under trial prisoners in courts, inadequate medical facilities, neglect in the grant of parole, rejection of premature release on flimsy grounds, and several such afflictions has resulted not from any malfeasance of the prison staff but from the collective neglect of the whole system 2 (Human Rights Watch 2001).

2

Human Rights Watch Report 2001.

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The overcrowding, lack of physical and mental activities, poor sanitary facilities, lack of decent health care, all increase the likelihood of health problems in prisons. Kazi et al (2009).3 Mentioned that “prisons are excellent venues for infectious disease screening and intervention, given the conditions of poverty and drug addiction”. It is surprising and indeed shocking that despite the large prison population in India, there is

a

complete dearth of published information regarding the prevalence of health problems in prisons. An exception is a small study in the Central Jail at Hindalga in the Belgaum (the district of Karnataka) 850 prisoners were evaluated. Scholars, policymakers, and practitioners have recently begun to pay serious attention to the issues of prisoners’ reentry and reintegration4.

1.2

MEANING OF PRISON The original term of prison is 'Jail' or 'gaol' or 'penitentiary.' Prison

has been defined as "a place properly arranged and equipped for reception of persons who by legal processes are committed to it for safe custody while awaiting trial or for punishment”.5 A “Prison”6 or “Jail"7 is a facility in which individuals are forcibly confined and denied a variety of freedoms under the authority of the State as a form of punishment. The most common use of prisons as part of the criminal justice system, is in which individuals are officially charged with or convicted of crimes are confined to a Jail or Prison until they are either brought to trial to determine their guilt or complete the period of incarceration they were sentenced to, after being found guilty at their trial. Hence, in its origin the Prison was considered as a

3 4 5 6 7

International Journal of Infectious Diseases, 14, e60-e66. Petersilia & Travis 2001, Lynch & Sabol 2001b, Travis et al. 2001, Corrections Management Quarterly 2001 (special issue)]. The Oxford English Dictionary Vol.VIII P. 1385. From the old French prisoun (see Douglas Harper2001 to 2013) “Prison” on line etymology dictionary, Douglas Harper retrieved 28th June 2013. From the old French prisoun (see Douglas Harper2001 to 2013) “Prison” on line etymology dictionary, Douglas Harper retrieved 28th June 2013.

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place of detention of offenders until trial and Judgment and the execution of the latter. Section 3 of the Prisons Act, 1894 (Act IX of 1894) defines prisons as: "Prison" means any jail or place used permanently or temporarily under general or special orders of the State Government for the detention of Prisoners and include all lands and buildings appurtenant thereto, but does not include - any place for the confinement of prisoners who are exclusively in the custody of the police; Prison Reforms and Social Change (Kaustubh Rote): A well organized system of prisons is known to have existed in India from the earliest time. It has been kept in record that Brahaspati laid great stress on imprisonment of convicts in closed prisons. Manu was against this system yet. It was a common practice for the prisoners to keep in solitary confinement so as to afford them an opportunity of self introspection. The object of punishment during Hindu and Mughal period in India: deter offenders from repeating crime. The recognized modes of punishment were death sentence, hanging, whipping, flogging, branding or starving to death. The prisoners were ill-treated and even now, tortured and subjected to most inhuman treatment in the prison. The Prisoners were kept under strict control and supervision. Thus prisons were the places of terror and torture and prison authorities were expected to be most tough and rigorous in implementing sentences to the prisoners. The British colonial rules in India had been marked the beginning of penal reforms in this country. The British prison authorities made emphatic efforts to improve the conditions of Indian prisons and prisoners as well. They introduced most radical changes in the existing prison system keeping in view the sentiments of the homegrown people. The prison administrators, who were mostly British officers, had classified the prisoners into two heads namely violent and non-violent prisoners. The Prison Enquiry Committee has been appointed by the

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Government of India in 1836, recommended for the eradications of the practices of prisoners working on roads. Most Adequate steps were also taken to eradicate the corruptions among the prisons’ staffs. An officer called Inspector General of Prisoners, has been appointed for the first time in 1855, who was the Chief Administrator of prison in India. His main function was, “maintaining the discipline among the prisoners and the prison authorities”. The conditions of prisoners were harsher than animals in India, and the prisoners were treated with hatred. There was no uniform civil code for giving punishment to prisoners. The meaning of the punishment itself was: “to crush the prisoners”. Jailors were dire persons. But in the year of 1835, some thought of reformation arose. The second Jail Enquiry Committee in 1862 had expressed the concerns related for the insanitary conditions of Indian Prisoners which resulted into death of several cases due to illness and diseases. It emphasized the need of necessity for the proper food and clothing for the prison inmates and medical treatment of ailing prisoners. The Prisoners’ Acts were enacted to bring the uniformities in the working of the prisoners in Indian Prison. The Act had been provided for the classifications of the prisoners and the sentences of whipping were abolished. In India, the medical facilities what were already available to the prisoners in 1866 were further improved and better amenities started to provide to women inmates to protect them against contagious diseases. It must be stated that freedom movement had a direct impact on prison conditions in India. 1.3

CLASSIFICATION OF PRISONERS Prisoners can be categorised in three manners as under:1. Pre-trial prisoners, 2. Under-trial prisoners, and 3. Convicted prisoners. 4. Detenues (under preventive detention) 6

1.3.1 Pre-trial Prisoners Pre-trial prisoners are the accused, detained who are under the custody of the state machinery for the purpose of interrogation and investigation, based on F.I.R. or evidences found during the investigation. There is no specific charge sheet prepared either by the police authority or by judicial authority. They are in the custody of state for very limited period. They are entitled to have separate treatment appropriate to their status because the burden of proof always lies on prosecution and the accused always have privilege of benefit of doubt. Until the accused is found guilty, he is to be understood as innocent person. The state is authorized to take initiative to control the crime at the initial level to maintain law and order in the society and moreover, to obtain the evidences and details of the offence which is assumed to have been committed by the accused. These powers are very wide but they cannot be utilized arbitrarily and adversely against the personal dignity and liberty as a human being. Since the police is monopolized and authorized to use the force as state machinery. There are several limitations on the police authority to safeguard the Human Rights of pre- trial prisoners. 1.3.2

Under-trial prisoners Under-trial prisoners are the prisoners, who are in custody of the

state, awaiting their trial. Their charge- sheet may or may not have been prepared by the police authority or judiciary. In other words under-trial prisoner is a prisoner, who is in judicial custody (Jail), awaiting the trial, in their case. Police investigation might have been completed or chargesheeted or it may be pending. 1.3.3 Convicted Prisoners Convicted prisoner is a prisoner, who is found to be guilty of some particular offence, which is committed by him. after due process of law. He 7

is punished by the competent court as a penal action, to be kept in prison. There are many possibilities for the pre-trial prisoners as well as for undertrial prisoners that they may be acquitted as an innocent after just and fair trial that they are innocent whereas convicted prisoners are the prisoners who have to suffer the punishment for their offences since they are found guilty of the offence and therefore, their liberties are restricted by the State with the help of judiciary and jail authority as a penal action. 1.3.4 Detenues (Detenues under the preventive detention) The preventive detention is a devise with the state to control the crime by keeping the track record of habitual offenders and criminals; they are detained in prison as a precautionary measure and to safeguard the society. Section 151 of The Code of Criminal Procedure provides the authority to the police officer to arrest any probable offender without orders from Magistrate or without warrant if he feels that the commission of an offence cannot be otherwise prevented because of the increasing crimes in society as well as increasing organised crimes such preventive laws like PASA etc. are enacted. Arrest, detention and custody or even judicial custody curtails personal freedoms and liberties guaranteed by the Constitution of India but other fundamental rights are still available to them as citizen of country, these rights may be for their survival, maintain good health or may be for training, educating, recreation, earning, rehabilitation, reconciliation, and human treatment as a human being during the stay in prison.

1.4

OBJECTIVES OF PRISON In the year of 1920 the Indian Jails Committee had unequivocally

declared that the reformations and rehabilitations of the offenders, was the ultimate objective of the prison administrations. This declaration subsequently found its echo in the proceedings of the various Prison 8

Reform Committees that had been appointed by the Central and State Governments under international influences. The United Nations Standard Minimum Rules for the Treatment of Prisoners was formulated in the year of 1955, provides the basic frameworks for such a goal. The International Covenant on Civil and Political Right propounded by United Nation in the year of 1977, to which India is a party what has clearly brought out that the penitentiary system shall comprise treatment of prisoners, the most essential aim of which shall be their reformation and social rehabilitation as well. It is, however have been seen that whereas India is the second to none in terms of an enlightened thinking with regard to the purpose and objectives of the imprisonment of the gap between proclaimed principles and actual practices that was appeared to have been widening in recent years. In the year of 1864, the Second Commission of Inquiry into Jail Management and Discipline had been appointed. In Prison, while recommendation of some specific suggestions to the Prison Commission regarding the security and custody of prisoners, improvement of diets, clothing, bedding and medical care, rehabilitation of prisoners and also made suggestions as to the inmate management, staff management, etc. It is the Prisons Act, 1894, on the basis of what the present Jail Management and Administration is operating in India. Objects of prison can be summarised as follows :a) Deterrence is a very common and primary reason for the punishment. It means dissuading an accused for his wrong doing by making the punishment to the extent that the gains earned from the offence is outweighed by the cost of punishment. In other words a wrongdoer must pay the price of his crime to the individual or to the society, which may be in terms of money or the discomfort, which the accused has to suffer. 9

b) Punishment is essential to create a fear complex in the society and specifically in the minds of wrongdoers that if he commits any crime or illegal act, he will be liable to be punished as the example is being set in the society. Thus it is a devise having two fold effects working parallelly (a) it affects the accused himself physically and mentally so that he may not commit the crime again (b) it sets an example on the rest of the society that others may not indulge in themselves. c) For maintaining law and order situation in the society as well as safety and security of an individual as well as of their properties, punishment works as an unseen divine bone which constantly protects the society from endangerments of such crimes. d) Punishment creates the state of affair of incapacitation for the criminals because it restrains the criminals from doing further crimes meaning thereby the confinements of prisoners creates disabilities of criminals from committing further crimes. Prison system is ideal places where hardcore criminals are sentenced for life imprisonment and thus the society is protected e.g. sex maniacs or serial killers are kept away from the society through out their life which is really useful for a common good at large. e) Honoring the values in the social life is essential for maintaining the social structure. Punishment is a device by which the values codified in law as well as in traditions of the society are reestablished in the minds of people. Victor8 takes this even farther as he maintains that it is immoral of a society not to apply such retributive justice in a case where the guilt of the criminal has been proven beyond doubt and where all legal appeals have been legitimized and exhausted. Delinquents are the public enemies breaking the social harmony, norms, established patent of life, valuable traditions, hence they are 8

Balest 24

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the public enemies and they must be disarmed and should be prevented from doing evil otherwise society would be destroyed. f) The object of punishment is also can be considered of reforming the accused by keeping him away from the society for specific period and providing the atmosphere for him so that he can realise his own guilt and correct himself along with the help of jail machinery and when he is to be rehabilitated in the society, he can be proved as a real gentleman who may respect the norms, traditions and laws of the society. In history of Gujarat, Maharaj Ravishankar had himself done successful experiments of reforming the hardcore criminals, which has proved to be beneficial for accused himself, his family and society at large. g) "nulla poena sine liges / nulla poena sine crimen " This maxim denotes that no punishment outside the law and no punishments except for the crime. It means the justification of punishment must be done in accordance with the norms of the nation means set rules, standards and principles must be maintained by the society. Hence no punishment can be except for the crimes and same way punishment should not be beyond the legal provisos. It is primary duty of the state to observe that all the citizens obey the established, framed rules, regulations and standards of the country. A punishment is not effected within the boundaries of law for the criminals for their crime; it would create the atmosphere of anarchy in the society.

1.5

THEORIES OF PUNISHMENT According to Taylor9 a heard of wolves is quieter and more at one

than so many man, unless they all had one reason in them or having one power over them." As discussed above the objects and reasons of prison are 9

Jeremy Taylor, Works XIII, 306. Heber's Ed. cited in Salmond on Jurisprudence 12 Ed. (By Fi tzgeral d) at p.88. "

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not one but many in number and having multiple folds and impacts on the social life. To maintain law and order, to maintain security and safety for the members of the society, punishment is a major device which can be described as unavoidable evil for common good. The theories of punishment can be classified as under: (1) Deterrent Theory. (2) Preventive Theory (3) Retributive Theory (4) Reformative Theory (5) Expiatory Theory (6) Utilitarian Theory 1.5.1 Deterrent Theory An Eighteenth Century Judge while awarding the death sentence to a person stealing a sheep observed "you are to be hanged not because you have stolen a sheep. But, in order that others may not steal a sheep". The same principle is found true and correct for a white-collar, educated and heavy income tax payer group in one case study conducted by Prof. Schwartz and Miss. Sonia Orleans in 20th Century in year 1967.10 That the element of deterrence did have some effect in changing the attitude towards the Taxation laws). Same way that the punishment some deterrent effect on many people can be accepted without much debate. The efficacy of different aspects of punishment can be pointed out from the old ancient principles of punishments and methods of punishment has been reflected in Manusmruti, Chanakya Niti of Hindu mythology, as narrated in Bible and as provided in

10 Schwartz and Orleans (1967), quoted by Nigel Walker in Sentencing in a Rational Society, p. 59

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Islamic laws, mutilation of a limb as a punishment in case of theft or snatching the flash from the body or cutting the fingers for the theft was the provision which appears very inhumane, cruel and creating a permanent hardship to the criminal. But, it was having really a greater effect and impact in the society as it was restraining the people from doing wrong. In present era the said punishment is applied in Saudi Arabia, the people leave their shops of gold and diamonds while performing the prayer i.e. Namaz, without a single incident of theft. This itself is a conclusive evidence of human psychology of the society of deterrent which keeps criminal away from committing a crime; there temptations are rigorously controlled because of the fear complex of severe punishment of limb.11 As recommended in the 84th Report of the Law Commission, the strict action must be taken against the accused of rape because "rape is a ultimate violation of self......humiliating event in woman's life needs to fear of existence and sense of powerlessness...... experience of figuring in a report of an offence may itself become another assault...... acquittal of many defecto guilty rapist errs to sense of injustice. As decided in case of State of Punjab v. Gurmit Bulvit Singh12, tendency of the Apex Court was imposing the conviction and sentence not less than the minimum. The same thing was established in case of State of Karnataka v. Krishnappa.13 It was observed by Chief Justice Dr. A.S.Anand that "The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely." The offence of rape is considered severe most as compared to a murder. In any of the religious punishment as discussed earlier nobody allows of forgiving or doing settlement for the crime against 11 Leon Radzi nowic z: A History of Engli sh Criminal Law and its Administration from 1750, Vol . I.p.3 12 (1996) 2 SCC 384. 13 (2005) 4 SCC 75

13

the woman i.e. rape and this theory only is still applied forcefully to create a deterrent in the society to rescue the woman and to prevent occurrence of such severe offence against the woman. This theory may have negative aspects as may be criticized by Stalwarts of legal field for other offences but it has still capture the thinking of apex judiciary for some specific offences for the common good of society. 1.5.2 Preventive Theory The profounder of the punitive theory forwards the arguments that object of preventive theory is to prevent the crime. The logic of this theory works on the basis of certain disablements are to be created by the state to check the behaviour of notorious anti-social elements and offenders e.g. imprisonment creates disablements for a period for which they are behind the bars, of course this is not a permanent solution for hardcore criminal and habitual offenders because when they are released from the jails; they commit the crime with additional force and with new techniques which they might have learnt from other prisoners in jail. In the words of Shri Krishna Iyer “they obtain post graduate diploma in criminology.” It is observed in many cases, jails are not reforming the prisoners but it works as nourishing and culturing labourites for the criminals. The Islamic Laws, the Biblical Laws and old ancient laws were providing the amputation of body parts of hardcore criminals or even death penalty was imposed which is based on this theory. The preventive laws like MISA, PASA were based on this theory, that to prevent a criminal (having a past bad criminal record) by detaining him so that he cannot commit any crime which is popularly known as 'preventive detention'. It can be narrated as elimination of a criminal from the society, which may be for a short time, by keeping in jail or by death penalty by not allowing him to be alive. It is also recommended by the jurist that the preventive theory, if merged with deterrent theory which may be known as "preventive deterrent theory" would be more 14

useful to the society for quick, effective results to control the crime rate in the society. 1.5.3 Retributive Theory Retributive theory is a new name given to old punishment theories which is discussed earlier as narrated in Holy Bible or in rules of Shriyat or as provided in Manusmruti etc, where the principle of tooth for the tooth, eye for an eye, nail for the nail was a dominating principle to compensate the psychological feeling of taking a revenge from accused by the victim or victim's family. Actually, in this theory the victim is not capable of taking any revenge against the accused. Hence, the state machinery helps him for settling the vengeance. The another logic behind this theory is that, no citizen should take law in one's hand meaning thereby the justice is a portfolio of the state and not of the victim or victim's family. The negative aspect of this theory is, it creates a severe sense of vengeance between accused and victim themselves as well as their families and very specifically when any innocent person is being punished for a small or petty matter the chances of turning them into a hardened criminal increases which is finally harmful to the society and the concerned accused too. Immanuel Kant, 18th Century German Philosopher has expressed his opinion as under: "Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he had committed a crime, for a human being can never be manipulated merely as a means to the purpose of someone else and can never be confused with the object of law of things.14 While emphasizing the supremacy of legal justice, Kant has observed "It is better than one man should die, than that the whole people 14 The Metaphysical Elements of Justice, Translated by John Ladd (Bobbs Merri ll , U.S.A.) page No.100

15

should perish. If legal justice perishes then it is no longer worthwhile for man to remain alive on this earth". In support of the retribution theory following aspects can be highlighted: 1. Retribution connects the offender to correct values. It is a message to the offender what he did was wrong and therefore retribution cannot be compared with revenge. 2. It will be in the interests of the victims to have retribution agents the wrongdoers. 3. The offender should not get undeserved benefit out of their criminal laws. Niger Walker criticise retribution theory by saying "If the retributionist is arguing that punishment is justified in spiritual improvement, he is asking that the penal system should do the work of the church. 1.5.4 Reformative Theory “Res Ipsa Loquitur” means "thing speaks itself", thus the nomenclature of this theory itself express the meaning of the theory that the offender should be reformed. Mahatma Gandhi also pleaded this theory in a way that we should kill the crime and not the criminal. Meaning thereby the element of crime in human mind which is popularly known in terms of legal language as " mens rea " - the guilty mind is to be reformed and that the criminal attitude is to be corrected by sentencing in a jail which is a reformative school for the criminals which gives such an environments, facilities and opportunities for education, knowledge, professional and vocational guidance and spiritual guidance to reform and to convert a criminal into a civilised gentleman. This theory works on the basis of logic 16

that everybody is innocent person only because of some particular notion of the mind he commits the crime that time. Otherwise all criminals are basically good man, if they are provided good atmosphere to live. It is a philanthropic attitude absolutely contrary to above all theories of punishment. This theory is based under the focus of humanitarian approach towards the criminals. The Probation of Offenders Act, 1958 is absolute creation of this theory which empowers the courts to release certain offenders on probation during which time the accused should be authorised to remain in society and if not found guilty for the same kind of offence again within the stipulated time period, his punishments are waived and if he commits the same kind of crime again, he will be liable for the punishment of the new crime as well as of the previous too. Even Supreme Court has released some accused in severe offence of rape also under this Act. As decided in case of Rajendra Prasad v. State of U.P.,15 Justice Krishna Iyer of the Supreme Court in his majority judgment observed: "It is illegal to award capital sentence without considering the correctional possibilities inside prison. Anger, even judicial anger, solves no problems but creates many." As far as the economic offences are concerned the attitude of the punishment is rather liberal as compared to other criminals meaning thereby if the accused of such crimes are making the repayment to the public financial institutions, they were given the opportunity of getting the bail as well as to facilitate to banks for the recovery of outstanding dues because the ultimate goal is the recovery of public money and not just punishing the criminal at the cost of public money.

15 AIR 1979 SC 916

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1.5.5 Expiatory Theory This theory can be explained in very simple language as under: Crime + Punishment = innocence "On this view, crime is done away with, cancelled, blotted out or expiated by the sufferings of its appointed penalty. To suffer punishment is a debt due to the law that has been violated. Guilt plus punishment is equal, to innocence."16 Of course this theory is not applicable for all types of offences or in civil matters. The punishment is not an ultimate solution which wipes away the sin of an accused and by which he becomes innocent. Reid J. in Exparte observed.17 A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out the existence of the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction, from attaching, if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights, it makes him, as it were, a new man, gives him a new credit and capacity." 1.5.6 Utilitarian Theory The utilitarian consider the punishment as an instrument to achieve to end the crime. In other words because of punishment the accused is restrained doing the crime again, by himself, parallel the anti-social elements of the society gets deterrent effect of the punishment hence they are also restrained from committing the offence. Punishment is considered as a device to reform the offender and parallel reduce the crime. Thus the 16 Salmond on Jurispr ude nce, Edited by Fitzgeral d 12th Ed. p. 99 17 Garland (1873) 18 L. Ed. 366

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punishment is the use for achieving good results for common good in society.

1.6

KINDS OF PUNISHMENT As discussed above punishment is an unavoidable evil like medicine

or surgery to the human body, depending upon the need of body, primarily medicine helps for the recovery of good health and on failure of medicine or in case of seriousness of the patient the surgery is also needed, likewise punishment depending upon different factors is imposed on accused. The determining factors for imposing the punishment can be considered and enlisted as under:a) Provisions of prevailing acts and criminal laws b) Gravity of the offence c) Repetitiveness of the offence (Recidivism) d) Age, Sex, Education, Social background etc. e) Circumstances of offence and criminal history of the Accused if any. In view of all above factors, the punishment is imposed. The kinds of punishment can be classified as under:The Punishments provided in many parts of the world, including India are death, imprisonment for life, rigorous and simple imprisonment, forfeiture of property and fine. 1.6.1 Corporal Punishment Mutilation, branding and flogging were recognised as the mode of punishment throughout the world, since the growth of human society. All religion, emphasise and advise for Corporal Punishment. It is directly affecting the human body of the accused. e.g. 19

a) Whipping- by the state authority or by victim or relatives of victim when accused is whipped by the hunter or by stick in public place. b) Flogging - it is also a type of beating the accused in public place. c) Mutilation - it is process of amputing any part of body of the accused as decided by the competent court of Kaji and by making him permanently disabled of particular body organ e.g. cutting hand for a theft. d) branding - it is a process of creating a special identity of an accused by branding him so that whole society will recognize him as an offender which would give two effects, the first about the tarnishing the reputation and public respect and second it will make the people aware about the presence of branded person which may be used as a precautionary measure. Two Pickpocket ladies were branded by the words "me jeb katri hu" at their forehead by imposing the tattoos, with an intention to make public conscious about their presence in masses, to prevent the pick pocketing and parallel to humiliate both of them, this branding was done by Punjab Police. National Human Rights Commission took the cognizance on 12/01/1994 against the Amritsar Police Personnel and the petition was filed before Punjab and Haryana High Court on 17/01/1994 by engaging Senior Advocate Mohinderjit Singh Shethi. The High Court ordered for plastic surgery to both of them at the cost of police officers. The whipping act was prevalent in U.K. enacted in year 1864. Subsequently was replaced and repealed by new Whipping Act, 1909 was finally abolished in 1955. Flogging was also abolished before a long ago in England. Yet, if this type of punishment is itself a dead letter, the issue whether or not to reintroduce. It is very much a living one, and as recently as 1960 the Advisory Council on the Treatment of Offenders was asked to consider the desirability of such a course.18 18 P. J. Fitzgerald : Criminal Law and Punishment (Cl arendon La Series, 1962), p.228

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1.6.2 Fine “Fine is the most common punishment in every part of the world and it is a punishment, the advantages of which so great and obvious that, we propose to authorise the courts to inflict it in every case… Imprisonments, transportation, banishment, solitude, forced labour are not equally disagreeable to all men. In imposing a fine it is always necessary to have regard to the pecuniary circumstances of the offender, as to the character and gravity of the offence. The mullet which is ruinous to the labourer is easily borne by a tradesman and is absolutely unfelt by a rich zamindar.”19 Fine was imposed even in old age of Manusmruti or in Bible or in Shariyat. In present society it is commonly acceptable punishment to all types of criminals, such as white-collar, hardcore criminals and petty criminals. Fine are normally imposed for offence pertaining to property like embezzlement, fraud, theft, violation of lottery and gambling laws and some petty offences or even for breaking the traffic rules in present days. Indian Penal Code imposes the fine in four ways: (a) As a Sole punishment in specified offences in which the highest limit is fixed up under the act. (b) In certain cases alternative punishment is imposed in form of fine e.g. five years rigorous imprisonment and 25,000 rupees fine and on non-payment of fine of Rs.25,000 additional one year rigorous imprisonment would be imposed - as many times commonly ordered by judiciary. (c) In certain offence in mandatory way. (d) In some offences the fine is obligatory.

19 Note A, Reprint, p.97 of t he Commission’s Report, quoted by R.C.Nigam: Law of Crimes in India.

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The history of fine is, very old as much as the civilization of human society, as narrated above in our Holy religious books. But, Magna Carta and Bill of Rights both have imposed the restriction on excessive and unreasonable fines. 1.6.3 Forfeiture and confiscation of property The underline thought of this punishment is to prevent an accused or his dependants of enjoying unlawful benefits of properties means, thereby accused and his families are deprived of wrongful enjoyment of gains obtained by illegal activities and offences or as a penal action for the offences under sections 126,127 & 169 of Indian Penal Code. 1.6.4 Banishment The patients of severer contagious deceases are kept away from the society with a view to save the society on one hand and to improve the health of the patient on other, the same theory of banishment works by, separating an accused from the society which may be for small period, long period or for whole life. Popularly termed as punishment of "Kala Pani" in India, hardcore criminals, rebels, revolutionaries, reformers, political enemies were transported from India to Andaman & Nikobar Island. Presently also externment (Tadipar)is also a quite regular tradition for the hardcore criminals, anti-social elements who is having recidivist criminal records by the competent authority and in case of violation by criminals by entering into prohibited areas it again attracts further punishments. Thus presently punishment by externment is very commonly used and proven to be the effective device for controlling the crime. 1.6.5 Imprisonment Imprisonment is very simple and ancient punishment as compared to other punishment, which primarily restricts personal liberty freedom of accused, affects his personal image and social recognition. “Traditionally it 22

was held that imprisonment should be used only for the custody of offenders until such time as they could conveniently be dealt with, and this view prevailed in Europe from the time of the Roman Emperor Justinian, for the next thousand years so. In medieval, England prisons were places where suspects were detained until the royal Judges came round on circuit with a commission of ‘Gaol delivery’, to empty the jails and inquire into the alleged crimes.” The reasons behind imprisonment of an accused can be categorized as under:(a) By imprisonment, the accused is separated from the society hence he is being restrained from committing further crimes hence the society is also saved from further losses to the victims. (b) By imprisonment, the accused is separated from his group of criminals, family and relatives and gets the time for self-realisation and correct him. (c) By imprisonment, the accused looses his personal liberties and freedoms because of these deprivations he feels the sense of punishment and makes him realize about his guilt, parallel victim’s sense of vengeance is satisfied, a deterrent effect also created in society. (d) By imprisonment, the state machinery can work in direction of correcting the accused meaning thereby the reformative theory of punishment becomes operative directly and accused can be converted to thorough gentlemen of the society and on completion of imprisonment the members of the society is handed over back to the society with necessary reformations. The rehabilitation is very serious problem for the accused after the imprisonment. It is understood that after release from prison, the accused becomes free but, on the contrary the whole world become prison for him. 23

Because he is never accepted by the society even, if he is reformed as a gentleman. The brand name of an accused or a "prisoner" follows him like shadow not only in days but also in night. 1.6.6 Solitary Confinement Late Prime Minister Shri Jawaharlal Nehru was sentenced to prison many times as freedom fighter during his youth. He has narrated this issue with following observations in his autobiography.20 “Solitary confinement even for a short period, is a most painful affair; for it to be prolonged for years is a terrible thing. It means the slow and continuous deterioration of the mind till it beings to border on insanity; and the appearance of a look of vacancy, or a frightened animal type of expression. It is killing of the spirit by degrees, the slow vivisection of the soul. Even if a man survives it, he becomes abnormal and an absolute misfit in the world”.

The Indian Penal Code, 1860, Section 73 & 74 provide the

time limits solitary confinement as under :(A)

Section 73 Whenever any person is convicted of an offence for which under this

Code the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the following scale, that is to say – (a) A time not exceeding one month if the term of imprisonment shall not exceed six months; (b) A time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year; 20 Jawaharlal Nehru ; A n Auto biography, P.222.54

24

(c) A time not exceeding three months if the term of imprisonment shall exceed one year. (B)

Section 74 In executing a sentence of solitary confinement, such confinement

shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such periods; and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of he whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods. The provisions of this Section are absolutely clear (a) solitary confinement must not be more than 14 days at a time (b) at the second stage when solitary confinement is to be imposed should commence only and only after the gape of 14 days from the end of first solitary confinement (c) when the solitary confinement is more than 3 months then for each month of imprisonment solitary confinement should not increase more than 7 days and in case of subsequent confinement it should not be lesser period of gap between two periods of confinement. In toto during 12 months, maximum solitary confinement should not be more than 84 days and which is to be divided in 12 portions. This punishment is imposed in the rarest of rare case because it is very a brutal form of punishment. In England in year 1893 this punishment is repealed. 1.6.7 Capital Punishment Capital punishment is also very punitive and brutal method of punishment which is officially imposed since ages, as provided by different religions and theories of punishment, for the grievous offences such as murder, rape, murder with rape, sedition etc.

Indian Penal Code also

provides the Capital Punishment for following offences:25

Section-121, Waging or attempting to wage war, or abetting waging of war, against the Government of India. Section-132, Abetment of mutiny, if mutiny is committed in consequence thereof. Section-194, Giving or fabricating false evidence with intent to procure conviction of capital offence. Section-302, Punishment for murder. Section-303, Punishment for murder by life-convict. Section-305, Abetment of suicide of child or insane person. Section-396, Dacoit with murder. Bentham and Becceria were the crusade leaders in England and Europe against the capital punishment with the logic that the punishment itself is an evil, it should not be enhanced by the excessive efforts which, creates severe effect on the life of accused and family members and friends too. Punishment should be imposed with the balance between accused and victim or victim’s family members. Capital punishment imbalances the justice because, punishment leads to a severe vengeance in the mind of the accused, subsequent to punishment against the family members of the victim, which harms both of them and equally to whole society. In England, Romilly was the leader of reformers against the capital punishment. Sydney Silverman who got success in his efforts by getting a new Act “The Murder (Abolition of Death Penalty) Act, 1965. About 192 countries have abolished this capital punishment. In India also as decided by the Apex Court in case of Bachan Singh v. State of Punjab, 1980.21 In popular case of loot, rape and murder of Sanjay Chopra and Gita Chopra, Billa and Ranga have been imposed capital punishment. Their appeal was finally rejected by Supreme Court. 21 SCC 684.. 1980 SCC (Cri.580).

26

Capital punishment is the highest punishment under the deterrent theory of punishment which clearly marks a full-point on the life of hardcore criminal who cannot be allowed even to live in jail. The controversy of capital punishment is a world wide debate, which cannot be concluded in few lines; hence the discussion is sufficient at this juncture.

1.7

INTERNATIONAL OBLIGATIONS AND GUIDELINES In India, the International Covenant on Civil and Political Rights

(ICCPR) remains the core international treaty on the protection of the rights of prisoners. India has ratified the Covenant in 1979 and is bound to incorporate its provisions into domestic law and state practice. The International Covenant on Economic, Social and Cultural Rights (ICESR) states that the prisoners should have a right for getting the highest attainable standard of physical and mental health. Apart from the civil and political rights, so called second generation economic and social human rights as set down in the ICESR also apply to the prisoners. Earlier, United Nations Standard Minimum Rules for the Treatment of Prisoners, 1955 consisting of five parts and ninety-five rules. Part one providing the rules for the general applications. It declares that there would be no discrimination on grounds of race, color, sex, the languages, religions, political views or other opinion, national or social origin, property, birth or any other status. At the same time it is strongly need of respecting the others’ religious belief and moral precepts of the group to which the prisoners belong. The standard rule respects the consideration to the separation of the different categories of prisoners. It is indicating that the men and women must be detained in separate institutions. The under- trial prisoners must have to keep separate from the convicted prisoners. Further, it advocates the complete separations between the prisoners detained under civil law and the criminal offences made by them. The UN standard Minimum Rule states that, it is mandatory to provide the separate residence for young and child prisoners from the 27

adult prisoners. Subsequent UN directives have been the Basic Principles for the Treatment of Prisoners (United Nations 1990) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (United Nations 1988)22. For the issues of the prison offences and punishment standard minimum rules are very clear. These rules state that “no prisoner should be punished unless he/she has been informed of the offences alleged against him/her and given a proper opportunity of presenting his/her defence”. It recommends that the corporal punishment placing in a dark cell and all “cruel, in-human or degrading punishments should completely be prohibited as the mode of punishments and disciplinary actions” in the jails. For the Foreign Assistance for the prison in India is very important for international obligation. India gets Foreign Assistance for the Prisoner from the many countries (Refer Annexure 2). 1.8

MAJOR PROBLEMS OF PRISONS RELEVANT TO INDIA Despite the relatively low number of persons in prison as compared

to many other countries in the world, there are some very common problems across the jails in India, and the situation is likely to be the same or worse in many developing countries. Overcrowding, prolonged detention of under-trial prisoners, unsatisfactory living conditions, lack of treatment programmes and the allegations for the indifferent and even inhuman approaches of prison staff have repeatedly attracted the attention of the critics over the years. 1.8.1 More crowding Congestion in jails, particularly among under trials has been a source of concern. Law Enforcement Assistance Administration National Jail 22 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment General Assembly Resolution 43/173 (9 December 1988)

28

Census in 1970 had revealed that 52% of the jail inmates were awaiting trial23. Obviously, if prison overcrowding is to be brought down then undertrial population has to be reduced drastically. Of course, this cannot be happened without the courts and the police working in tandem. The three wings of the criminal justice system would have to act harmonically. Speedy trials are frustrated by a heavy court workload, police inability to produce the witnesses promptly and a recalcitrant defense lawyer who was bent upon seeking adjournments, even if such tactics harm his/her client. Fast track courts have helped to the much extent, but it has not made any measurable differences to the problem of pendency. Increasing the number of courts could not bring about a desired difference as long as the current `adjournments culture' continues (Raghavan 2004).24 1.8.2 Corruption and extortion Extortion by prison staff, and its less aggressive corollary, guard corruption, is common in prisons around the world. Given that the substantial power, for guards exercised over inmates, these problems are predictable, but the low salaries that guards are generally paid severely aggravate them. In exchange for contraband or special treatment, inmates supplement guards' salaries with bribes. An unpublished PhD dissertation from Punjab University on “The Functioning of Punjab Prisons: An appraisal in the context of correctional objectives” cites several instances of corruption in prison. Another article suggested that food services are the most common sources of corruption in the Punjab jails. Ninety five percent of prisoners felt dissatisfied and disgusted with the food served25.

23 Seventy eight report on congestion of under trial prisoners in jails (Law Commission of India 1979). 24 RAGHAVAN R.K. The hell that is prison Volume 21 - Issue 26, Dec. 18 - 31, 2004 front line 25 Roy JG. 1989. Prisons and Society: A study of the Indian jail system. Gian Publishing House, New Delhi11

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1.8.3 Unsatisfactory living conditions The overcrowding in the prisons leads itself to unsatisfactory living conditions. Although the several jails have reformed outlined earlier have focused on issues like diet, clothing and cleanliness, unsatisfactory living conditions continue in many prisons around the country. A special commission of inquiry, appointed after the 1995 death of a prominent businessman in India’s high-security Tihar Central Jail, reported in 1997 that 10 000 inmates held in that institution endured serious health hazards, including overcrowding, “appalling” sanitary facilities and a shortage of medical staff.26 “No one wants to go to prison however good the prison might be. To be deprived of the liberty and family life and friends and home surroundings is a terrible thing.” “To improve the prison conditions what does not mean that prison life should be made soft; it means that it should be made human and sensible for prisoners”27. 1.8.4 Staff shortage and poor training Prisons in India have a sanctioned strength of around 49030 of prison staff at various ranks, of which, the present staff strength is around 40000. The ratio between the prison staffs and the prisoners in Indian prison is approximately 1:7. It means only one prison officer is available for 7 prisoners in India, while in the UK, 2 prison officers are available for every 3 prisoners. 28

26 Human Rights Watch 2006 27 Pandit Jawaharlal Nehru wrote in India and the World Prison Land (pp.108-129) 28 Karnam M 2008. Prison modernization:Does it bring about change? http://www .humanrightsinitiative.org/new/2008/prison_modernisation_does_it_bring_change. Retrieved on 5th Nov 2014.

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1.8.5 Inequalities and distinctions “Though the prisons may be supposed as the leveling institutions in the world where some different variables that could create/develop the vital effects on the conditions of confinement of the criminal records and their inmates and also their behaviour in prison, other factors play an important part in many countries” (Neier et al 1991). This report provided by the Human Rights, watch specifically cites countries like India and Pakistan, where a “rigid” class system exists in the prisons. It states that under this system, special privileges are accorded to the minority of the prisoners who came from upper and middle classes of their irrespective of the crimes they have committed or the way they comport themselves in prison29. 1.8.6 Inadequate prison programmes Despite the problems of overcrowding, manpower shortage and other

administrative

difficulties,

innovative

initiatives

have

been

undertaken in some prisons. For example the Art of Living is carrying out a SMART programme in Tihar Jail. It includes two courses per month with follow up of the sessions every weekend. Two courses are annually conducted for prison staff. But these may be more by way of exceptions and experiments. A Srijan project is aimed at providing social rehabilitation there. Still, such programmes are few and far in from Indian Prison. In India, many prisons having the vocational training activities, but these are often outdated even. Hardly any of the prisons have well planned prison programmes providing the daily structured activities, vocational training, pre-discharge guidance and post-prison monitoring. 1.8.7 Poor spending on health care and welfare In India, an average of US$ 333 (INR 10 474) per inmate per year was spent by prison authorities during the year of 2005, distributed under 29 Neier, Aryeh. 1991. "Watching Rights." The Nation

31

the heads of food, clothing, medical expenses, vocational & educational, welfare activities and others (National Crime Records Bureau (NCRB) 2005). This is in contrast to the US, where the average annual operating cost per state inmate in 2001 was $ 22,650 (the latter presumably also includes salaries of prison staff). The maximum expenditure is on food in Indian prisons. West Bengal, Punjab, Madhya Pradesh, Uttar Pradesh, Bihar and Delhi reported relatively higher spending on medical expenses during that year, while in Bihar, Karnataka and West Bengal reported relatively higher spending on vocational and educational activities. Tamil Nadu, Orissa and Chattisgarh reported as it is relatively higher spending on welfare activities regarding with the prison.30 1.8.8 Lack of legal aid In India, legal aid to those who cannot afford to retain the counsel which is only available at the time of trial and not when the detainee is brought to the remand court. Since the majority of prisoners, those are in lock up as well as those in prisons have not been tried, the absence of legal aid until the point of trial reduces greatly the value of the country’s system of legal representation to the poor. The lawyers are not available at the point when many of them need such assistance. A workshop was conducted by the Commonwealth Human Rights watch in the year of 1998 in Bhopal (M.P.), have focused on several aspects related to legal aid. It was pointed out that around 70% of the prison population was illiterate and lacked an understanding of prisoners’ rights even. Thus the poor prisoners in the prison did not always get the provisions in law though the State was obliged to provide the legal aid. As also observed by the Mulla Committee, most prison inmates belong to the economically backwards classes and this could be attributed for their

30 National Crime Records Bureau (NCRB) 2005.

32

inability to arrange the bail bond. Legal aid workers are needed to help such a person in getting them released either on bail or on personal recognizance. The bail provisions must be interpreted liberally in the case of women prisoners with children, as children suffer the worst kind of neglect in the world when the mother is in prison. The lack of good and efficient lawyers in the legal aid panels at that time was also a concern what raised. Several suggestions were made to speed up of the trial processes, so that the population of under trials could be reduced to lower population in prison. Some of the suggestions provided were expeditious holding of trials, making it more possible for under trials to plead guilty at any stage of the trial, system of plea bargaining. In a seminar the tough efforts have been made at the Tihar Jail by the University of Delhi faculty and students of law in the field of legal aid were highlighted. This included imparting legal literacy to the prisoners, sensitizing the prison administration, taking up individual prisoners to provide a legal aid, involving para-legal staff to work with prisoners, both convicts and undertrials. The seminar had suggested for Lok Adalat involvement to be greater and that constant monitoring of prisons was necessary to identify inadequacies and shortcomings in the prison administration. It finally suggested that there would be need for law reform as essential to the entire system of legal aid. A similar finding had been noted in the NIMHANS-National Commission for Women study in the Central Prison, Bangalore. In the Indian prison many of the women were illiterate, had never stepped out of their houses, had having no any financial resources and many had been arrested on petty charges. Most had no idea about legal procedures, such as, what is the process of trial, how to arrange for a defense lawyer, what laws exist to protect their children or property etc. 33

1.8.9 Abuse of prisoners Physical abuse of prisoners by the guards is another chronic problem in the prison of India. Some countries is continued to permit the corporal punishments and the routine uses of leg irons, fetters, shackles, and chains. In many prison systems in India, the unwarranted beatings are an integral part of the prison life. Women prisoners in Indian Prison are particularly vulnerable for the custodial sexual abuse. The problem was widespread in all over the world especially in the United States, where male guards outnumbered women guards in many women's prisons. In some countries, Haiti being a exclusive example, female prisoners were even held together with male inmates, a situation that exposed them to rampant sexual abuse and violence. A book reviewing prison services in Punjab, reported that, to get food supplements, or blankets in winter season, class c-prisoners must fan the convict officers, or massage their legs, or even perform sexual favors for them in the prison. The enslavement of other prisoners for the convict officers who effectively run the prisons is particularly severe for new comers (known as amdani). In prison, they are teased, harassed, abused and even tortured as part of the process of breaking them in.31 1.8.10 Problems of women prisoners in India-custodial rape( through a case study) For women who are detained by the police, a particular danger is rape in custody. Many of the victims are migrant women who lack the established community connections that would make protests in their behalf effective. Renu Mandal, 27, had arrived in Delhi from West Bengal in January 1990, just five days before the incident that led to her rape in police 31 Human Rights Watch 2001.

34

custody. She settled in an area known as Chittaranjan Park that is largely populated by Bengali migrants, moving in with her sister and her sister's husband. On January 11, Renu quarreled with a neighbor's child and slapped the child. The episode escalated into a dispute between the two families. two police officers who were in the neighborhood at the time intervened and took Renu and her brother-in-law into custody. The brotherin-law was beaten and released; Renu was detained and raped. Shortly afterwards, she was released. When she got back to her sister's home, she related what had happened to her and her brother-in-law and others took her to see a local official to complain. In addition, she was examined at the All India Institute of Medical Sciences to verify what happened to her. As a consequence, one police officer was dismissed and another was suspended. It is impossible to assess the frequency of custodial rape. According to the PUDR, ‘chance circumstances’ brought these cases to light. Otherwise they probably would have gone unreported. To a far greater extent than in Western countries, the victims of rape risk punishment themselves or ostracism if what happened to them becomes known. They may be rejected by their husbands and families and, in the case of unmarried girls, the chances of marriage are reduced drastically. Such crime statistics as are available in India make it seem that rape is exceedingly rare, gross under reporting seems the best explanation. In the case of rape in custody, the factors that militate against reporting are especially great. it is unlikely that the woman's shame would ever be known by anyone other than the victim and her rapists if she maintains silence,the fear of further retribution is especially great when it is the police who are the rapists; the woman has little or no opportunity to raise a prompt outcry after the rape, and the almost certain result of a complaint is that the victim would suffer more while nothing would happen to her rapists..

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1.9

CONSEQUENCE

OF

PRISON

STRUCTURE

AND

FUNCTION Physical and psychological torture resulting from overcrowding, lack of space for segregation of sick, stinking toilets for want of proper supply of water, lack of proper bedding, restrictions on movement resulting from shortage of staff, parading of women through men’s wards for lack of proper separation, non-production of undertrial prisoners in courts, inadequate medical facilities, neglect in the grant of parole, rejection of premature release on flimsy grounds, and several such purgatory result not from any malfeasance of the prison staff but from the collective neglect of the whole system (Human Rights Watch 2001). In many places in our country, the non-governmental organizations are there what provide rehabilitation programmes and a few provide aftercare. Some notable examples are including the Prison Fellowship International in Indian Prison system. Most of the prisoners in Indian prison are ill prepared for release. No steps are taken for minimizing of their chance of committing re-offences. Programmes for developing a set of values, the ethos of honest labour and to build pro-social ties with the community are essential. The well-established prisons in India is with the continuous of good leadership generally impart literacy to the illiterate inmate and offer facilities for higher education to those who were already reasonably educated and are willing for improving their knowledge so that they are usefully employed after getting back to the community. 1.9.1 Health Problems in prisons In the prison the problem of the overcrowding, poor sanitary facilities, lack of physical and mental activities, lack of decent health care, all increase the likelihood of health problems have increased. Kazi et al 36

(2009) mention that prisons are “excellent venues for infectious disease screening and intervention, given the conditions of poverty and drug addiction”. It is surprising and indeed shocking that despite the large prison population in India, there is a complete absence of published information regarding the prevalence of health problems in prisons. An exception is a small study in the Central Jail at Hindalga in the Belgaum (district of Karnataka) 850 prisoners were evaluated.32 The follow-up of these prisoners for a period of 1 year has revealed that anaemia (54.82%) was common morbidity among the chronic morbidity followed by respiratory tract infections (21.75%) and with diarrhoea (13%) for acute morbidity. Pulmonary TB and HIV contributed 2% and 1.5% respectively. Other morbidity included diabetes (3.6%), senile cataract (7%), pyoderma (12%) etc. Very few details are available for these works are including the criteria for diagnosis, investigations carried out etc. In another study, anemia was the common physical problem, what noted in Indian prisons.33

1.10 PRISONS ACT 1894 It is the Prisons Act 1894, on the basis of what the present jail management and administration operates in India. This Act has hardly undergone through any substantial change. However, the process of reviewing of the prison problems in India has been continued even after this. In the report of the Indian Jail Committee (IJC) 1919-20, for the first time in the history of prisons, 'reformation and rehabilitation' of offenders were identified as the main objective of the prison administrator. Several committees and commissions have been appointed by both central and state governments after Independence, which has emphasized humanization of 32 Letter in the Indian J Community Medicine, Bellad et al 2007. 33 Gupta et al., 2001.

37

the conditions in the prisons. The need for completely overhauling and consolidating the laws related with the prison has been constantly highlighted. The Government of India Act 1935 has resulted in the transfer of the subjects of jails from the centre list to the control of provincial governments,

hence

further

reduced

the

possibility

of

uniform

implementation of a prison policy at national level. The State governments thus having their own rules for the day to day administration of prisons in India, upkeep and maintenance of prisoners, and prescribing procedures. In the year of 1951 the Government of India had invited the United Nations expert on correctional work, Dr. W.C. Reckless to undertake a study on the prison administration for Indian Prison and to suggest policy reform for it. His report was titled as 'Jail Administration in India' made a plea for transforming jails into reformation centers so that reformation of India could be easy for the Indian prison. He also recommended that the revision should be for outdated jail and provided the manuals. In the year of 1952 the Eighth Conference of the Inspector General’s of Prisons, have also supported the recommendations of Dr. Reckless regarding prison reformation. Accordingly the Government of India has appointed the All India Jail Manual Committee in the year of 1957 for preparing a model prison manual. The committee submitted report in 1960. The report had made a forceful plea for formulating a uniform policy and latest methods relating with the jail administration, probation, after-care, juvenile and remand homes, certified and reformatory school, borstals and protective homes, suppression of immoral traffic etc. The report also suggested the amendments in the Prison Acts 1894 to provide a legal base for correctional work.

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Box 1.1: Press Information Bureau Press Information Bureau, Govt of India Press Release August 4, 2009 Lok Sabha The Union Government has received proposals from State Governments regarding modernisation of prisons in their respective States. Considering the demand of various States for granting further financial assistance for construction of new jails/additional barracks so as to address the problem of overcrowding, the Ministry of Home Affairs has initiated the process of formulating second phase of the scheme of modernization of prisons. Necessary steps are being taken in this regard in consultation with the Ministry of Finance. The proposal so received from the state Governments will be considered only after the proposal mooted by the Ministry of Home Affairs is approved by the Cabinet. The proposals of State Governments shall be processed depending upon the terms of approval of the scheme as also the funds sanctioned by the Cabinet and provided in the budget. This information was given by the Minister of State in the Ministry of Home The scheme for modernization of prisons was launched in 2002-03 with the objective of improving the condition of prisons, prisoners and prison personnel. The components include construction of new jails, repair and renovation of existing jails, construction of additional barracks, improvement in the sanitations & water supply and construction of staff quarters for prison personnel. Activities under the scheme have been construction of 168 new jails, renovations, repairs and construction of 1730 new barracks, construction of new quarters of number 8965 for staff as well as improvement of water and sanitation in jails. The scheme had extended to 31.3.2009, without affecting the total outlay of Rs.1800 crore (Govt. of India, Ministry of Home Affairs). The second phase has been envisaged in 2009 with a financial outlay of Rs 3500 crores. However, manhy questions

39

have been raised whether modernization can bring about the change without integrity of any purposes. Can isolation of any institution from public support and scrutiny make it transparent and attentive for its objectives? Any government that claims attempting to integrate the felon into society first of all should declare prison is as much a public institution as that of a university or hospital; remove its isolation and integrate it functionally and physically into society; make police, judiciary, medical and educational departments, conscious of their accountability for pathetic prison conditions (Karnam 2008). Otherwise the most of things are not going to change just with the allocation of crores of rupees and launching of schemes.34

1.11 THE MODEL PRISON MANUAL The Indian Jail Committee (IJC) prepared the Model Prison Manual (MPM) and presented it to the Government of India in 1960 for implementation. The MPM 1960 consists the guiding principles on the basis of which the present Indian prison management is governed. On the basis of the Model Prison Manual the Ministry of Home Affairs, Government of India, in 1972 appointed a working group in the Indian prisons. It brought out in its report that there is much need of a national policy for the prisons. It also made important recommendations with regard to the classification and treatment, for the offenders and laid down the principles.

1.12 PRISON SYSTEM AND ITS SOCIAL COMMUNITY A prison or jail can be defined as a facility in which prisoners are forcibly kept and are denied of variety of freedoms. Prison are commonly used as a part of a criminal justice system, in which individuals officially convicted of crimes are confined to a jail or prison until they are 34 Karnam M 2008. Prison modernization:Does it bring about change

40

either brought to trial to identify and justify their guilt or complete the period of custody they were sentenced to after being found guilty at their trial. Authoritarian regimes also frequently use prisons and jails as tools of political subjugation to punish political crimes, often without trial or other such legal due process; however this use is illegal under most forms of international law governing processes of justice. In times of war or conflict, prisoners of war may also be held in military prisons or prisoner of war camps, and the large groups of civilians may be imprisoned in the custody camps. Datir, 1978 tells us that the word Prison has been derived from the Latin word which means, “To seize”. Mueller, 1970 tells that it is a place where the penalty of caging is performed35. John Howard (The British reformer) in his book The State of the Prisons in England and Wales (1777) has provided observation on prison condition of Europe. The book influenced the passage of a law that led to the construction of the first British prisons36. Unlike to social system, prison system has a different place in the society. The prison system isolates the criminals from the general society, so that they cannot commit crimes during certain period of times. Also, our society wants retribution for improving the conditions. The prison system, in India, is expected to make life unpleasant for the people who, by their crimes, have made others lives unpleasant. Finally, Indian society wants to reduce crime rates now. Sutherland and Cressey, 1960 in his research found that during the first part of the 16th Century in Frankfurt it was ordered that for certain 35 International Journal of Scientific & Engineering Research, Volume 3, Issue 12, December2012 ISSN 2229-5518 36 The British reformer) in his book The State of the Prisons in England and Wales (1777)

41

offences, “the Criminal shall be imprisoned and forgotten for a time”. They also said that the prison system is expected to reduce crime rates not only by reforming the criminals but can also by deterring the general public from behavior which is punishable by imprisonment Before the 1700’s, governments hardly ever imprisoned offenders for punishments37. Clemmer, 1953 defines that no society can be crime free and criminals are found in all age groups, among both sexes and in all strata of society. Apparently, the prison represents is the worst of the social system.38 Grosser, 196839 defined though prison system has a unique position in the society in which organizations compete either for economic resources or for the loyalty and support of group members as it is non competitive in the sense, that no other organization challenges it directly. For the Prisoners, prison system is most closed or protected system in India. Members of the larger society (except for the relatives of the inmates, and official and non official visitors) having no direct stake in the prison in terms of ownership, goods, services or reciprocal relation of any kind. Thus, the prison system is relatively most protected from outside scrutiny. Morris, 1995 The prisons of the ancient world have disappeared. Those of it antiquity and medieval Europe have fallen into ruin, have been recycled into the other uses or those have been preserved as Museums, their varied history usually explained only in the terms of modern concept of penology40. Chowdhary, 2002 The first phase of ancient civilization in India when Dharma was Supreme, the offenders were shown maximum 37 Sutherland, Edwin H. and Cressey, Donald R. (1960) Principles of Criminology, Sixth Edition, Philadelphia: Rowman and Littlefield. 38 Clemmer, Donald (1953) The Prison Community, New York: Holt Rhinehart and Winston. 39 Grosser, George H. (1968) External Setting and Internal Relations of the Prison, edited by Lawrence Hazelrigg in Prison within society, New York: Doubleday 40 Morris, Norval and David J. Rothman (1995) The Practice of Punishment in Western Society, New York: Oxford University Press

42

tolerance, but that was gradually ousted by political party of the King in the middle ages. The Muslim Law which was prevalent in the medieval period of India, it is revealed that imprisonment was not recognized as a form of punishment. During Akbar regime, Badayunm records that on birth of Prince Salim, the Emperor set out with all expeditions on Agra and in the excess of his joy ordered all prisoners to be released. During the late medieval period, the Christian Church had granted an asylum or sanctuary to deserters and criminals. These canon Courts were traditionally forbidden for the shed blood41. Morris and Rothman, 1995 In its present form, the prison is a relatively modern invention having been in existence for less than 300 years. It has its roots in the north east of the United States and in Western Europe, has subsequently spread around the world, often in the wake of colonial expansion. Prisons as places of detention, where people waited to be tried, until a fine or debt was paid or until another court disposal was implemented, existed for many centuries. But the use of prison as a direct disposals of the court to any significant extent that could be dated to a relatively recent period. It was not inevitable that prisons should have developed into the model which we have now. Varma, 197242An act forbidden by law and for performing which the perpetrator is liable to punishment. Crimes has been divided by the English Law in British age “felonies and misdemeanor”. The former was included with the murder, robbery, arson, forgery etc. and were usually punishable by confinement in a State prison or even death. The latter includes a liable, an assault,

the fraud and the breaches of statutory

41 Chowdhary, Raj Nitai. (2002) Indian Prison Laws and Corrections of Prisoners, New Delhi: Publisher Deep & Deep Publication Private Limited 42 Verma, S. K., & Verma, A. (1989). PGI general wellbeing measure. Lucknow: Ankur Psychological Agency.

43

obligations. These were the less serious offences in India, only punished by fine or jail (Clinnared, 196743). Pillai 1984) Pillai, K.S. (1984) Principles of Criminology, Madras: TLL Criminalism may be the action of a person not yet criminal and a crime is the deviation from a breach of a conduct norm. This deviation or breach is punished by the society by means of its sanctions, rules and regulations. But the punishments are not only the criterion to give value. In India, the Religion, art, education and other social logical agencies also reveal value for Indian even for the outsiders. The history for the prison establishments in India and subsequent reforms have been reviewed in detail by Mahaworker (2006).44 In his work he found that the modern prison in India originated with the Minute by TB Macaulay in 1835. The first phase of ancient civilization in India when Dharma was Supreme the offenders were shown the maximum tolerance, but that was gradually ousted by political party of the King in the middle ages (Chowdhary, 2002:13). The ancient period speaks of four methods of punishment (Danda) namely, by gentle admonition, by the severe reproofs, by fines, and by corporal punishments and declared that these punishments may be inflicted separately or together according to the nature of the offence. In its present form the prisons are the relatively modern inventions having been in existence for less than 300 years (Morris and Rothman, 1995). Increasing the number of courts cannot bring about the desired differences as long as the current ‘adjournments culture’ continues (Raghavan 2004). Tihar Central Jail, reported in 1997 that 10000 inmates held in that institution endured serious health hazards, including

43 Clinnared, B. Marshall, and Richard Quinney, (1967) Criminal Behavior System, New York: Holt, Rinehart and Winston 44 Mahaworker (2006) :PRISON MANAGMENT : PROBLEMS AND SOLUTIONS.

44

overcrowding, “appalling” sanitary facilities and a shortage of medical staff (Human Rights Watch 2006). Though prisons are supposed to be leveling institutions in which the variables that affect the conditions of confinement are the criminal records of their inmates and their behavior in prison, other factors play an important part in many countries (Neier et. al, 1991). The enslavement of the other prisoners for the convict officers who effectively run the prisons is particularly severe for new comers. They are teased, harassed, abused and even tortured as part of the process of breaking them in (Human Rights Watch 2001) According to Reckless, 1940 “punishment is the redress that common wealth takes against an offending member”. (Newman, 1978)45 although recognizing the difficulty of defining punishment presents thus: Punishment is the pain or other unpleasant consequence what can result from an offence against a rule and that is administered by others, who represent legal authority, to the offender who broke the role. From purely social point of view, and eliminating all considerations of sin, immorality or degree of criminality, crime is nothing more or less the failure on the part of the offenders for adjusting themselves to the social surroundings in which he happens to find himself. The system cannot simultaneously be maintained,

regimented disciplined and a therapeutic atmosphere

characterized by a permissiveness and maximum regard for individual needs as stated by (Galtung, 1968)46. The retributive theory is focused on the fulfillment of moral justice. The good actions deserve to be crowned with the good reward and a bad action meets its own fate.47 (Mackenzie, 1938). Says “it is only when an offender sees the punishment of his crime to be natural or logical outcome of his act i.e. he is likely to be lead to any

45 Newman, G. (1978) The Punishment Response, New York : Lippincott 46 Galtung, John (1968) “The Social Functions of a Prison”, edited by Lawrence Hazelrigg (Ed.), Prison within Society, New York. 47 Mackenzie, J.S. (1938) A Manual of Ethics, London: University Tutorial Press.s

45

real dependence: and it is only this recognition also that is likely to lead others to any real abhorrence of crime, as distinct from mere fear of its consequences.” It has been argued that revenge as a justification for punishment is deeply in grained in human nature and experience (Glenville, 1955).48 The reformative theory implies that the offender should, while punished by detention, be put to educative and healthy influences. Reformatory punishment may mean either that the offender is reformed while being punished, or that he is reformed by punishment itself Box 1.2: Brief of Prison System and Its Social Community  The prison system isolates criminals from general society.  The history of prison establishments in India and subsequent reforms have been reviewed in detail by Mahaworker (2006)  In its present form, the prison is a relatively modern invention having been in existence for less than 300 years.  It is only when an offender sees the punishment of his crime to be natural or logical outcome of his act i.e. he is likely to be lead to any real dependence: and it is only this recognition also that is likely to lead others to any real abhorrence of crime.

1.13 TRENDS AND PRESENT SCENARIO OF PRISONS AS SOCIAL The prison community is a relational system in which a number of persons, inmate and personnel, interact overtly and covertly with one another according to specially prescribed rules of behavior. Within the confines of the prison locale, inmates and staff participate jointly in many of the common social relationships and activities found in "free" communities outside prison walls. These relationships and activities include the production of agricultural and industrial products, the utilization of health services, the acquirement of academic, vocational, and industrial

48 Glenville, William (1955) The Proof Of Guilt, London: Stevens and Stevens Ltd..

46

education, participation in religious services, participation in recreational activities and programs, and cooperation in many other communal activities. A scientific knowledge of the dynamic interrelations

existing

between social groups within the prison community is indispensable to the prison

administrator,

warden, deputy warden, heads of prison

departments, and other members of the prison staff. The orderly operation of a prison or prison system depends primarily upon a sociological understanding of the nature of the functional relations existing between the formal personnel groups and the informal inmate groups within the prison community. These functional relationships may be comprised under the caption, "Group Dynamics." In other words, this paper deals specifically with the dynamic relations existing between the informal social structure of the prison community and the formal social structure. The data for this paper are based upon investigations of prisons in five mid-western and southern states, and previous studies of the prison community49. Donald Clemmer USA 194050 In his book “The Prison Community” on the part of trained observer he has attempted to study prison life under a sociological aspect. This study also includes considerable numbers of essays, letters and answers to questionnaire by the inmates themselves. The idea that prison has its social organization, quite independent of its official administration, is by no means new. In his paper he described the prison community both as an actuality and as an ideal. As it now exists there is constant hostility between guards and prisoners; socialization means one thing for guards and another for prisoners;

formal education

is usually inadequate

and ineffective;

"training" in crime techniques, although informal, is very effective. When

49 Dr. Caldwell ‘Journal of Criminal Law and Criminology’ (1956) Volume 46 issue 5 50 Clemmer, Donald (1953) The Prison Community, New York: Holt Rine hart Winston.

47

used as a frame of reference for prison administration,

it is clear that

convicts must learn to live in a community, perhaps at first by transfer to such minimum security prisons as at Wallkill in New York. That hostility

between inmates and house officers can be cut down has been

demonstrated at Norfolk Colony. The building of a sense of social responsibility is well illustrated by the English experiment at Lowdham Grange. What has been proposed as a practical plan for penal administration appeals to the authors as the logical implication of a sociological analysis? A clear realization of the degenerating influence of our present prison system should encourage more experiments aiming to devise a community for offenders that will actually rehabilitate51. Shift from public prison to private prison David W. Miller52 In his writings David Miller talked about the drain of public prison systems and the role of privatization during various phases of economic condition of the State. As per his research in the late 1990s, the privatization movement of prisons continued to grow due to the Federal Government contracting with private correctional companies. Prior to this, only state public correctional systems had contracted with private organizations to house inmates. Cheung (2002)53 writes, "Traditionally, the federal government has been more cautious in experimenting with privatization." However, in the year of 1997, the Federal Bureau of Prisons (FBOP) contracted with Wackenhut for the transfer of its facility in Taft, California to a private prison. Since this first contract was established with the private prison industry, "federal interest in the privatization of prisons has boomed, due in part to mandatory minimums and harsh drug sentencing 51 Norman S. Hayner and Ellis Ash (American Sociological Review, Vol. 5, No. 4, (Aug., 1940), pp. 577-583): 52 The Drain of Public Prison Systems and the Role of Privatization: An Analysis of State Correctional Systems David W. Miller: 53 Cheung, Amy (2002, updated 2004). "Prison Privatization and the Use of Incarceration." The Sentencing Project. Retrieved December, 2009

48

laws, and consequent overcrowding in prisons. By the mid in 2001, federal prisons were operating at 33% over capacity" (Cheung). On average, Wackenhut and CCA provide a 5-15% cost savings when measures focus on cost per inmate rates (Smith, 1993).54 However, in 2001, the Bureau of Justice Assistance stated that "rather than the projected 20-per- cent savings, the average saving from privatization was only 1 percent". Private prisons for profit remained unconstitutional for nearly a decade until Public Law 96-157, passed by Congress in 1979, implemented the Private Sector/Prison Industry Enhancement Pro- gram (PIE-Program). The legislation itself did not legalize the privately running prisons, but it did open the gateways for states to determine, if private prisons could operate in their borders or not (Herraiz, 2004).55 In the year of 1983, Texas was the first state to allow the private organizations to run some of its correctional facilities, followed by Florida and Tennessee as well. Currently the CCA, the oldest private corrections company running 60 prisons and jails, housing close to 60,000 prisoners in it, makes it the sixth largest operator of prisons of the world after the states of Texas, California, New York, and Florida, and the Federal Bureau of Prisons. The trend in prison system and prison community in India has seen dramatic

change.

After

independence

along

with

blueprint

of

industrialization, reforms in prison system were also of prime concern. The Government of Uttar Pradesh had appointed U.P. Jain Reform Committee 1946 to bring the prison administration of the state at par with some of the advance

countries.

Subsequently

began

the

experiment

of

the

recommendation of the committee in the Fatahgarh central prison. The 54 Smith, Phil (1993). "Private Prisons: Profits of Crime." Retrieved , December, 2009, from http://mediafilter.org/MFF/Prison.html.. 55 Herraiz, Domingo S. (2004). "Prison Industry Enhancement Certification Program." U.S. Department of Justice: Office of Justice Programs: Bureau of Justice Assistance.

49

success of the Fatehgarh experiment led to the conversion of Lucknow central prison into model prison in 1949. With an objective of improvement of social life of prisoners various activities has also been organized by various community which include three Training of Trainer workshops to be undertaken in collaboration with each RICA in Chandigarh, Pune and Kolkata for a selection of maximum 25 participants. These workshops will be based on a pilot workshop developed and delivered in Vellore in January 2013 and will cover international human rights standards in prison, principles of good prison management, security, pre-trial detention, health care, vulnerable groups and reintegration and how these issues can be properly addressed within Indian prisons. Such activities expected results like an on-going resource of competent trainers to be established within the Indian Prison and Corrections Service through the delivery of training of trainer programmes, improved knowledge and capacity of local partners and stakeholders to support the development of a professional prison service and exposure of professionals to international good practice for prison management and administration etc.56

1.14 REFORMS IN PRISON SYSTEM: A FUTURISTIC VIEWPOINT The history of prison establishments in India and subsequent reforms have been reviewed in detail by Mahaworker (2006). A brief summary of the same is presented below. The modern prison in India originated with the Minute by TB Macaulay in 1835. A committee, named as the Prison Discipline Committee had been appointed what submitted a report on 1838. The committee recommended increased rigorousness of treatment while rejecting all humanitarian needs and reforms for the prisoners. Following the 56 Based on Workshop by Panel Reform International

50

recommendations of the Macaulay Committee between1836-1838, Central Prisons were constructed from 1846. The contemporary of the Prison administration in India, thus became a legacy of British rule. It is based on the notion that the best criminal code can be of little use to a community unless there is good machinery for the infliction of punishments. In 1864, the Second Commission of Inquiry into Jail Management and Discipline made similar recommendations as the 1836 Committee. In addition, this Commission made some specific suggestions regarding accommodation for prisoners, improvement in diet, clothing, bedding and medical care. In the year of 1877, a Conference of Experts met for purpose of inquires into prison administration. The conference proposed the enactment of a prison law and a draft bill was prepared. In the year of 1888, the Fourth Jail Commission had been appointed. Based on its recommendations, a consolidated prison bill had been formulated. Provisions regarding the jail offences and punishment were specially examined by a conference of experts on Jail Management. In 1894, the draft bill became law with the assent of the Governor General of India. The prison establishments in India and subsequent reforms have been reviewed in detail by Mahaworker (2006). The modern prison in India had been initiated with the Minute by TB Macaulay in 1835. A committee named as the Prison Discipline Committee (PDC), had been appointed, it submitted its report on 1838. The committee recommended increased rigorousness of treatment while rejecting all humanitarian needs and reforms for the prisoners. Following the recommendations of the Macaulay Committee, within the period of 1836-1838, Central Prisons were constructed and had been initiated in 1846.

51

Before the 1700’s, governments seldom imprisoned criminals for punishment. Instead of it the people were imprisoned while awaiting trial or punishment. Common punishments at that period have been included branding, imposing fines, whipping and capital punishment (execution). The authorities punished most offenders in public in order to discourage other people from breaking the law. Some criminals were punished by being made to row the oars on ships called galleys. During the 1700’s, many people including British Judge Sir William Blackstone criticized use of executions and other harsh punishments. In 1787, a group of influential Philadelphians, mostly Quakers,

formed the Philadelphia Society for

Alleviating the Miseries of Public Prisons (now the Pennsylvania Prison Society). During the eighteenth century, New York prison officials developed two major systems of prison organization—the Auburn System and the Elmira System The contemporary prison administration in India is a legacy of the British Rule. Lord Macaulay, while presenting a note to the Legislative Council in India on December 21, 1835, for the firsttime, pointed out the terrible inhumane conditions prevalent in Indian prisons and he termed it as a shocking to humanity. Later A Conference of Experts was held in 1877 to inquire into the prison administration in detail. The Fourth Jail Commission was appointed by Lord Dufferin in 1888 to inquire into the prison administration. The process of review of prison problems in the country, continued even after the enactment of Prisons Act, 1894. The first ever comprehensive study was launched on this subject with the appointment of All India Jail Committee (1919-1920). The constitutional changes brought about by the Government of India Act of 1935, which resulted in the transfer of the subject provincial

of

prisons

in the control of

governments, further reduced the possibilities of

uniform

implementation of the recommendations of the Indian Jails Committee 1919-1920 in the country. The year 1952 witnessed a significant break-

52

through in national coordination on correctional work as in that year the Eighth Conference of the Inspectors General of Prisons was held after a lapse of 17 years. In the year of 1957, Manual Committee prepared a Model for the Prison Manual. In 1972, the Ministry of Home Affairs, Government of India, appointed a Working Group on Prisons which presented its report in 1973.

This Working Group brought out in its report the need for a

National Policy on Prisons. An affair during 1977-79

was indicative

of a growing awareness for providing a thrust towards the development of prisons in keeping with certain minimum norms. This trend took a definite shape when the Seventh Finance Commission. In pursuance to the directions given by the Hon’ble Supreme Court in a case of Ramamurthy Vs. State of Karnataka, 1996, the Government of India has constituted All India Model Prison Manual Committee in November, 2000 under the chairmanship of Director General of BPR&D to prepare a Model Prison Manual for the Superintendence and Management of Prisons in India in order to maintain uniformity in the working of prisons throughout the country. In addition to it, BPR&D has also placed this draft policy paper in the meeting of Advisory Committee on Prison Reforms held on 3rd November, 2006 for discussion to make this document more viable. Future of Indian Jail lies in the hand of economic reformers of India. Most Jails in India offer skill development, work, entrepreneurship and empowerment programmes to the inmates. Most of these initiatives are targeted at creating small manufacturing or agri-based programs with majority of produce for self consumption. Efforts are Jails

to

create

scalable

being

made

by

and sustainable business that can build long

term economic benefits to jail inmates and overall prison development. Various rehabilitation and reform studies and research is done on changing the behavior of the inmates and trying to reduce re-offences.

53

Tihar Jail has been considered as a pioneer in the economic rehabilitation program in India. It was around 12000 inmates. Considering the immense pressure on the exchequer to develop infrastructure, and wellbeing of the prisoners, there is a need to create sustainable organizational forms that can run cost-effective and efficient prison rehabilitation program. In line with Institute of Correctional Administration, Chandigarh’s report on National Policy on Prison in 2006, to make a prison administration run on economic criterion of making itself sustainable, efficient, cost-effective and dynamic, appropriate state-level apparatus is required. For the same organization of State Jail Industry board has been proposed. To ensure the sustained intervention, there is an emerging need for the states to uniformly develop and co-ordinate jail industries through the formation of a Jail Industry board (JIB). Box 1.3: Comparison between various economic rehabilitation models pursued

High

Co-operative Society Moderate

Non Profit

Risk

High

High

Low

Stakeholder interest

Private company

Inmates

NGO

Scalability

High

Limited

Limited

Moderate

High

Low

Low

Moderate

Low

High

High

High

Criteria

PPP

Profitability

Legal Challenges Incorporation Cost Benefit to Inmates

54

NGO

Prison has several purposes. Amongst these are separation from society and confinement for the safety of society, punishment for crime, correction and rehabilitation to the community. Prisons are not, primarily, concerned with the health of the prison population and, indeed, ‘The need for security and discipline can cut across the perception of individuals (prisoners) as patients’ (Her Majesty’s Inspector of Prisons (HMIP), 1996, p. 1). The prison service in the UK has traditionally established its own health care facilities for prisoners who become patients, with its own doctors and nurses employed by the prison service (HMIP, 1996). This has served to reinforce the image of prisoners who are patients as being separate, even in terms of health care, from the general population and it has also led to isolation of the professionals: doctors and nurses, working in the prison service. Consequently, they have been accorded as a lower status by colleagues. Box 1.4: Prison Reforms- A Summary A. Prisons are a State subject under List-II of the Seventh Schedule to

the

Constitution

of

India.

The

management

and

administration of Prisons falls exclusively in the domain of the State Governments, and is governed by the Prisons Act, 1894 and the Prison Manuals of the respective State Governments. Thus, States have the primary role, responsibility and authority to change the current prison laws, rules and regulations. B. The existing statutes which have a bearing on regulation and management of prisons in the country are: 1. The Indian Penal Code, 1860. 2. The Prisons Act, 1894. 3. The Prisoners Act, 1900. 55

4. The Identification of Prisoners Act, 1920. 5. Constitution of India, 1950 6. The Transfer of Prisoners Act, 1950. 7. The Representation of Peoples' Act, 1951. 8. The Prisoners (Attendance in Courts) Act, 1955. 9. The Probation of Offenders Act, 1958. 10. The Code of Criminal Procedure, 1973. 11. The Mental Health Act, 1987. 12. The Juvenile Justice (Care & Protection) Act, 2000. 13. The Repatriation of Prisoners Act, 2003. 14. Model Prison Manual (2003). C. Various Committees, Commissions and Groups have been constituted by the State Governments as well as the Government of India (GoI), from time to time, such as the All India

Prison

Reforms

Committee

(1980)

under

the

Chairmanship of Justice A.N. Mulla (Retd.), R.K. Kapoor Committee (1986) and Justice Krishna Iyer Committee (1987) to study and make suggestions for improving the prison conditions and administration, inter alia, with a view to making them more conducive to the reformation and rehabilitation of prisoners. These committees made a number of recommendations to improve the conditions of prisons, prisoners and prison personnel all over the country. In its judgments on various aspects of prison administration, the Supreme Court of India has laid down three broad principles 56

regarding imprisonment and custody. Firstly, a person in prison does not become a non-person; secondly, a person in prison is entitled to all human rights within the limitations of imprisonment; and, lastly there is no justification for aggravating the suffering already inherent in the process of incarceration. D. Central Assistance to State : Based on the recommendations of various Committees, Central assistance was provided to the States on a matching contribution basis to improve security in prisons, repair and renovation of old prisons, medical facilities, development of borstal schools, facilities to women offenders, vocational training, modernization of prison industries, training to prison personnel, and for the creation of high security enclosure. The total assistance provided to the State Governments from the year 1987 to 2002, was Rs. 125.24 crore. The Eleventh Finance Commission also granted an amount of Rs 10 crore to the Government of Arunachal Pradesh for the construction of jails.

1.15 PRISONS IN INDIA – A BRIEF SUMMARY The rate of imprisonment in our country was very low57, i.e. only 25 prisoners per one lakh of population, as we compare with Australia (981 prisoners), England (125 prisoners), USA (616 prisoners) and Russia (690 prisoners) per one lakh population. A large chunk of prison population is dominated by first offenders (around 90%) The rate of offenders and recidivists in prison population of Indian jails is (9:1) but in the United Kingdom, it is 12:1, which is quite revealing and alarming for world.

57 According to the United Nation’s Global Report on Crime and Justice in 1999

57

As of 2007, the prison population was 3,76,396, as against an official capacity of 277,304, (representing an occupancy rate of 135.7%) distributed across 1276 establishments throughout the country. The prison population has been steadily increasing during the last decade in our country. A majority of the prison population is male (nearly 96%) and approximately two-thirds are pre-trial detainees (undertrials).

***

58

Chapter - 2

HISTORICAL BACKGROUND

CHAPTER -2 HISTORICAL BACKGROUND 2.1

INTRODUCTION As we know the prison is defined as such a place in which persons

are kept in custody pending trial or in which they are confined as punishment after conviction. The word prison means different things for the different people. To the law be stable it is considered as a place where the criminals end up. To the criminal it could be an obscure hazard or an unavoidable indignity. For the social inadequate it is a shelter. To some isolated individuals it may be the only place where they can find some semblance of championship. It is the place of work for Prison officers. For the psychologist, it is a place of career in studying behaviour of the prisoners. But for thousands of the people, an experience which slows up time, which crows them together, sets them apart and changes the conditions of their lives.

2.2

HISTORY OF PRISON SYSTEM Prison system in India, is just one of a number of sanctions available

to the courts to deal with those who commit criminal offences. Imprisonment today has become the harshest sanction available but this has not always been the case. During early days punishment for criminal behavior tended to be public events which were designed to shame the person and deter others; these included the ducking stools, the pillories, whipping, branding and the stocks. At that time, the sentences for many other offences was death. Prison in India has tended to be a place where people were held before their 59

trial or while awaiting punishments. It was very rarely being used as a punishment in its own right. In history of Indian prison, then Men and women, boys and girls, debtors and murderers were all held together in local prisons. This Evidence suggests that “prisons in India, at ancient period were badly maintained and often controlled by negligent prison warders”. Many people had died of diseases like gaol fever, which was a form of typhus1. The most important innovation of this period was: to build the prototype house of correction, the London Bridewell2. Houses of correction were originally the part of the machinery of the Poor Law, was intended to instill habits of industry through prison labour. From the prisoners mostly held in them, were petty offenders, vagrants and the disorderly local poor. In India, by the end of the 17th century they were absorbed into the prison system under the control of the local Justices of the Peace. Although the 18 th century has been characterized as the era of the 'Bloody Code' there was growing opposition to the death penalty for all but the most serious crimes. Such punishments were the counter-productive, as jurors were refusing to find thieves guilty of offences which would lead to their execution. By the mid of 18th century imprisonment, with hard labor, was beginning to been seen as a suitable sanction for petty offenders. Transportation was a much-used method for disposing of convicted people for the prison in India. Convicts were shipped to the British colonies such as America (until the end of the Independence of America in 1776), Australia, and Van Diemen’s Land. Transportation was curtailed at the end of the 18th century. The two prominent alternatives were hard labor and for those who unable to do this the house of correction.

1 2

Causes and prevention of violence in prisons. In Sean O’Toole & Simon Eyland (Eds.), Corrections criminology (pp. 101-108) Hinkle, William G. A History of Bridewell Prison, 1553-1700. Lampeter, 2006

60

Prison hulks were shipped what were anchored in the Thames, and at Portsmouth and Plymouth. Those sent to them, were employed there in hard labour during the day and then loaded, onto the ship at night. The appalling conditions on the hulks especially the lacks of control and poor physical conditions, eventually led it to the end of this practice. But the use of the prison hulks in India did much to persuade public opinion that incarceration, with hard labour, was a viable penalty for crime. In the year of 1777, John Howard (namesake of the Howard League) condemned the prison system as disorganized, barbaric and filthy. He called for wideranging reforms including the installation of the paid staff, outside inspection, a proper diet and other necessities for prisoners. Jeremy Bentham, and other penal reformers at that time, believed that the prisoner should suffer a many of regimes, but that should not be detrimental to the prisoner's health. Penal reformers had also ensured there should be the separation of men and women and that sanitation to be improved as well. In the year of 1791 Bentham had designed the 'panopticon'. This prison design allowed a centrally placed observer to survey all the inmates in the prison, as prison wings radiated out from this central position. In the year of 1799 the Penitentiary Act specified that prisons should be built for one inmate per cell and operates on a silent system with continuous labor. The first half of the 19th century had represented a watershed in the history of the state punishment. The capital punishment is now regarded as an inappropriate sanction for many crimes in India. The shaming sanctions such as the stocks what were regarded as outdated. By the mid of the 19th century, imprisonment had replaced capital punishment for most serious offences - except for that of murder. Ideas related to the penal reform were becoming an increasingly popular thanks to the work of a few energetic reformers. Many of these ideas and thoughts were related to the rehabilitation for the offenders. Religious groups like the Quakers and the

61

Evangelicals were highly influential in promoting such ideas of reformation through personal redemption. The 19th century saw the initiation of the state prison in India. In the year of 1816, the first national penitentiary was completed at Millbank in London. It held around 860 prisoners in, kept in separate cells too, although association with other prisoners was allowed during the day time. Work in prison was mainly centered around simple tasks such as picking 'coir' (tarred rope) and weaving. In the year of 1842 Pentonville prison was built using the panopticon design; this prison is still used today. Pentonville was originally designed to hold around 520 prisoners, each held in a cell measuring of 13 feet long, 7 feet wide and 9 feet high. Pentonville was operating the separate system, which was basically solitary confinement. In the next 6 years, 54 new prisons were built using the same template. The prisons were brought under the control of the Prison Commission in 1877. For the first time all even local prisons also were controlled centrally. At this time in India, the prisons were seen primarily as the means to deter the offending and reoffending. This was the movement away from the reforming ideals of the past in India. The Prison Act in 1898 reasserted for the reformation for the main problem of prison regimes. This Act can be seen to set the penal-welfare context which underlies today’s prison policy. It led to a dilution of the separate system, the abolition of hard labor, and established the ideas that the prison labors should be more productive, not least for the prisoners, who should be able to earn their livelihood on release. The developments of the prison systems are continued today. At the end of the 19th century there was recognition that the young people in India should have separate prison establishments – thus the borstal system was introduced for the Prevention of Crime Act 1908. The English Prison and Borstal Systems: An Account of the Prison and Borstal by Borstal training has been involved in a regime that was based on the hard physical work,

62

technical and educational instruction and strong moral atmospheres. A young person in borstal: would work through the series of grades, based on privileges, until release. In the year of 1933, the first open prison was built at New Hall Camp near Wakefield. The theory behind the open prison is summed up in the words of one penal reformer, Sir Alex Paterson: "You cannot train a man for freedom under conditions of captivity". The Criminal Justice Acts in 1940 was abolished penal servitude, hard labour and flogging. This acts also presented the comprehensive systems for the punishment and treatment of offenders. Prison was still at the centre of the govt. system, but the institutions took many different forms such as detention centers and borstal institutions including as remand centers. In April 1993, the Prison Services became an Agency of the Indian government. This new status allows us for a greater autonomy in operational matters, while the government retains the overall policy direction for the prison system. The 1990s have also been seen that the introduction of prisons and prison system what are designed for, financed, built and run by private companies. Supporters of privatization argue that it will lead to cheaper, more innovative prisons, while organizations like the Howard League argue that private prisons are flawed both in principle and in practice. In India, the supremacy of imprisonments is as a way of dealing with offending behavior that shows no signs of abating. Further new prisons in India are being planned. These are like all new prisons would be the part of the PFI programmes and managed by the private sector. There are around 12 privately managed prisons in India; however two prisons which began life managed by the private sector have been brought back into the public management. Homel, R. & Thomson3 : There are no over-arching theories of prison violence, but there are several influential schools of thought. In the 3

Causes and prevention of violence in prisons in Sean O’Toole & Simon Eyland (Eds.), the Corrections criminology (pp. 101-108). Sydney:

63

prison sociology, two well-established but contrasting perspectives are the deprivation and importation models. The deprivation model holds, in brief, that the prison environment and loss of freedom causes a deep psychological trauma so that psychological self-preservation prisoners create a deviant prison subculture that promotes violence (Farrington & Nuttal, 1980; Sykes, 1958; Wortley, 2002). The importation model (Cao, Zhao & Vandine, 1997; Harer & Steffensmeier, 1996) emphasizes what prisoners should bring into the institution: their histories, personal attributes and social networks, including links to criminal groups. The empirical literature supports both these models but perhaps the most pronounced trend in recent literature is a growing recognition of the importance of very specific features of the social and physical environments of the prison and of the “minutiae of the average prison day” (Bottoms, 1999: 212)4. Even in studies that are primarily focused on other factors, the details of how a prison is organized in time and space, how individuals interact with and help shape a dynamic environment for the prisoners, and the role of specific situational factors in precipitating or regulating violence emerge as crucial. Thus we should add two newer but influential theoretical positions as the transactional model (Bottoms, 1999) and the situational model (Wortley, 2002)5 These, as it is suggested, are complementary not competing perspectives, that may help to make sense of what can be a bewildering variety of empirical. The theoretical models we have reviewed each by their own way, underline the critical importance of management practices for the control of violence. This emphasis is in accordance with the empirical literature. There is increasing evidence that poor prison management and control is the most significant factors in contributing to and (consistent with 4 5

Bottoms, Anthony E., William Hay, and J. Richard Sparks (1995). “Situational and Social Approaches to the Prevention of Disorder in Long-Term Prisons.” Wortley, R. (1996). “Guilt, Shame and Situational Crime Prevention.”

64

Wortley) even promoting the both individual and collective prison violence. An important study made by Reisig (1998) referred in American prison: imagining a different future by francis T.cullenc contrasted the control, responsibility and consensual models of prison management. According to the control model, rules should guide almost all areas of prisoners’ lives and these rules should be rigorously enforced to control prison behaviour. According to the responsibility model, prisoners should be provided with a high degree of responsibility over the order of the prison and its management should exercise the minimum required control over such order. The consensual model is the integration of the control and responsibility models. The findings indicated that in prisons adopting the findings. Box 2.1: Brief of History of Prison System  During early days punishment for criminal behavior tended to be public events which were designed to shame the person and deter others.  During 18 th century imprisonment, with hard labour, was beginning to been seen as a suitable sanction for petty offenders  The first half of the 19th century represented a watershed in the history of state punishment. Capital punishment was now regarded as an inappropriate sanction for many crimes.  The 19th century saw the birth of the state prison with introduction of many models

2.3

EVOLUTION OF PRISON SYSTEM IN INDIA The evolution of prison system in India is very dramatic. One may

say that Indian prison system is one of the very complex systems of the world to understand. In general three phases may be distinguished in the history of prisons. During the first, which lasted until the middle of the 65

16th century, penal institutions were chiefly dungeons of detention rooms in secure parts of castles or city, in which prisoners awaiting trial or execution of sentences were

kept. The second phase was one of

experimentation with imprisonment a form of punishment for certain types of offenders, mostly, Juveniles. The third phase was the universal adaptation of imprisonment as a substitute for all of the capital punishments. Prisons in the shape of dungeons, was existed from the time of immemorial in all the countries of the world. In his book, “The Future of imprisonment’ NORVAL MORRIS.6 Refers to punitive imprisonment used extensively in Rome, Egypt, China, India, Assyria and Babylon and firmly established in Renaissance Europe. But prison sentence, as a specific punishment, is relatively recent origin. The prison as we know, it came into the existence largely as an interim house of detention of an offender pending trial and punishment. 2.3.1 Ancient Indian Prison System 2.3.1.1 Concept of Dharma and Danda In India, the early prisons were only places of detention where an offender was detained until trial and judgment and the execution of the latter. The first phase of ancient civilization in India when Dharma was Supreme, the offender was shown maximum tolerance, but that was gradually ousted by political party of the King in the middle ages (Chowdhary, 2002:13). The ancient period speaks of four methods of punishment (Danda) namely, by gentle admonition, by severe reproof, by fine, and by corporal punishments and declared that these punishments may be inflicted separately or together according to the nature of the offence. The structure of the 6

society in ancient India

was

founded on

NORVAL MORRIS.* Chicago: The University of Chicago Press 1974..

66

the

principles enunciated by

Manu

and

explained by

Yagnavalkya,

Kautilya and others. Among various types of corporal punishments – branding, hanging, mutilation and death, the imprisonment was the most mild kind of penalty known prominently in ancient Indian penology. The main aim of imprisonment was to keep away the wrong doers, so that they might not defile the members of social order. These prisons’ conditions were totally dark dens, cool and damp, unlighted. There was not proper arrangement for the sanitation and no means of facility for human dwelling. Fine, imprisonment, banishment, mutilation and death sentence were the punishments in vogue. In prison, fine was the most common and condemned person who could not pay his bill to bondage until it was paid by his labour in the prison. At the ancient time our society were divided into four categories Brahmin, Kshatriya, Vaishya and Sudra. The fines for the murder of a Brahmin were 1000 cows, for killing a Kshatriya 500 cows, for a Vaishya 100 cows and for a Sudra or women of any caste. 7 Though the Indian law gives

a little description of jail life, even then historical

account gave a clear picture after the analysis of the available data. A few Smiriti writers had supplied some information concerning with Prison in India. Ever since time immemorial, India always had a very well defined prison

system.

Ages

vibhaktistripurushasthaanam

back

Kautilya's apasaraatah

Arthshastra

held:

sugupsakakshyam

bandhanaagaaram kuarayet, which means that a jail has to be constructed in the capital in order to provide separate accommodation for men and women and the same must be well guarded. Segregation of prisoners on the basis of sex thus was always kept in mind even at that time, which reflects the systematic and well deliberated upon treatment of criminal at the hands of State, Kautilyn’s Arthshastra made a reference to the employment of prisoners

observing,

oornaawalkkaarpaasatoolshanakshaumaani

chdandapratikaarineebhih kartayet, meaning thereby that the Superintendent 7 , I. J. Singh,’Indian prison’, p.19

67

of Weaving shall employ besides others, women who are compelled to work in default of payment of fines, for cutting wool, fiber, hemp etc. Another similar reference in Kautilya's Arthshastra is, bahuhalaparikrishtaayaam swabhoomau daaskarmakardandapratikartribhirvapayet, which means that the Superintendent of Agriculture shall employ slaves, labourers and prisoners for agriculture purposes like sowing of seeds on Slate land, Kautilya in his Arthashastra contemplated that rulers in ancient India should frequently use of fortresses to lodge their prisoners. In order to prevent the malaise of monotony and isolation in jail life, Kautilya advocated construction of prisons by the roadside as far as possible. At the same time, spirituality being the dominant rule, in ancient India, great emphasis was laid on modeling the prisons in a manner so as to provide opportunity for atonement and remonstrance to the prisoners. In this regard solitary confinement was strongly advocated for, so as to afford the convict an opportunity introspection. Kautilya also advocated for release of some prisoners every fifth day, who would pay some money as floe or accept some other form of punishment or promise to work for social upliftment. The object of punishment during the Hindu period in India was mainly the criminals. Besides imprisonment, which was the mildest form recognized modes of punishment during that era were death sentence, mutilation whipping, flogging and branding. Ancient Hindu Penology formulated in the ancient scriptures, advocated for putting the evil doer in prison also to segregate him from rest of the society. On certain auspicious days, like festivals or birthdays of the King, old and infirm prisoners, orphans, mid prisoners promising to engage themselves in social upliftment were released premature. At the same time, Kautilya prescribed death sentence for a prisoner who escaped from prison by jail breaking. Severe onus was put on the jail authorities to ensure strict 68

discipline inside the jail Kautilya elaborated the duties of a jailor and observed that the jailor must be all time vigilant and must ensure no act in jail going undetected. In the early Asoka period, jails remained unreformed. However, Asoka following Buddhism, jail reforms were witnessed in his rule. Yajnavalkya8 had narrated that the person who was instrumental for the escape out of imprisonment, the prisoner had undergone capital punishment. Vishnu suggested the penalty of imprisonment to a person who hurt the eyes of a man. Kautilya has described the place of prison as the location as well as the occasions when the prisoners can be released. The officers of the jail were known as Bhandanagaradhyaksa and Karka. The former was a superintendent and the latter was one of his assistants. The jail department was under the amenability of Sannidhata. There are references to prisoners in Ashokan inscriptions especially the fifth Rock Edict. Kautilya has further described the duties of the jailors, who always keep eyes on the movements of the prisoners and the proper functioning of the prisoners in the prisons. Prof. Ramachandra Dikhitar9 has suggested that Ashoka was familiar with the Arthashastra, for Ashoka speaks of as much as twenty five jail deliveries effected by him in the course of 26 years since his appointment to the throne. In the post Ashokan age the jatakas gives a picture of the prisoners being released at the time of war. From Harsha Charitha, it appears that the condition of the prisoners was far from satisfactory. According to Hiuen–Tsang prisoners generally received harsh treatment. At the time of Royal coronation prisoners were released. From the above discussion it is quite evident that regular prison system as such was not in existence in ancient India an imprisonment as a mode of punishment was not a regular feature when compared to the modern system in India. 8 9

Yajnavalkya of Videha was a sage and philosopher of Vedic India Dikshitar, V. R. Ramachandra (1932 “Mauryan Polity”,

69

2.3.2 Mediaeval India The legal system in the Mediaeval India resembled that of Ancient India and

the contemporary Muslim rulers seldom, if at all,

attempted to tamper with the day to day administration of Justice. During the Mughal age sources of law and its character was essentially Quranic and remained same. Crimes were divided into three groups, namely, a) Offences against God, b) Offences against State, c) Offences against private persons. Punishment for these offences were put in four classes, they were, 1) Hadd 2) tazir 3) Quisas 4) Tasir. Imprisonment was not resorted as a form of punishments in the case of ordinary criminals. It was used mostly as the means of detention only at the ancient time. There were many fortress situated in different part of our country, in which the criminals were detained pending trail and judgment.10 The only redeeming feature of the prisoners was that: the orders for their release were issued on special occasions. Some rooms in forts popularly known as the Bhandhi-khanas or Adab–Khanas were reserved for prisoners, and culprits who had committed serious crimes were sent to such from different places. During the Mughal period in India the punishment was given mostly as a retribution or deterrence. As in ancient India, during this period also, imprisonment as a method of punishment was not a normal 10 JadunathSarkar, ‘Mughal Administration’, Quoted in V. Bhusan, Prison Administration In India

70

feature of the legal system. Punishments were meted out side the prison and very few persons were sent to prison. The principal forms of punishment were capital punishment, mutilation, flogging, banishment fines and imprisonment.11 The chief feature of imprisonment of the period was that no period was fixed for it. The Quazi and the magistrate had a right to send any one to prison for the offence of crime for which the punishment could be awarded and the accused had to show signs of repentance to secure freedom12: There were three noble prisons or castles at Gwalior, Ranthambore and Rohtas. Fort of Ranthambore was used as a temporary prison for criminals condemned to death punishment. After two months of their arrival, they would be pushed down the hill to their death. Rohtas prison was used to keep those nobles who were condemned to perpetual imprisonment from where very few returned home.13 The historical accounts recorded by several travellers during the period clearly show the appalling conditions existing in the prisons of the Mughal period Monserrate reported that the ordinary criminals were kept under guard in irons, but not in prison. Princes sentenced to imprisonment were sent to the jail at Gwalior where they rot away in chains and filth14: Nicolan Manucci records as, "when the prisoners were taken to the prison, they were usually loaded with iron fetters on their feet and shackles on their necks". ibid For temporary confinement, there were Chabutra-l-kotwali, police lockups. There are frequent references in the news letters of Aurangzeb about the confinement of thieves, robbers and even guilty officers in these lockups.15 According to Muslim law, the Qazis or magistrates were expected to visit prisons and inquire into the conditions there and release those who showed sign of repentance. Usually, they 11 12 13 14 15

Dr.Satya Prakash Sangar, Administration of Justice in Mughal India, R.N.Datir, Prison as a social system Bombay: Popular Prakashan, 1978 at 42-43 Baharistan -I- Ghaybi I, pp 89-91 cited by S.P.Sangar R.N.Datir, Prison as a social system Bombay: Popular Prakashan, 1978 at 42-43 ibid

71

neglected their duty. The only redeeming feature for the prisoners was that orders for their release were issued on special occasions. Those occasions were birth of a crown prince, recovery of the Emperor or a royal prince from long illness, or visit of the Emperor to some of the prison fortresses during royal tours. On the birth of prince Salim, Akbar ordered that all the prisoners in the imperial dominions who were shut up in the fortresses on 'account of great accounts' were to be released.16 Soon after his accession, Jahangir ordered the release of all those persons who had been imprisoned for a long time in forts.17 In 1618, he inspected the condition of the prisoners in that Fort. With the exception of those convicted for murder or other dangerouscrimes, he freed them all and to each one in accordance with his circumstances gave them expenses and dress of honour.18 There were standing instructions during Shahajahan's reign that whenever the Emperor passed by a fort, the cases of the prisoners there should be brought to his notice.19 In the beginning of his reign he visited the Fort of Gwalior, and gave orders for the release of all prisoners excepting those charged with very serious crimes. In the eleventh year of his reign, he again happened to pass by the fort. Ibid He inspected the cases of the prisoners there and found only 11 with sentences of long duration and set them free. On the occasion of the celebration of recovery from illness of the favourite princess Begam Sahib, Shah Jahan released prisoners in 1638. In the 46th year of his reign in 1703, Aurangzeb ordered Mohammad Mas'ud that all the prisoners confined should be set free with the exception of a Faqir.20 Thus during the Mughal period prisoners were released on special occasions. During the Maratha period it was also considered, the imprisonments as the form of punishment was not very common. Punishments like 16 17 18 19 20

Jaipur Akhbarat, 49th year, see S.P.Sangar Akbar Nama, Bev.ll, pp 504-05; Farishsta, II, P 350: Badawni, Test II at 120-24, Ibid Ibid Ibid

72

Mutilation, fine, death were common. The form of punishment, as during the ancient and Mughal period, continued in Maratha period also. The main features of the prison system in India before the British age and British period may be summarized as below: a) There were not any prisons in Modern sense at that time. b) There was not any description of the internal administration of prisons. c) No separate prison services were present and courts were not feeding centers for prisons. d) There were no any rules for maintenance of the prisons. 2.3.3 Modern India The prison system as it operates these days in our country is a legacy of the British rule. It was an ingenious creation of the colonial rulers over our home-grown penal system with the prime motive of making imprisonment “a terror to wrong doers”. Nevertheless it was a great leap in the history of our penal reforms as it facilitated the abolition of our old fashioned prison system of barbarous punishments and substitution of imprisonments as the chief form of punishment for crimes in our country. In 1784 the British Parliament empowered the East India Company to rule India and since then some effective attempts were made for introducing the reforms in the administration of Law and Justice. At that time there were only 143 civil jails, 75 criminal jails and 68 mixed jails in our country. In fact these jails were an extension Mughal rule which were managed by the personnel of the East India Company in their efforts to maintain peace and establish their trade. 2.3.3.1 Prison System in British Era The British colonial rule in India marked the beginning of major penal reforms in India. The British authorities strenuously tried to improve

73

the conditions of Indian prisons and prisoners. Radical changes were introduced in the then existing prison system keeping in system keeping in view the sentiments of the local people. At the advent of British, initially some changes were introduced in the overall legal system. The Regulating Act of 1773 established the Supreme Court at Calcutta to exercise all civil and criminal jurisdictions to come in tune with the English jurisprudence. The Indian Penal Code and the Criminal Procedure Code were brought into force in the years 1859 and 1860 respectively, laying down explicit definitions of different crimes coupled with the specific punishments prescribed and also the specific procedures to be adopted by the criminal justice dispensation machinery. Thus, in the year I 860, imprisonment came to be applied uniformly across India as a recognized mode of punishment. Jail, thus came to be recognized as the smallest unit of prison system, where the criminals condemned by the courts would be kept over a period. Prior to recognition of imprisonment as a mode of punishment, the system of punishment hardly entailed any financial burden on the State. As such, during initial period, Directors of East India Company were quite reluctant to spend money on upkeep of jails. Consequently, living conditions in jails were pathetic, though the jails were built on British model. The Prison Enquiry Committee, with Lord Macaulay as its member, appointed by the Government of India in the year 1836 submitted its report in the year 1838, thereby criticizing the corruption and the laxity amongst the subordinate establishment. Steps were also recommended to eradicate corruption among the prison staff. It mainly recommended that the Central Jails be built to accommodate not more than 1000 prisoners each; that sufficient buildings be provided in each jail to house the prisoners comfortably; and that an Inspector General, Prisons be appointed in each province. It also recommended abolition of the practice of prisoners being

74

made to work on road. First Central Prison was built in Agra in the year 1846. Thence, the inspector General of Prisons for the first time came to be appointed in the year 1855, who was the Chief Administrator of Prisons in India, with his main function to maintain discipline amongst prisoners and prison authorities. As a consequence of this appointment, the jailor and other petty officials of prisons could no longer abuse their power and authority. The second Jail Reforms Committee in the year 1864 expressed concern over the death of several prisoners due to illness and disease on account of insanitary conditions of Indian prisons. The committee found as many as 46, 309 deaths in preceding .10 years inside the prisons and opined that the high mortality might have been due to overcrowding, poor ventilation, had drainage, insufficient clothing, and inefficient medical facilities, it emphasized the need for proper food, clothing and appropriate medical treatment for the prisoners. Following the recommendations of this committee, it was directed that Superintendents of jails in all the provinces should be Civil Surgeons. Thereafter, certain recommendations were made by the third Jail Reforms Committee in the year 1877 regarding the jail administration generally. That followed the fourth Jail Reforms Committee of 1888-89, which mainly recommended changes in prison rules and also advocated for classification and segregation of prisoners into casual and habitual; most of its recommendations were incorporated in the jail manuals of various provinces. Thereafter came the All India Committee of 1892, which resurveyed the whole concept of jail administration and laid down detailed rules, and that formed precursor to the Prisons Act, I 894 applicable to the jails throughout the country as uniform law. 75

The Prisons Act of 1894, empowered the then existing provinces to lay down their own prison rules for the overall prison administration. The Act provided for classification of prisoners and abolished the sentence of whipping. The medical facilities which had already been extended to prisoners in the year 1866 were further improved and better amenities were provided to women inmates to protect them against contagious diseases. The Act tried to secure uniformity in treatment of the prisoners. Despite these improvements, the prison policy as reflected through the Act, by and large, remained deterrent. The year 1897 saw a milestone in the field of prison reforms in the enactment of the Reformative Schools Act that recommended the criminals below the age of 15 years to be sent to the Reformative Schools instead of prisons. That followed the Prisoners Act of 1900. From the year 1907 onwards further rigorous efforts were made to improve the condition of juvenile and young offenders, and they were now kept segregated from hardened adult offenders so as to prevent their contamination. But as a matter of overall prison system, till the year 1919, main philosophy remained deterrence, with not much emphasis on reformation. The system failed to notice sight of the salutary impacts that could be gained by individualization of criminals. During that era, the freedom of India movement had a strong impact on prison conditions in the country. The prison administrators, who were mostly British officials, classified the political prisoners mainly into violent and nonviolent categories. Summary trial political prisoners being mainly educated middle class or even the financially affluent class of Indian society, the British prison authorities had to frame elaborate and meticulous jail regulations for the freedom fighters with minutest details about prisoners’ food, medical facilities, visitors and parole etc. With the 76

additional burden on prison system on account of deluge of political prisoners there was extra burden on traditional jail budgets, and consequently, the non political prisoner class forming conventional part of the system got ignored and the condition of prisons deteriorated severely. In order to bring improvements in the overall prison system, in 191920, last pre independence Jail Reforms Committee, chaired by Sir Alexander Cardew (an Indian civil servant of British origin who served as Inspector General, Prisons during 1892-1899 and the acting Governor of Madras from 29 March 1919 to 10 April 1919) was constituted. Cardew Committee inspected prisons in not only India, hut also in Japan, Burma, Philippines, Hong Kong, UK and USA and concluded that prisons should have not just deterring effect but also reforming effect on criminals. The Committee observed that, the aim of the prison administration is the prevention of further crime and the restoration of the criminal to the society as a reformed character. The Committee emphasized that administration of jail system is the key to prevention of further crime in a society and reformation of criminals. The report dealt significantly with the prison staff, separation and segregation of criminals, prison labour, discipline, reforms, hygiene, medicare, and after cate programme for the rehabilitation of released prisoners. It further recommended that the maximum intake capacity of each jail should be fixed, depending on its shape and size. Solitary confinement as a method of punishment also was criticized and taking a lead in this direction, the State of Bombay abolished solitary cells from its prisons, where after other provinces followed the suit and reformed their prisons. On the introduction of Montagu-Chelmsford Reforms Committee report, jail services became the State subject and the provinces exhibited great enthusiasm in jail reforms, by appointing a series of Jail Reforms Committees. 77

2.3.4 Prison System Post Independence In the year 1949, Pakwasa Committee recommended the system of utilizing prisoners as labour for road work without any intensive supervision on them. It was thereafter that the system of payment of wages to the prisoners for their labour was introduced. Laws were also introduced in jails whereunder the inmates who behaved well during their term of imprisonment, were rewarded by suitable reduction in the period of their sentence. The ultimate object of these reforms was to protect the society from criminals, to reform the offenders, to deter them and to extract retribution for criminal acts to the satisfaction of the society. The Constitution of India enlisted ‘Prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with other States for the use of prisons and other institutions’ in the State list of the Seventh Schedule. Consequently, the Union Government ceased to have any responsibility of modernizing the prisons and their administrative structures across the States. In the year 1951, at request of the Government of India, under the Technical Assistance Programme, the United Nations sent Dr W C Reckless, a technical expert on Crime Prevention and Treatment of Offenders, for his recommendations on prison reforms ii India. Dr Reckless advocated for the development of the whole time probation and after care services, the establishment of new jails with specialized functions, legal substitutes for short term imprisonment sentences, reduction in the number of undertrial prisoners and revision of Jail Manuals. Following major policy guidelines regarding reformation and rehabilitation of prisoners were deliberated upon and unanimously accepted in the Government:

78

1.

That the correctional services should form an integral part of the Home Department of each State and a Central Bureau of Correctional Services should he established at the Centre;

2.

That the reformative methods of probation and parole should be used to reduce the population burden on prisons;

3.

That the aftercare units should be set up in each State;

4.

That solitary confinement as a mode of punishment should be abolished;

5.

That classification of prisoners for the purposes of their treatment was necessary; and

6.

That State Jail Manuals should be revised periodically.

On suggestions or Dr Reckless, an All India Conference of Inspector Generals of Prisons was held in Bombay in 1952, on whose recommendations a Committee was constituted to prepare Draft All India Jail Manual in 1957 and Central Bureau of Correctional Services was created in 1961. Establishment or the Central Bureau of Correctional Services, renamed in the year 1975 as National Institute of Social Defence was a very significant step as this institute undertook research, training and documentation etc social defence and rendered advice to the States on these issues. In the year 1972, Government of India constituted a Working Group on Prisons, which submitted its report in 1973, thereby recommending establishment of research unit at the headquarters of Inspector General of Prisons in each State, mid setting up of training institutes in each State. The

79

most remarkable recommendation of’ this Group was the inclusion of prison reforms in the Five Year Plan, so that explicit budgetary allocations are attached with this subject, in order to make the prison reform efforts better organized and institutionalized. Then, in the year 1979 also a Conference of Chief Secretaries made significant recommendations for reduction of jail population including effective system of review of undertrial prisoners, appointment of part time or full time law officers in jail to enable the prisoners contest the trials, amendment of law pertaining to transfer of prisoners, improvement in the system of inspection and supervision in jails to reduce corruption, indiscipline and malpractices, and setting up of National and State Boards of Visitors with appropriate amendments in the Jail Manuals. In the month of April, 1980, the Government of India appointed an All India Jail Reforms Committee chaired by the Hon’ble Mr Justice A N Mulla (retd), which gave its first report on the Central Jail, Tihar, Delhi in December, 1980 and its final Report in the month of March, 1983. The Committee suggested setting up of a National Prison Commission as a continuing body in order to bring about modernization of prisons in India. The Committee also suggested that the dichotomy of prison administration at Union and State level should he done away with. The Committee recommended segregation of mentally disturbed prisoners and their placement in mental asylums and also recommended total ban on the atrocious practice of clubbing together juvenile offenders with the hardened criminals in prisons owing to the atrocities and personal assaults on juvenile prisoners, which also came to the notice of the authorities in the notorious Tihar Jail Inmate cases and Agra Protective Home case . Consequently, a comprehensive legislation was enacted for the security and protective care of delinquent juveniles. Yet another recommendation of the Mulla Committee was classification of prisoners on scientific and rational basis by 80

adopting the foreign procedure of appointing ombudsmen to decide the prisoner’s grievances. Some of the 659 significant recommendations of the Mulla Committee were: 1.

Formulation of the Directive Principle of National Policy on Prisons and insertion thereof in Part IV of the Indian Constitution;

2.

Enlisting the subject of Prisons and allied services in the Concurrent List of the Seventh Schedule to the Indian Constitution;

3.

Improvement as regards arrangements for food, clothing sanitation, ventilation etc. for the prisoners:

4.

Proper training of prison staff and its organization into different cadres;

5.

Constitution of an All India Service called the Indian Prisons & Correctional Service for recruitment of prison officials;

6.

Constitution of aftercare, rehabilitation and probation as an integral pan of prison service;

7.

Development of scheme for prison visits by the media and public as a part of open rehabilitation process;

8.

Reduction in lodging of undertrials in jail by speedy trials and liberalization of bail provisions;

9.

Segregation of undertrials from the convicts;

10.

Adequate budgetary provisions for prison reforms.

81

In the month of May, 1956, a National Expert Committee on Women Prisoners, chaired by Hon’ble Mr Justice V R Krishna lyer was constituted, which submitted its report 1 June 1987, thereby recommending induction of more women in the police force with a view to deal with female and juvenile delinquents. The expert committee opined that women could be employed in non combative roles that require restraint, patience and endurance and they should be specially trained to deal with agitations and mob upsurges in a humane and sensitive manner and acquire mastery over tactics of unnamed combat. The Committee mainly recommended for: 1.

Provision of national policy for women prisoners in India;

2.

Enactment of new rules and regulations qua punishment and conduct of women prisoners;

3.

Provision of Free Legal Aid to women prisoners;

4.

Construction of separate prison for women; and

5.

Provision for proper care of the child born to a woman prisoner in jail as regards medical help and diet,

Subsequently, in the year 1996, the Hon’ble Supreme Court of India in the case titled Ramanmurthv v. State of Karnataka

21

dealt with the

various aspects of prison system and recapitulated in the concluding part the various directions as under: 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. (Para 20A).

21 JT 2002 (8) SC 314

82

2.

To apply mind to the suggestions of the Mulla Committee as contained in Chapter 20 of Volume I of its Report relating to streamlining the emission system and premature release (parole), and then to do the needful, (Para 23).

3.

To consider the question of entrusting the duty of producing UTPs on remand dates to the prison staff. (Para 27).

4.

To deliberate about enacting of new Prison Act to replace century old Indian Prisons Act, 1894. (Para 31). We understand that the National Human Rights Commission has prepared an outline of an All-India statute, which may replace the old act; and some discussions at a national level conference also took place in 995. We are of the view that all the States must try to amend their own enactments, if any, in harmony with the all India thinking in this regard.

5.

To examine the question of framing of a model new All India Jail Manual as indicated in para 31.

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. (Paras 35 and 36).

7.

To ponder about the need of complaint box in all the jails. (Para 37).

8.

To

think

about

introduction

of

liberalisation

of

communication facilities. (Para 40), 9.

To take needful steps for streamlining of jail visits as indicated in para 42. 83

10.

To ruminate on the question of introduction of open air prisons at least in the District Headquarters of the country. (Para 48).

In terms with the said judicial directions, a committee was set up in the Bureau of Police Research and Development (BPR&D), which drafted a Jail Manual and the same was accepted by the Central government and circulated to State governments in late December 2003. In the year 1999, a draft Model Prisons Management Bill, called the Prison Administration and Treatment of Prisoners Bill, 1998 was circulated to replace the Prisons Act, 1894 by the Government of India to the respective states but this bill is yet to be finalized. In the year 2000, the Ministry of Home Affairs, Government of India, appointed a Committee for the Formulation of a Model Prison Manual which would be a pragmatic prison manual, in order to improve the Indian prison management and administration. Over a series of reports submitted by various committees, coupled with various judicial pronouncements on the subject of jail reforms there has been a progressive expansion of the jurisprudence of prisoners’ rights in India. Past few decades have witnessed several significant changes in the prison system across India, though a lot more development is needed. The modern Indian prison is an institution for the treatment and reformation of criminals. A classification of prisoners has been worked out to suit the new treatment methods; prisoners now avail the facilities such as, furlough, medical aid, educational or occupational training etc. Open air prisons and community service as an alternative mode of punishment are the latest subjects being worked upon. The conservative and outdated ways of handling criminals are now gradually sought to be substituted by liberal treatment methods. 84

Despite all the reformative measures being tried, the general condition of Indian prisons is still far from satisfactory. The social contempt for prison life keeps all sections of society uninformed, if not ill informed, about life inside the prison. The media rarely highlights the prison life; that too happens only when some high profile person is involved and even in such cases, prison life is projected positively or negatively, keeping in mind the criminal concerned and preconceived notions of the particular media, if not a sustained paid campaign for or against the criminal. Public opinion – uninformed and ill informed, seems least concerned about even humanizing, what to say of modernizing the prisons. Unfortunately, most of the laudable work in India on this subject has remained a matter of mere academic talk, with least amelioration of the prisoner, for whose basic rights the system has been coming up with newer and newer scientific recommendations and even judicial directions. Prisoner in India till date continues to be denuded of not just his human rights, but even his basic right to be human. 2.4

THE MULLA COMMITTEE In the year of 1980 the Government of India set-up a Committee on

Jail Reform under the chairmanship of Justice A. N. Mulla. The basic objectives of the Committee were to review the laws, rules and regulations keeping in view the overall objective of the protecting society and rehabilitating offenders in India. The Mulla Committee submitted its report in year1983.the opinion of the committee was that prison conditions in India is critical and criticized by every section like media press etc. committee also depicted harmful effect of prison culture on offenders of non serious crime22.

22 The report of the All India Committee on Jail Reforms (1980-83) chaired by Mr. Justice A N Mulla,

85

2.5

THE KRISHNA IYER COMMITTEE In the year of 1987 the Government of India had appointed the

Justice Krishna Iyer Committee to undertake a study on the situation of women prisoners in India. It has recommended the inductions of more women in the police force in view of their special role in tackling women and child offenders.

***

86

Chapter - 3 NATIONAL AND INTERNATIONAL PROVISIONS REGARDING PRISON SYSTEM AND INMATES

CHAPTER -3 NATIONAL AND INTERNATIONAL PROVISIONS REGARDING PRISON SYSTEM AND INMATES 3.1

GENERAL Though the prison has been a very sensitive issue in all the nations

of the world but the systems and treatment varies from nation to nation .governments along with the non -government organisations, institutions are trying to improve the conditions of inmates. Various attempts have been made to protect the rights of the prisoner through constitutional and other statutory provision at both national and international level. 3.2

NATIONAL SCENERIO

3.2.1 Constitutional Safeguards- Prisoners Rights The fundamental rights guaranteed under the Constitution are not absolute and many restrictions have been imposed on their enjoyment. Right to freedom of the person is one of the most important rights among the fundamental rights. When a person is convicted or put in the prison his status is different from that of an ordinary person. A prisoner cannot claim all the fundamental rights that are available for an ordinary person. However, certain rights which have been enumerated in Part III of the Constitution are available to the prisoners also because a prisoner remains a "person" inside the prison. The Supreme Court of India and various High Courts in India have discussed various decisions The Preamble of the Constitution of India declares that "we the people of India have solemnly resolved to constitute India into sovereign socialist, secular, democratic republic and to secure all its citizens" 87

 Justice -social economic and political;  Liberty -thought and expression, belief and faith; Equality-of status and opportunity and to promote among them all;  Fraternity, assuring the dignity of individuals and unity and integrity of the nation. It means that even the constitution from its inception has kept individuals in mind before its promulgation as the constitution is made to defend and protect its people and to establish peace and harmony in the society. It aims to make the country safe to live in by the citizens, the way Universal Declaration of Human Rights is preaching. Following rights are entitled to following rights3.2.1.1 Right to Equality: Article 14 “The state shall not deny to any person equality before law or the equal protection of laws within the territory of India” This is One of the important provisions of the Indian Constitution which is generally applied by the courts is article 14 in which the principle of equality is embodied. The rule that "like should be treated alike" and the concept of reasonable classification as contained in the article 14 has been a very useful guide for the courts to determine the category of prisoners and their basis of classification in different categories. 3.2.1.2 Limitation On Right To Freedom: Article 19 Article 19 of the Constitution guarantees six freedoms to the citizens of India. Among these certain freedoms like ‘freedom of movement‘, ‘freedom to reside and to settle‘and freedom of profession, occupation, trade or business" cannot be enjoyed by the prisoners because of the very nature of these freedoms and due to the condition of incarceration. But other freedoms like "freedom of speech and expression", "freedom to 88

become member of an association" etc. can be enjoyed by prisoner even behind the bars and his imprisonment or sentence has nothing to do with these freedoms. But these will be subjected to the limitations of prison laws. 3.2.1.3 Protection Against Conviction of Offences: Article 20(1) According to this provision “no person shall be convicted of any offence except for the violation of law in force at the time of the commission of the act charged as an offence, nor be subject to penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence” It restricts the power of legislature to implement any criminal law retrospectively, it means if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission.1 3.2.1.4 Protection Against Double Jeopardy: Article 20(2) This provision says that “no one shall be prosecuted and punished for the same offence more than once”. This incorporates the principle that No one should be put twice in peril for the same offence. If a person is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of his former acquittal or conviction. The requirement of this article is that proceeding must take before a “court” or judicial tribunal.2 3.2.1.5 Prohibition Against Self Incrimination: Article 20(3) It provides that “No person accused of any offence shall be compelled to be a witness against himself.”

1 2

Chief inspector of mines vs K.c Thapper AIR1961 SC 883 Maqbool hussain vs state of Bombay AIR1953SC325

89

General rule in criminal law is that accused must be presumed to be innocent unless contrary is proved. This constitutional safeguard incorporates this rule which protects self incrimination of any accused. the protection is available in case of compulsion and not in the case where accused himself wave his privilege by entering into the witness box or when he voluntarily gives evidence on request .In case Nandini Satpathy Vs P.L Dani3 the supreme court has widened the scope of this clause and held that compelled testimony is not only limited to physical torture but also extends to techniques of psychological interrogations which causes mental torture. 3.2.1.6 Scope of Right to Life and Personal Liberty : Article 21 “No person shall be deprived of his life or personal liberty except according to procedure established by law”. There is no guarantee of prisoner's right as such in the Constitution of India. The right to personal liberty has now been given a very wide interpretation by the Supreme Court. This right is available not only for the free people but even to those behind bars. The right to speedy trial, free legal aids, right against torture, and right against inhuman and degrading treatment accompany a person into the prison also. Article 21 of the Indian Constitution has been a major centre of litigation so far as the prisoners rights are concerned. It embodies the principle of liberty. This provision has been used by the Supreme Court of India to protect certain important rights of the prisoners. After Maneka Gandhi case, this article has been used against the arbitrary actions of the executive especially the prison authorities. After that decision it has been established that there must be a fair and reasonable procedure for the deprivation of the life and the personal liberty of the individuals.

3

AIR1977SC1025

90

The struggles for freedom in India have played a crucial role in initiating the process of identifying certain rights for the prisoners. Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he/she is a national or foreigner. The Supreme Court of India, by interpreting Article 21 of the Constitution, has developed the human rights theology for the preservation and protection of prisoners rights to maintain human dignity. Although it has clearly been mentioned that the deprivation of Article 21 is justifiable according to procedure established by law, this procedure cannot be arbitrary, unfair or unreasonable. In a celebrity case (Maneka Gandhi Vs. Union of India., 1978), the Apex Court opened up a new dimension and lay down that the procedure cannot be arbitrary, unfair or unreasonable. Article 21 imposed that the restriction upon the state where it is prescribed the procedures for depriving a person of his life or personal liberty. This was further upheld (Francis Coralie Mullin v. The Administrator, 1981) “Article 21 requires that no one shall be deprived of his life or personal liberty except the procedure established by the law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful”. 3.2.1.7 Scope of Right to Education for Prisnors According to various international conventions and due to reformative approach in India the trend is changing and now a detained and imprisoned person shall also have right to get the reasonable education which can be availed from public sources within the limitations of the state, subject to the maintenance of security and public order. Provision must be made for education facility of prisoner mainly woman and youth offenders so that they can improve their personality behind the bars.

91

State must setup new educational institution along with the faculty so that when prisoner are released from prison they can pursue their further education. The courts must take watch of this matter that fundamental right to education shall not be defeated by the prison administration of state. The education of young prisoner should be made compulsory. 3.2.1.8 Rights of Person Under Arrest and Detention: Article 22(1) Article 22 (1) of the Constitution directs that no person who is arrested shall be denied the right to consult and to be defended by the legal practitioner of his choice as well. This legal right is also available in the code of the criminal procedure under section 304. The court through various judgments has also held that from the time of arrest, this right accrues to the arrested person and he has the right of choice of a lawyer. The accused may refuse to have a lawyer but the court has to provide an Amicus Curie to defend him. When an accused is undefended it is the duty of the court to appoint a counsel on Government expenses for his defence. In a series of cases the Supreme Court of India considered the scope of the right of the prisoners or the detainees to have interviews with the family members, friends and counsel. In Dharmbir vs. State of U.P4 the court directed the state Government to allow family members to visit the prisoners and for the prisoners, at least once a year, to visit their families. Following things are essential in regard to these provisions. (a) An arrested person being held in custody is entitled, if he so requests

to have one friend, relative or other person who is known to him or likely to take an interest in his welfare, told as far as practicable that he has been arrested and where is being detained. (b) The police officer shall inform the arrested person of his right when

he is brought to the police station. 4

Dharambir And Anr vs State Of U.P 1979 AIR 1595, 1980 SCR (1) 1

92

(c) An entry should be required to be made in the diary as to who was

informed of the arrest. These protections from the power must be held to flow from the Articles 21 and 22 (1) and enforced strictly. 3.2.1.9 Right to be Produced before Magistarte: Article 22(2) This article provides basically two rights: (1) Every person whether man or woman who has been arrested has right to be produced before the nearest magistrate within twenty four hours of arrest excluding time taken for the journey from place of arrest to court of magistrate. (2) No such person shall be detained beyond the said period of twenty four hours without the authority of a magistrate. It is clear here that provision of this article are applicable only when person has been arrested and is accused of some offence or any other act and it has no application when such person has been held guilty of the offence and detained in pursuance of conviction held by court. Keshav Singh v speaker, legislative assembly.5 3.2.1.10 Right to Constitutional Remedies: Article 32 When the personal liberty of a person is deprived by the officials illegally, the remedy available to them is by way of Writs under Article 226 of the constitution before the high courts, and under article 32 of the constitution before the Supreme Court. Article 32 says, “The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus,

5

AIR1965All349 .

93

prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by part III” Article 226 says “Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose”. Dr .B.R Ambedkar called this Article as “The fundamental of the fundamental right

and “heart and soul of the constitution”. The most

significant of the Human Rights is the exclusive right to the Constitutional remedies under Articles 32 and 226 of the Constitution of India. Those persons whose rights have been violated have right to directly approach the High Courts and the Supreme Court for the judicial rectification, redressal of the grievances and enforcement of Fundamental Rights. In such a case, the courts are empowered to issue an appropriate directions, orders or writs including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto, and Certiorari .No time limit is prescribed for issuing the Writs in the constitution, and has been left to courts to decide. 3.2.1.11 Writ of Habeas Corpus : Preventive as Well as Remedial The Literal meaning of Habeas Corpus is “to have body”. This writ is issued to protect the personal liberty of an individual against arbitrary action of both state and private individual. The scope of this provision is wide and can be availed wherever personal liberty of person is restrained. Before invoking remedy of this Writ it is necessary that petitioner is physically restrained in his personal liberty involving his freedom of 94

movement. the issuance of this writ means an order to detaining authority or person to physically present before the court the detained person and show the cause of detention so that the court can deterermine its legality and if the detention is found to be illegal, the detained person is set for with. The power of court under article 32 is not only preventive but also remedial in nature which means that it has power to grant compensation also. In M.C Mehta v union of India6 court held that compensation can be awarded in “appropriate cases” and not in every case. The appropriate cases are those where infringement of fundamental right is gross and glaring. 3.2.1.12 Article 39-A : Equal Justice and Free Legal Aid This article embodies principle of fair procedure during trial by courts. State shall secure that the operation of legal system promotes justice and ensure that the opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. If a prisoner is unable to avail his constitutional and legal rights or needs legal assistance, he cannot be ignored just because of indigence. If prisoner is unable to engage a lawyer than under constitutional directions and other statutory provisions court has power to assign counsel for such prisoner for doing complete justice. Free legal aid was considered ‘an essential ingredient of reasonable fair and just procedure for a person accused of an offence. Khatri v State of Bihar.7 3.2.1.13 Seventh Schedule and Article 246 Our constitutional setup provides the power distribution between the Centre and the states. This part is divided between legislative, administrative and executive powers. The legislative section is divided into 6 7

1988 AIR 115 1981SC982AIR

95

three lists, Union list, States list and Concurrent list. So accordingly parliament can make laws for matters incorporated in the union list whereas state legislature can make laws which are included in state list. Both parliament and state can make laws on the matters which are included in concurrent list. ARTICLE 246 (3) says “The Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule in Indian Constitution referred to as the “State List”. “But this provision is not absolute they are subject to powers of parliament who can exercise powers of state legislatures under certain circumstances. State list entry iv includes “Prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein, arrangements with other States for the use of prisons and other institution”. So, according to constitution of India ‘prison’ basically is subject matter of the state and state legislatures are entrusted to make laws for them but such shall be in conformity with laws made by parliament because the supremacy in case of ambiguity is of the latter. 3.2.2 Other National Statutory Provisions Relating to Prison System 3.2.2.1 The Prisons Act, 1894 Prisons Act, of 1894 is the initial legislation related to prison system in India. Commenting upon the Prisons Act, of 1894, Dr. Amarendra Mohanty in her book Prison system in India observed the following: “This Act was largely based on deterrent principles reflected mainly the British policy on the subject. The legislators took little pains to look into the other side of the problem. They were concerned more with the prison working than with treatment of the prisoners. This Prisons Act remained

96

unchanged for last more than one hundred years except very minor change.”8 Among the various other provisions under the Prisons Act, 1894, the following sections are related with the reformation of prisoners in one-way or the other: Section 4- Accommodation for prisoners, it ensures the safe and secure living for prisoners inside the jail. Section 7 - Temporary accommodation for prisoners, which means just after entry of prisoner into jail a time being arrangement for them is ensured: Section 8- Control and duties of officers of prisons .guidelines to prison staff for safety and security of prisoner is ensured. Section 12 - Records of prisoners to be kept by Superintendent. Section 15 -Report on death of prisoner, friend or relatives of prisoner are informed on death or in case of emergency Section 19- Jailer to be present at night to look after security of jails . Section 24 -stipulates that whenever a prisoner is admitted in the prison, he shall be searched and all weapons and prohibited articles confiscated from him. Section 27 - Provisions relating to separation of prisoners, containing female and male prisoners, civil and criminal prisoners and convicted and undertrail prisoners Section 33- Supply of clothing and bedding to civil and unconvicted criminal prisoners. Section 34- Employment of civil prisoners. Section 35- Employment of criminal prisoners 8 A Mohanty and Narayan Hazare, ‘Indian Prison system’ p. 19.

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Section 37- Sick prisoners and their treatments . Provisions are made for proper diagnosis and treatment of ill prisoners. Availability of doctors and other medical staff is ensured for that. Section 50 -Medical Officer to certify to fitness of prisoner for punishment. Section 55 -of Act provides that it is the responsibility of the Jail Superintendent to undertake effective measures to ensure the safe custody and security of the prisoners. 3.2.2.2 The Prisons Act, 1900 There are many guidelines in this act which throws light upon the prison system and its reformation: Section 14- That all reference to prisons or the imprisonment or confinement shall be construed as referring also to reformatory schools to detention there. Section 29 -Provisions related to removal of prisoners from one prison to other prison in case of urgency or in need. Section 30- How lunatic prisoners will be dealt by the administration. their stay in prison, treatment are to be looked upon by staff. Section 33 Release on recognizance, by order of high court, of prisoner recommended for partner. 3.2.2.3 The Identification of Prisoners Act, 1920 This act contains various rules regarding measurements and photographs including finger-impressions and foot-print impressions of any person who has been convicted of any offence punishable with rigorous imprisonment for a term of one year of upwards, or of any offence which would render him liable to enhanced punishment on a subsequent convicted, allow his measurements and photograph to be taken by a Police Officer in the prescribed manner. 98

Section 6- Resistance to the taking of measurements –if a convicted person creates obstructions or resistance to authorities while court has ordered to take his finger impression or foot print etc. than authorities can use all the means to take these identification marks. Section 7- This section says that if the accused is acquitted than his photographs and records of measurements should be destroyed. 3.2.2.4 The Government of India Act 1935 According to this act the subject of jails was transferred from the centre list to provincial governments and hence further reduced the possibility of uniform implementation of a prison throughout the nation. Now provincial or state governments have their own rules for the day to day administration of prisons, for keeping and maintaining the prisoners, and prescribing various rules related thereto. 3.2.2.5 The Transfer of Prisoners Act, 1950 This Act contains procedure related to transfer of prisoners from one state to another, but for the application of provision both transferring state and receiving state must have give their prior consent. This Act helps for reducing crowd from over-populated jails to less congested jails. Section 3 of the act says, Where any person is confined in a prison in a state(a) Under sentence of death, or (b) Under or in lieu of, sentence of imprisonment or transportation, or (c) In default of payment of fine, or (d) In default of giving security for keeping the peace or for maintain good behavior, the government of that state may, with the consent of the government of any other state by order, provide for the removal of prisoner from that state to any prison in other state.

99

Prison authorities in receiving state shall make arrangements for the detention of the prisoner in this respect. 3.2.2.6 Prisoners [Attendance in Courts] Act [1955] This Act contains provisions for the attendance in courts of persons confined in prisons for obtaining their evidence or for answering criminal charge. Section3 -Any criminal court may, if it thinks that the evidence of any person confined in any prison is material in any matter pending before it make an order, and direct the officer-in charge of the prison, in respect of a person confined in a prison situated outside the State in which the court is held. Section4 -State Government is empowered to exempt certain prisoners from appearance of in court in certain cases which are mentioned. a) The nature of the offence for which or the grounds on which the confinement has been ordered in respect of the person or class of persons; b) The likelihood of the disturbance of public order if the person or class of persons if allowed to be removed from the prison; c) The public interest, generally. Section 5- Prisoners to be brought up by officer- in-charge of the prison in the court where his presence is required which the person named there in confined. Section 7- Commission to be issued by court for the examination of prisoners in certain cases. 3.2.2.7 The Probation of Offenders Act, 1958 As per the development in the world regarding human right jurisprudence and demand from various non government organizations,

100

probation laws in India were introduced through this act. The special features of this act areSection 3 - Power of court to release certain offenders after admonition-When any person is found guilty of having committed theft punishable under section 379 -381or section 404 or section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, he court may, instead of sentencing him to any punishment or releasing him on probation of good conduct release him after due admonition. The Court should have extended the benefit of probation to the appellant instead of imposing a sentence of fine on him it was held in Keshav Sitaram Sali v. State of Maharashtra,9 Section 4- Power of court to release certain offenders on probation of good conduct.—(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct 3.2.2.8 Model Prison Manual, 1960 This was outcome of Dr. Reckless committee which was appointed in year 1957 and made its recommendation in year 1960.basically it was guideline to the central government and various state governments to improve prison administration in India.

9

AIR 1983 SC 291

101

Initial chapters of this manual dealt with prison setup and infrastructure. It was proposed that prison administration will be headed by inspector general who will be supported by various deputy inspector generals, prison superintendent and other subordinate officers. The manual recognized the classification as well as separation of prisoners on the basis of age sex, nature of crime etc. chapter23 of the manual provides for health, education of prisoners and course curriculum for them. Chapter 24 recommended various training programs and payment of wages to prisoners. it suggested various rehabilitation programs and recommended for better prison administration and management.(chapter28). 3.2.2.9 The Repatriation of Prisoners Act, 2003 The word Repatriation is the process of returning a person to his or her place of origin or citizenship. This includes the process of returning refugees or military personnel to their place of origin following a war. so when a contracting nation ask India to transfer any prisoner to his native place then central government can transfer that person if some reasonable conditions are fulfilled. The main contents of this act are: Section 4- Application for transfer by a prisoner.—Any prisoner who is a citizen of a contracting State may make an application to the Central Government for transfer of his custody from India to that contracting State, Provided that if a prisoner is not able to make an application himself because of his ill-health, mental condition, old age or being a minor. Section 5 -consideration of request by Central Government if  No inquiry, trial or any other proceeding is pending against the prisoner;  Death penalty has not been awarded to the prisoner;  The prisoner has not been convicted for an offence under the martial law; and

102

 transfer of custody of the prisoner to the contracting State shall not be prejudicial to the sovereignty, security or any other interest of India.  If the central government is convinced regarding transfer It shall be lawful for the person authorised by the contracting State to whom the custody of a prisoner is delivered receive and hold in custody such prisoner and to convey him out of India and if the prisoner escapes from such custody within India, the prisoner may be arrested without warrant by any person who shall Section 10- Transfer of record where a prisoner is or is to be transferred to a contracting State under the provisions of this Act, the Central Government may requisition the records of any proceeding, including judicial proceedings relating to that prisoner from any court or office, and may direct that such records shall be sent to the Government of the contracting State. Section 11 - Power of court and Central Government shall not be affected,the transfer of a prisoner from India to a contracting State shall not affect the power of the court which passed the judgment to review its judgment and power of the Central Government or State Government to suspend, remit or commute the sentence in accordance with any law for the time being in force. 3.2.2.10

Model

Prison

Manual

for the

Superintendence

and

Management of Prisons in India 2003 (Formulated by Bureau of Police Research and Development, Ministry of Home Affairs Government of India, New Delhi This committee involving higher officials related to prison administration in India after intensive discussions and deliberations on the subjects assigned to it, submitted the drafts for consideration of government. In this process, the Working Groups were duly formed which

103

were assisted by the secretariat of the committee by way of all the relevant research material including the following: (a) A review of the existing laws, rules and regulations governing prisons, (b) A comparative analysis of the provisions of the State Prison Manuals of India, (c) A thorough study of the recommendations made by the All India Committee on Jail Reforms, Supreme Court Judgments and various international instruments on the treatment of prisoners to which India is a party; (d) A close scrutiny of the implications of the proposed Bill on the prisons being finalised by the ministry of home affairs and identification of gaps in the provision of State Prison Manuals. This committee discussed various provisions resulted into suggestion which were mainly following: 3.2.2.10.1 Admission of Prisoners in the jail (CHAPTER v) General rules regarding entry of prisoners in jail are discussed in this chapter. it says that No person will be admitted in a prison as a prisoner unless accompanied by a writ, warrant or order in the prescribed form, signed, dated and sealed by the competent authority.The concerned prison officer/Superintendent will give a receipt in a printed form to the officer who delivers a prisoner at the prison noting therein the property received with the prisoner, which will be carefully examined and shown to the prisoner at the time of his admission. The Medical Officer shall enter, or cause to have entered under his supervision the following details regarding prisoner:

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a) The prisoner's weight on admission b) His state of health c) The class of labour for which he is fit, if he is sentenced to imprisonment with labour. d) Entries to be made by the Superintendent 3.2.2.10.2 Maintenance of Prisoners (Chapter VI) This chapter deals with various issue relating to maintenance of prisoners for example Food Requirements of pregnant and nursing women, Nutrients required, Scales of diet etc. further issues covered in this chapter are: a) Distribution and service of food-Inspector General of Prisons shall prescribe the time for serving morning, mid-day and evening meals in prisons. b) Repair, Maintenance and inspection of clothing and bedding shall be done by authorities regularly. c) Accommodation and Ventilation shall be provided by the prison authorities to each and every prisoner. Proper facility of light air should be there without any interruption. d) Cleaning of latrines- The latrines shall be thoroughly cleaned twice a day or more often if necessary, with disinfectants e) Bathing - All prisoners should be required to bath as frequently as there is required. 3.2.2.10.3 Medical Care Of Prisoners (Chapter VII) This chapter gives detail guidelines to authorities related with prison management to provide medical facilities and treatment which is required to prisoners. For that purpose there shall be appointed medical officers, surgeons, nurses and other medical staff. There is also provision of 105

establishing hospital accommodation for prisoners at central and district prison. Inmates should be categorized for the purpose of treatment. It shall be duty of medical officer to inspect the jail regularly to look after sick prisoners. proper diagnosis ,medicines, medical diet shall be arranged for them. 3.2.2.10.4 Contact With Outside World (Chapter VIII) Every prisoner shall be allowed reasonable facilities for seeing or communicating with, his/her family members, relatives, friends and legal advisers for the preparation of an appeal or for procuring bail or for arranging the management of his/her property and family affairs. He/she shall be allowed to have interviews with his/her family members, relatives, friends and legal advisers once in a fortnight. The number of letters a prisoner can write in a month shall be fixed by the Government under the separate rules. Suitable waiting rooms may be provided in every prison to enable visitors to await their turn for interview. They may be given a token to await their turn. Other facilities provided to Prisoners a) A copy of the rules relating to prisoners shall be placed in each cell and one copy of the Do's and Don'ts for prisoners shall be given to them. An abstract of the rules shall also be displayed inside the prison gate and on the walls of important prison buildings. b) All prisoners shall be allowed to receive soap, oil and tooth powder, fruits and sweet from their friends and relatives, subject to the condition that the quantity received is limited to their personal requirements for a fortnight and that a thorough examination of the articles, to be passed to the prisoners, is done by a senior officer of the prison.

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c) Where the prisoner seeks help to file an appeal or revision petition, every facility for the excise of this right shall be provided to the prisoner by the Superintendent of Prison. If a prisoner desires to file an appeal and declares that he has no friends or relatives or agents who can file an appeal on his behalf, he/she shall be provided with writing materials and allowed to write his own petition or appeal. 3.2.2.10.5 Transfer Of Prisoners (Chapter IX) According to provisions of this chapter, Prisoners may be transferred from one prison to another for the following reasons a) For custody and treatment in a suitable institution in accordance with the classification procedure b) For attendance in court for the purpose of standing trial or giving evidence, on medical and humanitarian grounds, in the interest of their rehabilitation. c) When a female prisoner is transferred, a female Warder/Woman Police Constable shall accompany her. But, her presence does not relieve the responsibility of the police for the safe custody of the prisoner in transit 3.2.2.10.6 Prisoners Sentenced To Death (Chapter XI) This chapter mentions the provision related to prisoners upon whom death punishment has been imposed. They shall be kept in separate cell with the 24 hours security of a guard A prisoner sentenced to death may be allowed the following facilities with the approval of the Superintendent of Prison:Religious books; Religious pictures;

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Rosary and essential religious emblems in accordance with security measures; Newspapers and books ; and Stationary articles. A prisoner sentenced to death may be allowed the following acilitiesa) A prisoner sentenced to death shall not be put in fetters or handcuffed unless he is so violent as to be dangerous to the guard or to himself. b) If the Medical Officer finds a women prisoner sentenced to death to be pregnant, the matter shall at once be brought to the notice of the Inspector General of Prisons who shall seek the order of the Government for commutation of the death sentence or for postponement of execution till she gives birth to the child. The execution shall not be carried out before the orders of Government are received. 3.2.2.10.7 Emergencies (Chapter XII) This chapter contains provisions related to emergency which says It is the responsibility of the Superintendent to take sufficient measures for preventing and controlling emergency situations hunger strike, suicide epidemic etc in jails. 3.2.2.10.8 Vocational Training and Educational Programmes Chapter 13 and 14 of the manual mention rules regarding vocational training and educational programs. The purpose considered was proper development of mind through intelligent manual labour, spirit of fellowship and a cooperative way of living, and a sense of group adjustment and Developing capacity for sustained hard work, also Building habits of concentration, steadiness, regularity and exactness in work, Imparting and improving work-skills, Awakening the self-confidence and self-reliance of inmates. Training and preparing inmates for achieving lasting social 108

readjustment and rehabilitation, Imparting an occupational status and thus creating a sense of economic security among inmates, Keeping inmates usefully employed in meaningful and productive work, Preventing idleness, indiscipline and disorder amongst them and at last Maintaining a good level of morale amongst them and thus promoting a sense of self-as well as institutional discipline among them. 3.2.2.10.9 PRISONERS WELFARE PROGRAMS (chapter xv) Prison welfare programs which are given in chapter 15 can be summarized as : (a) Organizing various activities in prison like drama, acting film shows, celebration of Independence Day, republic day and other festivals. Also there is provision of holding time bound prisoner’s panchayats etc. (b) Cultural and recreational activities should be organized in all institutions for maintaining the mental and physical health of prisoners. These activities are the basic elements of rehabilitation programmes for prisoners. These should form the integral part of an institutional regime. (c) Activities include Outdoor games like, Cricket, kabaddi, wrestling, volley ball,

badminton, football and basket-ball. Gymnastics.

Indoor games like Chess, Ludo and Carrom. 3.2.2.10.10 Other Reformative Programs and Schemes a) Such programs include Daily Routine Program for Under trial Prisoners which includes morning wake up, toilets than meditation, P.T or group exercise, Cleaning of barracks cells, yards, open spaces Cleaning of equipment, Work on voluntary basis, Educational 109

classes, Washing of clothes and bath, Meal and rest. Each Central and District prison, and Kishore Yuva Sadan, should have a film projector for showing films to the prisoners. organising Music programmes which could consist of radio music, recorded music, group singing, folk music, instrumental music and orchestra.10 Chapter 15 b) Remission - it is a concession, which can be granted to prisoners by the State Government or by the Head of the Prison Department and Superintendent of Prisons. This concession is subject to subsequent withdrawal/forfeiture/revocation. The State Government reserves the right to debar/withdraw any prisoner, or category of prisoners, from the concession of remission. The scheme is intended to ensure prison discipline and good conduct on the part of the prisoners, and to encourage them to learning and better work culture, with the prospect of their early release from prison as an incentive.11 c) Premature Release -The most important consideration for pre-mature release of prisoners is that they have become harmless and useful member of a civilised society. For the purpose of recommending the pre-mature release of prisoners in each state a Sentence Review Board should be set up to advice the government.12 d) Open and semi open institution-All Open and Semi-open institutions are intended to put into practice the contemporary ideology of reformation, correction and rehabilitation of convicted prisoners so that they may lead a self-disciplined and cultured life after release. These institutions provide the prisoners opportunities of employment and living a life in the open. This restores dignity of the individual 10 Model prison manual 2003 11 Model prison manual 2003 chapter 16 12 Model prison manual 2003 chapter 18

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and develops in him self-reliance, self- confidence and social responsibility, which are necessary for his rehabilitation in the society.13 e) The State Government shall establish separate prisons for women offenders. Till separate prisons for women are established, both male and female inmates can be confined in the same prison on the condition that female offenders are to be kept in a strictly secluded female enclosure.14 3.2.2.11 Approval of New Prison Manual 2016 by Union Home Minister The Union Home Minister Shri Rajnath Singh has approved the new Model Prison recently , Manual consisting of 32 chapters which aims at bringing in basic uniformity in laws, rules and regulations governing the administration of prisons and the management of prisoners all over the country.15 The key issues in the new Manual include the following – (i)

Access to free legal services : Appointment of jail visiting advocates; Setting up of a legal aid clinic in every prison; legal literacy classes in prisons.

(ii)

Additional

provisions

for

women

prisoners

:

Comprehensive health screening for women prisoners, including tests to determine presence of sexually transmitted or blood-borne diseases, mental health concerns, existence of drug dependency, etc. (iii)

Rights of prisoners sentenced to death: The Supreme Court, in Shatrughan Chauhan v. Union of India and Others observed

13 Model prison manual 2003 Chapter 21 14 Model prison manual 2003 chapter 24 15 Source Press Information Bureau Government of India Ministry of Home Affairs21-January2016.

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that the legal procedure adopted to deprive a person of his life or liberty must be fair, just and reasonable and according to protection under Article 21 of the Constitution of India inheres in every person, even death-row prisoners, till the very last breath of their lives. regular Physical and mental health reports to certify that the prisoner is in a fit physical and mental condition. (iv)

Modernisation & Prison computerisation : Additions have been made to the Manual to encourage use of technology/ software systems where possible, including introduction of a Personal Information System for recording information relating to inmates.

(v)

Focus on after-care services : The Manual recognises that it is the States’s responsibility to devise and develop mechanisms for rehabilitation of released convicts.

(vi)

Provisions for children of women prisoners : issue guidelines to ensure holistic development of children of women prisoners inside prisons and pregnant prisoners.

(vii)

Inspection of Prisons :A new chapter on inspection of prisons has been incorporated as Chapter providing for a) Informal inspections to be carried out by senior prison officers, and b) Formal inspection to be carried out by a designated Inspector Officer.

3.2.2.12 Juvenile Justice (Care and Protection of Children) Act, 2000 Chapter IV of this act speaks of Rehabilitation and Social Reintegration, related provisions of juveniles which are as follows

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(A) Process of rehabilitation and social reintegrationThe rehabilitation and social reintegration of a child shall begin during the stay of the child in a children's home or special home and social reintegration

of

children

shall

be

carried

out

alternatively by

Adoption, foster care, sponsorship, and by sending the child to an after-care organization.16 (B) Adoption17 Adoption shall be resorted to for the rehabilitation of the children who are orphan, abandoned or surrendered after ensuring safety of the child The Court may allow a child to be given in adoption a) To a person irrespective of marital status; or b) To parents to adopt a child of same sex irrespective of the number of living biological sons or daughters; or c) To childless couples. (C) Foster care The foster care may be used for temporary placement of those infants who to be given for adoption. In foster care, the child may be placed in another family for a short or extended period of time, depending upon the circumstances where the child's own parent usually visit regularly and eventually after the rehabilitation, where the children may return to their own homes.18 (D) Sponsorship The sponsorship programme may provide supplementary support to families, to children's homes and to special homes to meet medical,

16 Section 40 juvenile justice act 2000 17 Section 41 juvenile justice act 2000 18 Section 42 juvenile justice act 2000

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nutritional, educational and other needs of the children with a view to improving their quality of life.19 (E) After-care organization. According to this provision state government can make rules for the establishment, maintenance, training etc. of various after care organization who will take care of such juveniles for the purpose of rehabilitation and personality improvement.20 Provided further that a juvenile or child over seventeen years of age but less than eighteen years of age would stay in the after-care organization till he attains the age of twenty years. 3.2.2.13 Law Commissions of India on Prison Reforms After independence in India, there had been demands in Parliament and outside for establishing a Central Law Commission to recommend revision and updating of the inherited laws to serve the changing needs of the country. The Government of India reacted favourably and established the First Law Commission of Independent India in 1955 with the then Attorney-General of India, Mr. M. C. Setalvad, as its Chairman. Since then twenty one more Law Commissions have been appointed, each with a three-year term and with different terms of reference. They have also discussed and shown their concern for the prisoners in few of their reports. Which are mainly Eighth Law Commission (Chairman Mr. Justice H. R. Khanna, 1977-1979) This commission discussed the Congestion of under trial prisoners in jails, showing great concern on overcrowding of prisons in India this commission made valuable some suggestions to reduce this congestion through regular review of such cases.

19 Section 43 juvenile justice act 2000 20 Section 43 juvenile justice act 2000

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Ninth Law Commission (Chairman Mr. Justice P. V. Dixit 1979-1980) This commission discussed the features of Identification of Prisoners Act, 1920. Twelfth Law Commission (Chairman Mr. Justice M.P. Thakkar 1988-1991) This commission discussed situation of women prisoners in custody .it suggested various safety measures for women concerning her health and care. Thirteenth Law Commission (Chairman Mr. Justice K. N. Singh 1991-1994) This commission discussed reforms for custodial crimes and suggested measures to stop crimes in the custody. Sixteenth Law Commission (Chairman Mr. Justice B. P. Jeevan Reddy 2000-2001) This commission issued many guidelines for reforms related to prisoners, key issues dealt were Law Relating to Arrest, Article 20 (3) of the Constitution of India and Right to Silence, Witness Identity Protection and Witness Protection Programmes.

3.2.3 Prison Climate In Jail Prisoners housed in jails have a right to life with dignity even while in custody and it is the responsibility of the State to ensure protection of human rights of persons in custody. It is duty of state to provide best possible facilities as per laws for prisoners which are required for maintaining their dignity; ensure protection of their human rights; reform prisoners by involving them into the various spiritual and educational activities; and also to engage them into the various vocational training and works programmes to rehabilitate them after their release from prisons. 115

The National Human Rights Commission under21 had been entrusted with an important/mandatory function of visiting the prisons under the control of the State Governments where persons are detained or lodged for the purpose of the treatment, reformation and the protection, so as to assess the living conditions of prison inmates and suggest remedial measures. Reforms in Tihar Jail for reviewing the social climate by Dr. kiran bedi In her own words in an article by Dr. kiran bedi Inspector General of Tihar jail “The jail warden led me through a dark winding passage. I was feeling suffocation there by the humid stench of the open gutters that lined the walls. Soon we approach to an opening where hundreds of prisoners, all dressed in striped rags, stood looking at me in wonder. The warden suddenly broke the silences by yelling some commands at the crowd. Where there was space for around 2,500 prisoners, more than 10,000 were herded together within the walls of Tihar jail. I thought, to myself or in view, if there was a hell on earth, this was it.That very moment I realized why I had been posted as the Inspector General, or IG, of the infamous Tihar jail in Delhi. I began to visit the prisoners/in prison every day. I would sit along with the larger groups and discuss their problems they facing in the prison. I knew that apart from improving the hygiene and general condition of the prison, I had also to keep the prisoners busy so that they would not have any free time to get into the mischievous. I started by introducing some simple but the effective routines for them such as walks around the prison, sporting events and cultural events like singing and acting.” “I soon made a group of trusted officers who helped me out in this research as well. A major problem that my team and I faced was that of the religious groupings and enmity between them. To put an end to this danger we began to celebrate the festivals from all the religions, like Rakhi, Holi, 21 section 12 (c) of the Protection of Human Rights Act, 1993

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Ramzaan and Christmas. This helped the inmates to accept each other’s religious practices better and even feel good about participating in them. On my last day, as I went on my usual round of the prison, I saw what could only be described as an ashram of Indian rishis. Hundreds of hardened criminals, who had committed the worst of crimes, were sitting peacefully in meditation”. This was a piece of sample related to prison administration reforms initiated in India by Dr. Bedi when she was posted in Tihar Jail in 1993-95. A Report on Inadequate security measures and arrangements in the Prisons in

India –following are the major concerns related to prison

security in Indiaa) The security staff posted at the gate to check vehicles entering the prison complex carrying jail supplies are not equipped with any instrument to detect explosives. This was being done only through visual checking. b) There is no communication system by way of intercoms or telephone lines from ward to ward, ward to deodi (main entrance to jail) and ward to chakkar (control room) which could seriously hamper communication in case of any emergency situation requiring swift response. c) Names and details of visitors are entered manually in registers at the main gate of the jail complex. This does not enable quick generation of a full picture of those who have entered the jail premises and have yet to leave at any point of time. Such a report would have to be manually compiled which was time consuming. d) The model Prison Manual prepared by the Union Ministry of Home Affairs states that the ideal ratio between guarding staff i.e. warders and prisoners should be 1:6. However, the ratio as per the sanctioned strength was 1:15 to 1:19 while the ratio as per actual men in position was 1:19 to 1:26. 117

3.2.4 Socialism in Indian Prison Every society has its own way of social control for which it frames certain laws and also mentions the sanctions with them. Before the punishments these sanctions are nothing. The first thing to mention in relation to the definition of punishment is the ineffectiveness of the definitional barriers aimed to show that one or other of the proposed justifications of the punishments either logically include or logically excluded by definition. Punishment has the following features:22  It involves the deprivation of certain normally recognized rights, or other measures considered unpleasant  It is consequence of an offence  It is applied against the author of the offence  It s applied by an organ of the system that made the act an offence The kinds of punishment given are surely influenced by the kind of society one lives in. Though during the ancient period of history, the punishment was more brutal as fear was taken as the prime instrument in preventing the crime. But with the change in time and development of human mind the punishment theories have become more tolerant to these criminals. Debunking the firm theories on punishment, the modern society is seen in loosening its hold on the criminals. The present scenario also witnesses the opposition of capital punishment as inhuman, though it was a major form of punishment for the criminals earlier. For Social system in the Prison also refers prison climate. It is often used synonymously with the term “prison environment”. The potential importance of measuring prison climate is central for understanding the both what happens in prison, and what may happen even on release. The 22 Prison Reforms In Indian Prison System Arnav Sood http://www.legalserviceindia.com/

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statement, that the people are sent to the prison as punishment, not for punishment which reflects the moral view that incarceration in and of itself is sufficient punishment for an offence. However, such a position tends to view prison as a kind of ‘black box’ which is punitive just by virtue of the deprivation of the liberty, and as such it is relatively equivalent in its impact across institutions for any given period of custodial sentences. However, actual prison conditions will vary in terms of the physical fabric of the institution, the firmness of the regime, and its social organizations, by jurisdiction and the political perception of offenders, and by the perceptions of those associated with the prison. Thus, it is reasonable to assume that variation in prison climate may have an impact on offending and re-arrest rates, and type of offences, after release. It can also influence the impact of imprisonment on self-harm, violent behaviours, or drug use among other variables, during incarceration. It could be potentially considered as a penological equivalent to environmental criminology, where behaviours are influenced by place-based factors. For the social climate of the prison may be understood better by the following worldwide view. 3.2.5 Socialism with Women Prisoners in Prison Indian society gives honourable status to the women. The position of a woman in Vedas and the Upanishads age is that of a mother (mata) or goddess (Devi). In the Manusmriti, the women are considered as the precious being or be protected first by her father, then by her brother and husband and finally by, her son. Presently women populations in India represent 48.2 percent of the country’s population. Various developmental programmes have been implemented by the Five Year Plans. In the year of 1985, a separate Department of Women and Child Development was set up for improvement of their conditions in the prison. The major programmes include a Support to Tanning-cum- Employment Programme (STEP) for women, Mahila Kosh, Women’s Development Corporation, etc. In India 119

there is also need of such programmes for solving the acute problems of the women prisoners inside or outside the prisons. Court also considers the rights of the women in country as well in the Indian prison. The Supreme Court has made a ruling that a mother has only the right to act as the guardian of her minor child. It has made “sexual harassment with the women” at workplace as an offence. The Delhi High Court also ruled that a pregnant woman, student cannot be barred from taking examinations in any semester, due to attendance shortage on 13th July, 2010. The court directed that the Delhi University and Bar Council of India, to relax with the strict attendance rules for students who are unable to attend classes due to pregnancy. Even a number of other crimes are also being committed against the women in the Indian society. Women are exploited in the society at the different levels because of their unawareness about their legal rights. Condition of the women prisoners, in Indian Prison, is also not good. They are being devastated, victimized and even harassed in the prisons. Custodial horror is a daily occurrence for women prisoners in our country. What can a woman do when her ‘custodians’ become her violators? The question is very intimidating and the frightening but this is actually happening to women in India. There have been innumerable cases where ‘men-in-khaki’ as we usually refer to the police, have been caught outraging the women prisoners’ modesty, inside and outside the jail. Women prisoners in India are not just been raped but even murdered by policemen. Most of the women in Indian jails belong to poor background. A woman of a sound background whatever may be the ground, generally avails all the privileges in the jail as the Rajya Sabha member K. Kanimozhi was sent to Tihar jail on base of her involvement in high profile 2G spectrum case. She pleaded in the court; she should get bail on the grounds that she is a woman and a mother and on the base of this she was granted bail on November 28, 2011. 120

In judicial custody for almost over six months, she was given a separate cell in the women’s section, equipped with a bed, a television and a toilet as well. Moreover the Prison Act, which was represented in 1894, is too old. It contains no provisions for welfare of the women prisoners. Deputy Director, Institute of Correctional Administration, Chandigarh But what about the women who having no privilege, who suffer a lot of problems in the prison. Most of the women in India even all over the world do not even know about the court procedure. Dr. Upneet Lalli has mentioned that the Prisons Act, 1894 focuses only on the prison security, offence and punishment and not on correction, reformation and rehabilitation of prisoners. She felt that problems still existed and changes were required in the areas of overcrowding, delay in trial and legal aid, health and hygiene, prison visits-procedure, foodhygiene, quality, service, poor living conditions, women and children-drugs, mobiles, the security issues, lack of educational and vocational training, lack of reformation and slow pace of the modernization.She stated, as about 4.1% of the prison population consisted of women, the problems of women prisoners should also be given more care.23 3.2.6 Women and Prison A prison is a State subject under List-II of the Seventh Schedule to the Constitution of India. The Prisons Act 1894, on the basis of which the present jail management and administration works in India. Many committees and commissions appointed by both central and state governments after Independence have improved to look after the conditions of the prisons. The committee like A.N. Mulla, R.K. Kapoor Committee (1986) and Justice Krishna Iyer Committee (1987) were constituted to bring suggestions for improving the prison conditions and administration of the

23 6 http://nhrc.nic.in/Documents/Minutes%20&%20Reco%20Prison%20Reform.pdf

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country. The state Govt has its own rule and regulations to run the prison system. The National Human Rights Commission (NHRC) in Annual Report (1993-94) has expressed its deep concern regarding the conditions of overcrowding, lack of sanitation, poor medical care, and inadequate diet facilities in most of the jails of the country. Again the United Nations Standard Minimum Rules for the Treatment of Prisoners has declared certain important rules that should be applicable to all the prison and prisoners. It declares that there shall be no ‘discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or origin, property, birth or other status. There should be separate jails for the man and women. The convicted and under trial should be kept in different places. “Prisons, though for a short or longer period are places of living for both accused as well as convicts. The reformation objective expects that it should also be a place of learning and earning. To provide the physical, material and the mental conditions of decent living to prisoners, it requires recreating almost a miniature world inside the prisons. This is difficult if not impossible.

3.3

INTERNATIONAL PROVISIONS The issues related to prisoners are not only concerns of national but

it has touched the international scenario also. Since First World War the issues of human rights began to rise at the international level, this journey stated from universal declaration of human right which was initial legislation concerning rights of prisoner as well. 3.3.1 Universal Declaration of Human Rights, 1948 The preamble of declaration reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress

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and better standards of life in larger freedom. The continuous human rights disregard have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. Main provisions are All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.24  Everyone has the right to life, liberty and security of person.25  No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.26  No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.27  All are equal before the law and are entitled without any discrimination to equal protection of the law.28  No one shall be subjected to arbitrary arrest, detention or exile.29  Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.30  Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.31

24 25 26 27 28 29 30 31

Article 1 universal declaration of human rights Article 3 universal declaration of human rights Article 4 universal declaration of human rights Article 5 universal declaration of human rights Article 7 universal declaration of human rights Article 9 universal declaration of human rights Article 10 universal declaration of human rights Article 11 universal declaration of human rights

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 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.32  Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.33  Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.34 3.3.2 The Third Geneva Convention 1949 The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. The Geneva Convention relative to the Treatment of Prisoners of War was first adopted in 1929, but significantly revised and replaced by the Fourth Geneva Convention of 1949. It defines humanitarian protections for prisoners of war. There are 196 state parties to the Convention. Article 4 defines prisoners of war to include: 1. Members of the armed forces of a Party to the conflict and members of militias of such armed forces 2. Members of other militias and members of other volunteer corps, including those of organised resistance movements , etc subject to some conditions Article 5 specifies that Prisoners of war are protected from the time of their capture until their final repatriation. It also specifies that when there is any doubt whether 32 Article 12 universal declaration of human rights 33 Article 14 universal declaration of human rights 34 Article 28 universal declaration of human rights

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a combatant belongs to the categories mentioned in article, they should be treated as such until their status has been determined by a competent tribunal. GENERAL SAFEGUARDS TO WAR PRISONERS Article 12 states that prisoners of war are the responsibility of the state, not the persons who capture them, and that they may not be transferred to a state that is not party to the Convention. Articles 13 to 16 state that prisoners of war must be treated humanely without any adverse discrimination and that their medical needs must be met. This part is divided into several sections: Section 1 covers the beginning of captivity (Articles 17–20). It dictates what information a prisoner must give and interrogation methods that the detaining power may use: "No physical or mental torture, nor any other form of coercion". It dictates what private property a prisoner of war may keep and that the prisoner of war must be evacuated from the combat zone as soon as possible. Section 2 covers the internment of prisoners of war and is broken down into 8 chapters which cover: 1. General observations (Articles 21–24) 2. Quarters, food and clothing (Articles 25–28) 3. Hygiene and medical attention (Articles 29–32) 4. The treatment of enemy medical personnel and chaplains retained to assist prisoners of war (Article 33) 5. Religious, intellectual and physical activities (Articles 34–38) 6. Discipline (Articles 39–42) 125

7. Military rank (Articles 43–45) 8. Transfer of prisoners of war after their arrival in a camp (Articles 46–48) Section 3 (Articles 49–57) covers the type of labour that a prisoner of war may be compelled to do, taking such factors as rank, age, and sex into consideration, and that which because it is unhealthy or dangerous can only be done by prisoners of war who volunteer for such work. It goes into details about such things as the accommodation, medical facilities, and that even if the prisoner of war works for a private person the military authority remains responsible for them. Rates of pay for work done are covered by Article 62 in the next section. Section 4 (Articles 58–68) covers the financial resources of prisoners of war. Section 5 (Articles 69–74) covers the relations of prisoners of war with the exterior. This covers the frequency of which a prisoner of war can send and receive post, including parcels. The Detaining power has the right to censor all mail, but must do so as quickly as possible. Section 6 covers the relations between prisoners of war and the detaining authorities: it is broken down into two chapters. 1. Complaints of prisoners of war respecting the conditions of captivity(Article 78) connecting link between the authorities of the detaining power and the prisoners. Prisoner of war representatives (Articles 79–81). Where there is no senior officer available in a camp the section stipulates that "prisoners shall freely elect by secret ballot, a representative, every six months". The representative, whether the senior officer or an elected person, acts as a connecting link between the prisoner and authority.

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3.3.3 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.35 For the purpose of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.36  Any act of torture or other cruel, inhuman or degrading treatment or punishment is an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights.37  No State may permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment. Exceptional circumstances such as a state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment.38  Each State shall, in accordance with the provisions of this Declaration, take effective measures to prevent torture and other cruel, inhuman or degrading treatment or punishment.39  The training of law enforcement personnel and of other public officials who may be responsible for persons deprived of their 35 Adopted by General Assembly resolution 3452 (XXX) of 9 December 1975 36 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Article 1 37 Ibid Article 1 38 Ibid Article 3 39 Ibid Article 4

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liberty shall ensure that full account is taken of the prohibition against torture and other cruel, inhuman or degrading treatment or punishment. of such persons.40  Each State shall keep under systematic review interrogation methods and practices as well as arrangements for the custody and treatment of persons deprived of their liberty in its territory, with a view to preventing any cases of torture or other cruel, inhuman or degrading treatment or punishment.41  The State concerned shall promptly proceed to an impartial investigation whenever any complain is made by any person relating to inhuman torture in imprisonment.42  If an investigation under article 9 establishes that an act of appears to have been committed, criminal proceedings shall be instituted against the alleged offender or offenders in accordance with national law.43  Where it is proved that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation in accordance with national law.44 3.3.4 The International Covenant on Civil and Political Rights 1976 (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and in force from 23 March. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. 40 41 42 43 44

Ibid Article 5 Ibid Article 6 Ibid Article 9 Ibid Article 10 Ibid Article 11

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As of April 2014, the Covenant has 74 signatories and 168 parties.The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts .main provisions are: (A) Rights to physical integrity  Provision of the Covenant recognises the individual's “inherent right to life" and requires it to be protected by law It is a "supreme right" from which no derogation can be permitted, and must be interpreted widely.45  It prohibits torture and cruel, inhuman or degrading punishment. As with Article 6, it cannot be derogated from under any circumstances. The article is now interpreted to impose similar obligations to those required by the United Nations Convention Against Torture, including not just prohibition of torture, but active measures to prevent its use and a prohibition on refoulement.46 (B) Liberty and security of person  It recognises the rights to liberty and security of the person. It prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law, and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts. These provisions apply not just to those imprisoned as part of the criminal process, but also to those detained due to mental illness, drug addiction, or for educational or immigration purposes.47  It requires anyone deprived of liberty to be treated with dignity and humanity. This applies not just to prisoners, but also to those 45 The International Covenant on Civil and Political Rights 1976 article 6 46 Ibid article 7 47 Ibid article 9

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detained for immigration purposes or psychiatric care. The right complements the Article 7 prohibition on torture and cruel, inhuman or degrading treatment. The article also imposes specific obligations around criminal justice, requiring prisoners in pretrial detention to be separated from convicted prisoners, and children to be separated from adults. It requires prisons to be focused on reform and rehabilitation rather than punishment .48 (C) Procedural fairness and rights of the accused  It recognizes and protects a right to justice and a fair trial and establishes the ground rules: everyone must be equal before the courts, and any hearing must take place in open court before a competent, independent and impartial tribunal, with any judgment or ruling made public.49  The rest of the article imposes specific and detailed obligations around the process of criminal trials in order to protect the rights of the accused and the right to a fair trial. It establishes the Presumption of innocence and forbids double jeopardy. It requires that those convicted of a crime be allowed to appeal to a higher tribunal, and requires victims of a Miscarriage of justice to be compensated. It establishes rights to a speedy trial, to counsel, against selfincrimination, and for the accused to be present and call and examine witnesses.  It prohibits prosecutions under Ex post facto law and the imposition of retrospective criminal penalties, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction.50 48 Ibid article 10 49 Ibid article 14 50 Ibid article 15

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 Requires states to recognize everyone as a person before the law.51 3.3.5 Standard Minimum Rules for the Treatment of Prisoners Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions.52 Purpose of these rules was to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions relating thereto. In the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations. Accordingly the following are the important provision. 1.

Register- In every place where persons are imprisoned there shall be kept a bound registration book with numbered pages in which shall be entered in respect of each prisoner received: ( a ) Information concerning his identity, ( b ) The reasons for his commitment and the authority thereof, ( c ) The day and hour of his admission and release.53

2.

Separation of categories - The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. 54

3.

Accommodation-the place where they are detained shall be so constructed that

entrance of fresh air and natural light is not

interrupted so that they can work and read.55 51 52 53 54 55

Ibid article 16 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 Standard Minimum Rules for the Treatment of Prisoners,1977 rule 2 Ibid rule 8 Ibid rule 9

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4.

Personal hygiene -Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.56

5.

In order that prisoners may maintain a good appearance compatible with their self-respect, facilities shall be provided for the proper care of the hair and beard, and men shall be enabled to shave regularly.57

6.

Clothing and bedding--every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Such clothing shall in no manner be degrading or humiliating.58

7.

Food-every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served. Drinking water shall be available to every prisoner whenever he needs it.59

8.

Exercise and sport- every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.60

9.

Medical services -at every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry. The medical services should be organized in close relationship to the general health administration of the community or nation.61

56 57 58 59 60 61

Ibid rule 15 Ibid rule 16 Ibid rule 17 Ibid rule 20 Ibid rule 21 Ibid rule 22

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10. Rules regarding foreign nationals.-Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong.62 11. News paper facility- Prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorized or controlled by the administration.63 12. Every institution shall have a library for the use of all categories of prisoners,

adequately stocked

with both

recreational

and

instructional books, and prisoners shall be encouraged to make full use of it.64 13. Religion If the institution contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed.65 14. Information to near and dear-Upon the death or serious illness of, or serious injury to a prisoner, or his removal to an institution for the treatment of mental affections, his near relative will be informed by authorities.66 15. Inspection. There shall be a regular inspection of penal institutions and services by qualified and experienced inspectors appointed by a competent authority.67 16. All appropriate means shall be used, including religious care in the countries where this is possible, education, vocational guidance 62 63 64 65 66 67

Ibid rule 38 Ibid rule 39 Ibid rule 40 Ibid rule 41 Ibid rule 44 Ibid rule 55

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and training, social casework, employment counseling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner, taking account of his social and criminal history, his physical and mental capacities.68 17. All prisoners under sentence shall be required to work, subject to their physical and mental fitness as determined by the medical officer. Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day. 69 18. There shall be a system of equitable remuneration of the work of prisoners.70 19. Provision shall be made for the further education of all prisoners capable of pursuing there education further.71 20. Recreational and cultural activities shall be provided in all institutions for the benefit of the mental and physical health of prisoners72. 3.3.6 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment73 JURISDICTION AND SCOPE OF THESE BODIES OF PRINCIPLES: many principles have been incorporated in these bodies of principles relating to persons under detention or imprisonment. Few important provisions are: Principle 1 All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person. 68 69 70 71 72 73

Ibid rule 66 Ibid rule 71 Ibid rule 76 Ibid rule 77. Ibid rule 78 G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988).

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Principle 2 Arrest, detention or imprisonment shall only be carried out strictly in accordance with the provisions of the law and by competent officials or persons authorized for that purpose. Principle 5 Measures applied under the law and designed solely to protect the rights and special status of women, especially pregnant women and nursing mothers, children and juveniles, aged, sick or handicapped persons shall not be deemed to be discriminatory. The need for, and the application of, such measures shall always be subject to review by a judicial or other authority. Principle 6 No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Principle 8 Persons in detention shall be subject to treatment appropriate to their unconvicted status. Accordingly, they shall, whenever possible, be kept separate from imprisoned persons. Principle 10 Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him. Principle 11 A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law. detained person and his counsel, if any, shall 135

receive prompt and full communication of any order of detention, together with the reasons therefore. Principle 12 There shall be duly recorded: a)

The reasons for the arrest;

b)

The time of the arrest and the taking of the arrested person to a place of custody as well as that of his first appearance before a judicial or other authority;

c)

The identity of the law enforcement officials concerned;

d)

Precise information concerning the place of custody.

Principle 14 A person who does not adequately understand or speak the language used by the authorities responsible for his arrest, detention or imprisonment is entitled to receive promptly in a language which he understands the information relating to his arrest and . Principle 16 If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national 3. If a detained or imprisoned person is a juvenile or is incapable of understanding his entitlement, Special attention shall be given to notifying parents or guardians. Principle 18 A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.

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Principle 19 A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world Principle 21 It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person. Principle 22 No detained or imprisoned person shall, even with his consent, be subjected to any medical or scientific experimentation which may be detrimental to his health. Principle 30 A detained or imprisoned person shall have the right to be heard before disciplinary action is taken. He shall have the right to bring such action to higher authorities for review. Principle 33 A detained or imprisoned person or his counsel shall have the right to make a request or complaint regarding his treatment, in particular in case of torture or other cruel, inhuman or degrading treatment, to the authorities. Every request or complaint shall be promptly dealt with and replied to without undue delay.. Principle 34 Enquiry in cases of death in the custody shall be made by the appropriate judicial or other authority.

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Principle 36 A detained person suspected of or charged with a criminal offence shall be presumed innocent and shall be treated as such until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. Principle 38 A person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial. 3.3.7 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment74 This convention ensured that the protection of persons deprived of their liberty against torture and inhuman or degrading treatment or punishment could be strengthened by non-judicial means of a preventive character based on visits, Article 1- This Article establishes the body which is to carry out the visits, and the purpose of the visits. In this way it describes the principal functions of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Article 2 -By this provision Parties to the Convention agree to permit visits to any place within their jurisdiction where one or more persons are deprived of their liberty by a public authority. It is immaterial whether the deprivation is based on a formal decision or not Visits may take place in any circumstances. The Convention applies not only in peace time, but also during war or any other public emergency Article 8 - By ratifying the Convention, the States are under an obligation to permit visits to any place within their jurisdiction. The 74 European Treaty Series - No. 126. which entered into force on 1 March 2002.

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purpose of the present provision is to specify the modalities by which a visit is initiated. Article 10 deals with the report which the Committee has to draw up following each visit. This will be based on the facts found during the visit and will take account of any observations which the State concerned might wish to make. The report will also contain the recommendations the Committee considers necessary, the object being in every case to strengthen the protection of persons deprived of their liberty. 3.3.8 Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment75 This protocol ensures the primary liability of each state for protecting the human rights of prisoners and defending their torture and other cruel ,inhuman or degrading treatments inside prison. The objective of this

Protocol is to establish a system of regular visits undertaken by

independent international and national bodies to places where people are deprived of their liberty, in order to prevent abuse of prisoners. The leading provisions of this protocol are: A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture, hereinafter referred to as the Subcommittee on Prevention shall be established and shall carry out the functions laid down in the present Protocol and also The Subcommittee on Prevention shall carry out its work within the framework of the Charter of the United Nations and shall be guided by the purposes and principles thereof, as well as the norms of the United Nations concerning the treatment of people deprived of their liberty. Equally, the Subcommittee on

75 Adopted on 18 December 2002 at the fifty-seventh session of the General Assembly of the United Nations by resolution A/RES/57/199 entered into force on 22 June 2006

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Prevention shall be guided by the principles of confidentiality, impartiality, non-selectivity, universality and objectivity.76  Each State Party shall set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.77 3.3.9 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 78 During the decade of 1980 -1990 many international discussions were held between various nations, United Nations and other international agencies. This convention was outcome of those discussions. Few important provisions under this are:That no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may taken as justification of torture. For the purpose of determining whether there are such grounds, the competent authority shall take all points for consideration concerned of a consistent pattern of gross, flagrant or mass violations of human rights.79 That each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials etc. and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.80 76 Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,article 2 77 Ibid article 3 78 Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1) 79 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment article 2 and 3 80 Ibid article 10

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That each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture. 81 That each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities.82 That each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.83 3.3.10 Basic Principles for the Treatment of Prisoners Adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990 The aim of making these principles was to develop humanization approach towards the treatment of prisoners and for safeguarding their human rights throughout the globe. The principles are equally applied impartially. These can be summarized below;  Prisoners around world shall be treated with the respect due to their inherent dignity and value as human beings.  Discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status was discarded.

81 Ibid article 11 82 Ibid article 13 83 Ibid article 14

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 Religious belief of prisoner should be regarded.  The responsibility of prisons for the custody of prisoners and for the protection of society against crime shall be discharged in keeping with a State's other social obligations.  All prisoners shall contain all the rights which are enriched in the all international treaties, conventions, to which the state which has detained him is party.  All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.  Each state should try to abolish the solitary confinement and state who have already done this must be supported or encouraged.  State should try to encourage remunerated employment for prisoners which will facilitate their reintegration society as well as help their family’s financial needs.  Prisoners shall have access to the health services available in the country without any discrimination.  With the participation and help of the community and social institutions, and with due regard to the interests of victims, favourable conditions shall be created for the reintegration of the exprisoner into society under the best possible conditions. 3.3.11

European Convention on Human Rights signed on 4 November 1950 Effective :3 September 1953 After universal declaration of human rights in 1948, Many

European nation also demanded a protocol for them related to human right protection which resulted in the above convention. Various provisions containing protection to prisoners are: 142

ARTICLE 2 Right to life- Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ARTICLE 3 Prohibition of torture- No one shall be subjected to torture or to inhuman or degrading treatment or punishment ARTICLE 5 Right to liberty and security- Everyone has the right to liberty and security of person. No one shall be deprived of his liberty except in rare situations. ARTICLE 6 Right to a fair trial- In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ARTICLE 7 No punishment without law-. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. 3.3.12

United Nations Rules for the Protection of Juveniles Deprived of their Liberty 84 When united nations shocked at the conditions and circumstances

under which juveniles are being deprived of their liberty worldwide, and are highly vulnerable to abuse, victimization and the violation of their rights

84 The General Assembly, 45/113, 14 December 1990

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they decided to make rules regarding their safety and development. Here are some important rules:  Age of juvenile was considered to be 18 years.  Any deprivation of the liberty of a juvenile should be a considered as last resort nd for the minimum necessary period and in exceptional cases only.  The Rules under this treaty should be applied impartially, without discrimination of any  Type as to race, colour, sex, age, language, religion, nationality, political or other opinion , cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability.  Juveniles deprived of their liberty shall not be denied any civil, economic, political, social or cultural rights to which they are entitled under national or international provisions  Principal of innocence till the conclusion of trial shall be applicable in case of juveniles also without any discrimination.  In every place where juveniles are detained, a complete and secure record of the physical and mental health problems, including drug and alcohol abuse shall be maintained.  Juveniles deprived of their liberty have the right to facilities and Services which should

meet all the requirements of health and

human dignity.  Every juvenile has right to compulsory education equivalent to his school status which can prepare him for returning to society.  Diplomas or educational certificates awarded to juveniles while in Detention should not contain any sign which indicates that he was in prison.

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 Every juvenile should have the right to receive vocational training in prison so that he can prepare himself for his future employment.  All protective national and international standards applicable to child labour and young workers should apply to juveniles deprived of their liberty.  Every juvenile should have the right to a suitable amount of time for daily free exercise while he is under detention.  Every juvenile should be allowed to satisfy the needs of his or her religious and spiritual life.  Parents and relatives has right to be informed in case of death, injury or illness of juvenile 3.3.13

United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)85 These Standard Minimum Rules provide a set of basic principles to

promote the use of noncustodial measures, as well as minimum safeguards for persons subject to imprisonment. These are intended to promote greater community involvement in the management of criminal justice, specifically in the treatment of offenders, as well as to promote among offenders a sense of responsibility towards society. These Rules shall be implemented taking into account the political, economic, social and cultural conditions of each country and the aims and objectives of its criminal justice system. rules can be summarized as following  Member States shall make efforts to ensure a proper equilibrium between the rights of individual offenders, the rights of victims, and the concern of society for crime prevention.  Each State shall develop non-custodial measures within their legal systems to provide other options, thus reducing the use of imprisonment, and to review criminal justice policies, taking into 85 Adopted by General Assembly resolution 45/110 of 14 December 1990

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account the observance of human rights and requirements of social justice and the rehabilitation needs of the offender.  The states should develop non custodial measures and make timely evolution of such measures.  Consideration shall be given to dealing with offenders in the community avoiding as far as possible resort to formal proceedings or trial by a court, in accordance with legal safeguards and the rule of law. Non-custodial measures should be used in accordance with the principle of minimum intervention. The use of non-custodial measures should be part of the movement towards depenalization and decriminalization. 3.3.14

Resolution 2010/16 United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) These rules do not in any way replace the Standard Minimum

Rules for the Treatment of Prisoners and the Tokyo Rules discussed above. Therefore, all provisions contained in those two sets of rules continue to apply to all prisoners and offenders without discrimination. This resolution contains Basic rules covering the general management of institutions, is applicable to all categories of women deprived of their liberty, including criminal or civil, untried or convicted women prisoners. Following are the noticable rules under this resolution: Rule 2 Newly arrived women prisoners shall be provided with facilities to contact their relatives; access to legal advice; information about prison rules and regulations. Rule 4 Women prisoners shall be allocated, to the extent possible, to prisons close to their home or place of social rehabilitation, taking account of their caretaking responsibilities.

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Rule 6 The health screening of women prisoners shall include comprehensive screening to determine primary health care needs, and also shall determine: (a) The presence of sexually transmitted diseases or bloodborne diseases; and, depending on risk factors, women prisoners may also be offered testing for HIV, with pre- and post-test counseling. Rule 7 If the existence of sexual abuse or other forms of violence before or during detention is diagnosed, the woman prisoner shall be informed of her right to seek recourse from judicial authorities. Rule 8 The right of women prisoners to medical confidentiality, including specifically the right not to share information and not to undergo screening in relation to their reproductive health history, shall be respected at all times. Rule 9 If the woman prisoner is accompanied by a child, that child shall also undergo health screening, preferably by a child health specialist, to determine any treatment and medical needs. Suitable health care, at least equivalent to that in the community, shall be provided Rule 12 Individualized, gender-sensitive, trauma-informed and comprehensive mental health care and rehabilitation programmes shall be made available for women prisoners with mental health care needs in prison or in non-custodial settings. Rule 22 Punishment by close confinement or disciplinary segregation shall not be applied to pregnant women, women with infants and breastfeeding mothers in prison. Rule 26 Women prisoners‟ contact with their families, including their children, their children’s guardians and legal representatives shall be encouraged and facilitated by all reasonable means.

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Rule 29 Capacity-building for staff employed in women‟s prisons shall enable them to address the special social reintegration requirements of women prisoners and manage safe and rehabilitative facilities. Rule 33 All staff assigned to work with women prisoners shall receive training relating to the gender-specific needs and human rights of women prisoners. Rule 43 Prison authorities shall encourage and, where possible, also facilitate visits to women prisoners as an important prerequisite to ensuring their mental wellbeing and social reintegration. Rule 48 Pregnant or breastfeeding women prisoners shall receive advice on their health and diet under a programme to be drawn up and monitored by qualified health practitioner.

3.4

WORLDWIDE VIEWS OF THE SOCIAL CLIMATE IN THE PRISON Measurement issues: From a more immediate measurement

perspective, we can ask if there is any commonality, and to what extent, between the salient environmental characteristics identified in two similar western prison systems. Cross-system comparisons, which have the advantages of making possible comparisons between larger systems and providing information on the impact of system and cultural-level variables, may also provide an opportunity for carrying out larger combined studies across several centers. In order to understand the role of prison climate, if any, on prison and post-release behavior, we need to measure prison climate reliably, validly and comprehensively. A first step is to understand the salient dimensions of the prison climate and determine their universality in similar cultures in India. The US Federal Bureau of Prisons (BoP) has developed a measure of prison social climate, the Prison Social Climate Survey (PSC: 148

Saylor, pers.com) for both staff and inmates, are comparable. In the UK, Liebling with Arnold (2004) has also developed a measure of prison climate to measure inmate perceptions of their environment in England and Wales. Previous research on prison climate:86 notes that traditional prison settings affect prisoners in different ways – and that to support rehabilitation, prison environments should provide external controls to guide inmates’ behavior as well as environmental attributes that may support the internal changes and personal growths. Lutze’s idea that prison environments should assist inmates to identify their deficits and provide programs to provide assistance in rehabilitation, however, cannot be tested without being able to measure prison climates and understanding their interactions with inmate Crises in correctional environments may be associated with issues of prison climate and specifically prison dynamics. A number of variables that may contribute to the violence, what are associated with the physical conditions in prisons. Suedfeld Suedfeld P (1980). Environmental effects on violent behavior in prisons. International Journal of Offender Therapy and Comparative Criminology 24:107-116. (1980) classes these as including spatial intrusions (having personal space invaded by others, especially unpredictably), monotony (both mental and physical), and external controls (having the environment under the control of someone else). In addition to being physical environmental variables it ensures that all of these variables can also be reflected in cognitive and social aspects of prison climate. Prison environment inventory: More recently, Wright (1985) had developed the Prison Environment Inventory, using 80 items, that was based on Toch’s (1977) research. Toch had interviewed 900 inmates for identifying the shared environmental concerns that were common to all the

86 Lutze (1998) Lutze FH (1998). Are shock incarceration programs more rehabilitative than traditional prisons? A survey of inmates. Justice Quarterly 15:547-563.

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correctional setting. Inmates were asked about their perceptions of the difficulties that arose in the prison environments, and how they managed them as well. Content analyses of these qualitative data identified the eight themes, which Toch had labeled the privacy, safety, structure, support, emotional feedback, social stimulation, activity, and freedom. He noted that these are all dimensions which are the global concerns for inmates as well as universally perceived. He confirms the difficulty, however, that all these variables are seen through the lens of the inmate’s personal perception: they imply a standard of comparison (safe in relation to what – other institutions? The outside of India or in world?) that could be a vital source of random error. Wright. 87 Reintegration of prisoners in society : international concern European countries are increasingly in search of alternatives to confinement, as they realized more resources for assimilation of deviant are available in an open society rather than inside of the closed walls. This has not happened so far in our country as governments across the ideological spectrum are illiberal and the society is unsympathetic to rights of the incarcerated. The complete prison formation is based on seclusion and separatism Prisons are always unattractive places. The incarceration life is really pathetic. The imprisonment is one of the most painful parts of the prisoner’s life. Life in prison is difficult to understand. The prison life reflects its harshness and pain. The prison culture restricts the freedom of the prisoners and stores them in isolation. Prisons issued uniforms also play a large component in destroying personal identity, and crashing individual feelings. Prisoner re-integration poses significant challenges for policy makers, law enforcement and other criminal justice officials, and the 87 Wright KN (1985). Developing the prison environment inventory. Journal of Research in Crime and Delinquency 22:257-277

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community members; but just as imposing a challenge is the issue of jail officer entry and integration into a patrol assignment within the urban community. The urban county jail system harbors some of the harshest conditions found inside the custodial institutions in the United States. These harsh conditions are characterized by overcrowding, widespread cases of inmate mental illness, volatility resulting from the racial and ethnic separations, an increasingly low socio-economic and poorly educated inmate population, limited and under-funded inmate educational and vocational rehabilitation programs, and epidemic proportion health issues. The daily exposure to these as well as other conditions can have the same debilitating affect and influence on the jail officer’ s social and professional development and behavior as it has on the incarcerated inmates. It is common in most large urban cities that operate county jail systems to find jail officers initially assigned to perform jail guard duty upon graduation from the police academy. After completing their jail guard duty, which can range from several months to several years, the jail officer becomes eligible to transfer from the initial custodial assignment to the more esteemed police assignment of street patrol. However, the transition from guard duty in the custodial environment to the police assignment of the street patrol can pose problems for the jail officer who has developed aberrant and professionally dysfunctional behavioral traits, while working inside the county jail. Arguably, it is these aberrant and dysfunctional tendencies, displayed by the former jail officer during the encounters with the citizens in their patrol assignment, which underscore the fragile state of urban police and community relations As successful prisoner re-integration programs require pre-custodial release preparation that includes vocational as well as professional counseling, the issue of jail officer patrol integration too should be considered as important and post-custodial preparation that includes 151

counseling which focuses on social and professional reconditioning to the mainstream social and the professional thoughts, values, and behaviors should become a component of the patrol transitional training program for jail officers. If law enforcement officials are sincerely interested in improving urban police and community relations they can ill afford to assume that jail officers, after doing time in a county jail environment require no re-adjustment period prior to their release from the custody assignment, and transiting into street patrol assignment which is responsible for enforcing laws and making life and death decisions.

***

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Chapter – 4

PRISON SYSTEMA COMPARATIVE STUDY

CHAPTER -4 PRISON SYSTEM – A COMPARATIVE STUDY 4.1

INTRODUCTION India is the world's largest democracy in world. It has free elections, a

multi-party parliamentary system, a diverse and free press, an independent judiciary and the country abounds with the non-governmental organizations that take pride in their independence and that helps to make up a lively civil society. But if check and balance equilibrium of various institutions is disturbed that means something has gone wrong with the system. It appears from review of both prison as well as police system in country. In some major cities of the country and probably elsewhere as well, anyone who is arrested faces a far greater torture, or worse at the hands of police, in comparison to some other countries which has better protections for civil liberties. Though we had some inkling in advance that we would find extensive police abuse of the detainees, we were not prepared for what we discovered about the prisons and jails to which detainees are sent after the police are done with them. They would be bad, if only because the life is hard for the most of the Indians outside the prisons. It stands to a reason; therefore, if incarceration is meant to punish then life inside the prisons should be worse. What took us by surprise, however, is the manner in which it is worse for the great majorities of prisoners and, more surprising, the fact that the imprisonment is somewhat less harsh than we had expected for some prisoners. Though prisons are supposed to be leveling institutions in which the variables that affect the conditions of confinement which are expected to be the criminal records of their prisoners and their behavior in prison, other factors are there that may play a part in many countries. 153

4.2

PRISON SYSTEM IN BRITISH AGE In India, the early prisons were only places of detention where an

offender was detained until trial & judgment and the execution of the latter. In the year of 1784 the British Parliament empowered the East India Company to rule India and from then some attempts have been made to introduce reformations in the administration of Law and Justice in our country. At that time there were only 143 civil jails, 75 criminal jails and with less number as 68 were mixed jails. In fact these jails were an extension Mughal rule which were managed by the personnel of the East India Company in their efforts to maintain peace and establish their trades. As Dr. BK Bhattacharya has very aptly observed, “the British believed only in keeping in custody the prisoners as economically as possible and with the maximum profit to the Government”. It was quite natural that the early British Administration had formulated its Prison Policy with a view to serving it colonial interests alone. In 1835 Lord Macauly drew the attention of Legislative Council of India to the degraded conditions of the Indian prisons and proposed to appoint a committee for the purpose of collecting the information as to the state of Indian Prisons and preparing an improved plan of prison discipline and to suggest such reforms as to make the place (the jail at Alipore) a model for other prisons. The council accepted Macauly’s proposal and appointed ‘The Prison Discipline Committee’ with Honorable H Shakespeare as President and Lord Macauly as one of the members. In the year of 1838, committee put report. The Enquiry Committee was a landmark in history penal administration in our country. Indian Prisoners were given different treatments, the nature and character of the institution assumed to be a changed meaning, though it was punitive basically in our country. The committee directed for the first time attention of the English rulers of India to various defects of the administration of Indian Jails. It 154

criticized the corruption of subordinate establishment, the laxity of discipline and the system of employing prisoners in harsh labour . The committee deliberately rejected all such reforming influences a moral and religious teaching, education or any system of rewards for good conduct, it through the whole weight of its authority in favor of increased rigour of treatment, and proposed to engage all convicts in some dull, monotonous wear some and interesting task in that quicker relief could be secured by working harder for a time. The purposes the prisons according this committee was to make “thegoal a place of dread” through a ruthless process of “severe privation, really hard work, solitude, silence and separation” In pursuance of the recommendations of the committee, A Central Prison was constructed at Agra in 1846. This was the first Central Prison in India and was followed by the construction of central prisons at Bareilly and Allahabad in 1848, at Lahore in 1852, at Madras in 1857, at Bombay in 1864, at Alipore in 1864 at Banaras and Fatehgarh in 1864 and at Lucknow 1867.29 This was the positive contribution in the spear of Prison Reforms in this country, along with its advocacy of the theory of retribution in prison administration. In 1844 the first inspector General of Prisons was appointed in the North Western Province on an experimental basis for two years and was extended further, in 1850 the Government of India Made it a permanent post and suggested that each province should appoint an Inspector General of Prisons. In 1862 the North Western Province employed civil Surgeons as Superintendents of District Jails. In 1870 the Government of India passed Prisons Act. It lay down that there should be a Superintendent, a Medical Officer, a Jailor and such subordinate officers as the local government thinks necessary. This act categorically specified the duties of the prison officials. It also made

155

provision for the separation of prisoners of male from females, of children offenders from adults, of criminal from civil offenders. In 1877 and 1889 third and fourth enquiry committees were instituted. Based on the recommendations of the committees the Prison Act of 1894 was passed. By this the jails appeared to have achieved considerable material progress during this period. In 1919 the British Government appointed a Joint Commission of officials to investigate the whole subject of jail management and to suggest improvement. The commission recommended the establishment of separate institutions like Borstal School for juvenile delinquents. The under trials were to be kept separate from the convicted and the adult convicts were to be classified as habitual and casuals. The committee report also took serious views on transportation of convicts to Andaman Islands and recommended for the discontinuation of the practice. Solitary confinement had been terminated remain so. All convicts below 29 years of age were to be cared under adult education programmes and libraries were to be established in all Jails. Quality of food to be improved and prisoners were to be provided with two sets of clothing. The commission underlined the idea of reform of inmates as ultimate objective of imprisonment and rehabilitation of prisoners as social necessity. Unfortunately the prison reform movement received a sudden setback due to the constitutional changes brought about by the Government of India Act of 1919. The Act transferred the jail department from the control of the Government of India to that of Provincial Government. Hence the prison system as it operates today (2016) in our country is a legacy of the British rule. It was the simple creation of the colonial rulers over our indigenous penal system with the prime motive of making imprisonment a threat to wrong doers.

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With the dawn of independence, prison reform was given increased attention. Indian leaders were ready with a blue print for the industrial development of the country, but the jail reform could not escape their eyes as all of them passed their prime life in the jails. Prison administration is a state subject under the constitution of India. The organization, headed by the Inspector General of Prisons consists of central prisons, sub jails or district jails. Different states have adopted different patterns of jail administration. The central Jails are intended for long term prisoners who are convicted in courts. India has ratified the International Covenant on Civil and Political Rights (ICCPR) in the year of 1979 which is the most important international treaty on the protection of the rights of prisoners. The International Covenant on Economic, Social and Cultural Rights (ICESR) also states that the prisoners should have a right to the highest attainable standard of physical and mental health in the prisons. 4.3

IMPORTANT COVENANTS RELATED TO PRISONERS Some of the important national and international covenants for the

protection of the rights of the prisoners (worldwide) are as follows:  Arusha Declaration on Good Prison Practice27 February 1999, Arusha, Tanzania  Basic Principles for the Treatment of Prisoners45/111. Basic Principles for the Treatment of Prisoners, The General Assembly,1990  Basic Principles on the use of Force and Firearms by Law Enforcement Officials Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990

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 Basic principles on the use of restorative justice programs in criminal matters2002/12 Basic principles on the use of restorative justice programmes in criminal matters The Economic and Social Council,  Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment General Assembly Resolution 43/173 (9 December 1988).  Code of Conduct for Law Enforcement Officials Adopted by General Assembly resolution 34/169 of 17 December 1979.  Convention on the Elimination of All Forms of Discrimination Against Women adopted in 1979 by the UN General Assembly  Convention on the Elimination of All Forms of Racial Discrimination General Assembly resolution 2106 (XX) of 21 December 1965  International Covenant on Civil and Political Rights United Nations General Assembly on 16 December 1966,  International Covenant on Economic, Social and Cultural Rights16 December 1966,  Kampala Declaration on Prison Conditions in AfricaON PRISON CONDITIONS IN AFRICA,1996  Safeguards guaranteeing protection of the rights of those facing the death penalty The Economic and Social Council, 23 July 1996  The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentGeneral Assembly resolution 39/46 of 10 December 1984  UN Declaration on the Protection of All Persons from Enforced Disappearance 47/133,General Assembly, 1992  UN Recommendations on Life Imprisonment 1994 158

 United Nations Rules for the Treatment of Women Prisoners and Noncustodial Measures for Women Offenders (Bangkok Rules) The Economic and Social Council 2010/16  United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) Adopted by General Assembly resolution 45/110 of 14 December 1990  United Nations Standard Minimum Rules for the Treatment of Prisoners nomic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 Universal Declaration of Human Rights 1948 In India several steps have been initiated for the reformation of the prisoners in jail, but the most important of all is the empowerments and the rehabilitations of the prisoners by the tool of education. Numerous prisoners have been taking the courses via IGNOU and other correspondence methods in the jails which have helped them earned degree in education as well being in jail. Tihar jail, has taken an initiative to help the prisoners to outreach with their degrees by organizing placement programmes in the jail premises for those prisoners who have shown their good conduct.

4.4

PRISON DISCIPLINE IN INDIA The prison follows the following principles that would be most

appraisal of the prison system:  Prison discipline is the prime mover of a dynamic and interactive human mechanism called the correctional process, which an offender undergoes to get reformed into a law-abiding and the dignified citizen, who can become self-reliant after his/ her release and deserve a rightful place in the mainstream of the society.  An offender, after release, always faces odd treatment and rejection from the society at large. On account of such rejection and dislike, the gap between an offender and the society becomes wider. This sends 159

the offender back into the world of crime, and from there again to custody, making a vicious circle. This is how crime recurs. Correctional work aims to bridge the gulf between the offender and the mainstream society.  The aim of Prison system should not be retributive but should be reformative, not repressive but curative.  Prison discipline is the collective responsibility of all the prison personnel who are actually supposed to usher in reformation to the offender.  There should be proper security in Prison discipline so that the safe custody and well being of the prisoners is ensured. 4.4.1 Prison offences Following acts of the prisoners shall constitute prison offences: (i)

Challenging the security of the prison in any way, by any mischievous act and shall include damaging in any way with prison walls, building, bars, locks and keys, lights, destroying stationary or with any other thing used for security measure .

(ii)

Doing any illegal act which creates unwanted apprehensions in the minds of other prisoners.

(iii)

Doing any act with intention to cause any disease, illness, injury or infirmity.

(iv)

Concealing the facts from prison authorities regarding commission of any offence.

(v)

Breaking peace in prison or breaking any rule related to prison discipline.

(vi)

Abatement or instigation, attempt directly or indirectly, the commission of any prison offence.

(vii)

Failing to assist in the maintenance of prison discipline.

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(viii)

spoiling the prison environment by smoking.

(ix)

Failing to give assistance to a prison official when called upon.

(x)

Making false, dishonest, and groundless complaints against prison officials.

(xi)

Committing nuisance or mischief of any sort.

(xii)

Quarrelling with other prisoners.

(xiii)

Assaulting, and causing injuries to others.

(xiv)

Escaping or endeavor to escape from prison

(xv)

Participating in a riot or mutiny, abetting another prisoner to do the same.

(xvi)

Dealing with the contraband articles within prison.

(xvii)

Tampering with registers, identity cards, records or documents.

(xviii)

Failing to report to prison officials about contraband articles.

(xix)

Stealing/damaging/destroying/disfiguring/misappropriatingany government property or another prisoner’s articles and property.

(xx)

Failing to report at once any loss, breakage or injury, which the prisoner may accidentally have caused, to prison property or implements.

(xxi)

Refusing to eat food or going on a hunger-strike and instigating others also

(xxii)

Willfully or negligently destroying or spoiling food, or throwing it away without orders.

(xxiii)

Willfully disabling himself so that he can escape from labour.

(xxiv)

Manufacturing and preparing any article without the knowledge or permission of a prison officer.

(xxv)

Being idled, careless or negligent at work, refusing to work, malingering, disturbing other prisoners at work, or in barracks.

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(xxvi)

Wilfully hurting other sentiments, religious feelings, beliefs and faiths.

(xxvii)

Converting, or attempting to convert, a prisoner to a different religious faith.

4.4.2 Punishments for prison offences The head of prison administrator may initiate action against defaulters and award punishments, provided that no solitary confinement, no rigorous labour, no physical assault, or denial of privileges and amenities, or no transfer to other prisons with penal consequences, shall be imposed on a prisoner without judicial appraisal of the Sessions Judge. Basically Two types of punishments are given to the prisoners. These are following: 1. Minor Punishments: a) Formal Warning b) Loss of Privileges given to the prisoners in a detention for a maximum one month c) Forfeiture of wages up to earnings of three days once in a month d) Forfeiture of earned remission up to ten days. e) Fatigue drill/work for a period not exceeding one hour a day up to seven days subject to the prisoner’s physical fitness being certified by the Medical Officer. 2. Major Punishments: a) Loss of privileges given to the prisoners in detention from one month to three months b) Forfeiture of wages up to earnings of four to seven days in a month c) Transfer to greater security prisons and consequent loss of privileges 162

d) Not counting period of leave towards sentence in case of breach of conditions of leave e) Forfeiture of earned remission beyond 10 days f) Postponement of privileges of leave for a period not exceeding one year starting from the date of the inmate’s next eligibility for release on leave g) Solitary confinement up to 30 days 4.5

PRISONERS ISSUES IN INDIA A prison, jail or correctional facility may be called a place where in

the individuals are physically confined or detained and usually deprived of a range of personal freedom. These institutions are an integral part of criminal justice system of our country. There are many types of prisons in our country such as those exclusively for adults, children, female, convicted prisoners, under-trial detainees and separate facilities for mentally ill offenders. Imprisonments or incarceration are the legal punishments that can be imposed by the state for the commission of a crime or disobeying its rule. The objects of the imprisonment varies from country to country and may be different like a. Punitive b. Deterrent, c. Rehabilitative d. Reformative. In general, these objectives have developed over time as shown in the accompanying figure. The primary purpose and justification of the imprisonment is to protect the society against crime and retribution. As per the current thinking, the punitive methods of treatment of prisoners alone are neither be relevant nor be desirable to achieve the goal of reformation and 163

rehabilitation of prison inmates. Now, Reformation and Rehabilitation has become main concern and the prison system is now moving to function in protective manner. Human right approach and various legislations have facilitated a change in the approaches of correctional systems in Indian society also. The State is under an obligation for protecting the human rights of its citizens as well as to protect the society at large, and it is authorized to do so. To protect the citizens from any possible abuses, they are given certain basic privileges, recognized by the Constitution of India as Rights. Development of these protections gives prisoners also to approach judiciary for protection of their rights

FIGURE 4.1: PRISON FRAMEWORK Human Rights of prisoners: National and International Instruments In India, the idea of rights of the prisoners was long suppressed under the colonial rule and has only recently emerged in public discourse. The 164

Constitution of India confers that the numbers of fundamental rights upon citizens. It is, therefore, a high time that in the light of the observations that was made by the Supreme Court of India, the rights and duties of prisoners is clearly spelt out. The Indian State is also a signatory to various international instruments of human rights, like the Universal Declaration of Human Rights which states that: “No one shall be subject to torture or cruel, inhuman or degrading treatment of punishment” (UDHR, 1948) Also important is the United Nations Covenant on Civil and Political Rights which states in part: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. (UNICCPR, 1966) There are many United Nations codified standards of the treatments for the prisoners across different economic, social and cultural contexts in a number of documents. These concern themselves with ensuring those basic minimum conditions in prisons which are necessary for the maintenance of the human dignity and facilitate the development of prisoners into the better human beings. 4.5.1 Human rights of prisoners in India (A) Right to Human Dignity i. Right to be treated as a human being and as a person; this right has been stressed and recommended by the Supreme Court of India which has categorically declared that prisoners shall not be treated as nonpersons; ii. Right to integrity of the body; immunity from use of repression and personal abuse, whether by custodial staff or by prisoners; 165

iii. Right to integrity of the mind; immunity from aggression whether by staff or by prisoners; iv. Right to non-deprivation of the fundamental rights guaranteed by the Constitution of India, except in accordance with law prescribing conditions of confinement. (B) Right to Basic Minimum Needs Right to fulfillment of basic minimum needs such as adequate diet, health, medical care and treatment, access to clean and adequate drinking water, access to clean and hygienic conditions of living accommodation, sanitations and personal hygiene, adequate clothing, bedding and other equipment for the prisoners. (C) Right to Communication i. Right to communication with the outside world; ii. Right to periodic interviews; and iii. Right to receive the information about the outside world through the communication media. (D) Right to Access to Law i. Right to effective access to information and all legal provisions regulating conditions of detention; ii. Right to consult or to be defended by a legal practioner of prisoner’s choice; iii. Right to access to agencies, such as State Legal Aid Boards or similar organizations providing legal services; iv. Right to be informed on admission about legal rights to appeal, revision, review either in respect of conviction or sentence;

166

v. Right to receive all court documents necessary for preferring an appeal or revision or review of sentence or conviction; vi. Right to effective presentation of individual complaints and grievances during confinement in prison to the appropriate authorities; vii. Right to communicate with the prison administration, appropriate Government and the judicial authorities, as a case may be, for redressal of violation for any or all of prisoners’ rights and for redressal of grievances. (E) Right against Arbitrary Prison Punishment Right to entitlement in case of disciplinary violation (i) to have precise information as to the nature of violation of Prisons Act and Rules, (ii) to be heard in defense, (iii) to communicate for the decision of disciplinary proceedings, and (iv) to appeal as provided in rules made under the Act. Any violation of this right may attract the provisions of Article 14 of the Constitutions, which enshrines right to equality and equal protection of law. In addition, the question of cruelty towards the prisoners is also dealt with, specifically by the Prison Act, 1894 and the Criminal Procedure Code (CRPC). Any excess committed on the prisoner by the police authorities not only attracts the attention of the legislature but also the judiciary. The Indian judiciary particularly the Supreme Court, in the recently, has been very active against violations of the human rights of the prisoners. The Human Rights of the prisoners have been expressed under the Indian Constitution as well as Indian laws governing prisons. The Supreme Court and High Court rulings have played a crucial and vital role in enumerating the rights of the prisoners. 167

(F)Right to Fair Procedure When we trace the origin of the prisoner's right in India, the embryo we can find in the celebrated decision of G:K.Gopalan v. State of Madras. One of the main contentions raised by the petitioner was that the phrase “procedure established by law” as contained in article 21 of the Constitution includes a ‘fair and reasonable’ procedure and not a mere semblance of procedure prescribed by the State for the deprivation of life or personal liberty of individuals. The majority view in Gopalan was that when a person is totally deprived of his personal liberty under the procedure established by the law, the fundamental rights including the right to freedom of the movements are not 0 available. It was held "There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder” 4.5.2 Rights of Women Prisoners in india Women prisoners have many rights. The female prisoners cannot be debarred from their basic human rights and freedoms guaranteed by the Constitution of India. The Supreme Court in the case of Sunil Batra vs Delhi Administration held that whether inside of prison or outside, a person should not be deprived at all of his guaranteed freedom save by methods ‘right, just and fair’. The court process casts the convict into the prison system and the deprivation of her freedom is not a blind penitentiary affliction but a blighted institutionalization geared to a social good. The court has the continuing responsibilities to ensure that the constitutional purposes of the deprivation are not defeated by the prison administrations. There are the numbers of rights of women prisoners in the prison which are provided by the different committees appointed for prison reforms and also by United Nations. In Prison Act 1894, it is stated that these rights must be incorporated. The different types of the human rights, 168

constitutional rights and statutory rights of women prisoners are discussed as under: 1. The search and examination of the female prisoners in the prison should be carried out by Matron under the general or special order of the Medical Officers; 2. The female prisoners have been provided a right to live separate from the male prisoners. Section 27(1) of the Prison Act 1894 provides that in a prison containing female as well as male prisoners, the females shall be imprisoned in separate buildings or separate parts of the same building, in such a manner as to prevent their seeing or conversing or holding any intercourse with the male prisoners; this right is also been provided by Rule 8(a) of Standard Minimum Rules for the Treatment of Prisoners. 3. About the maintenance of certain prisoners from private sources, section 31 of the Prison Act 1894 provides that a civil prisoner or an unconvicted criminal prisoner shall be permitted to maintain himself, and to purchase, or receive from private sources at proper hours, food, clothing, bedding or the other necessaries, but subject to examination and to such rules as may be approved by the Inspector General. 4. About supply of clothing and bedding to civil and unconvicted criminal prisoners section 33 (1) of the Prison Act, 1894 provides that every civil and unconvicted criminal prisoner unable to provide himself with the sufficient clothing and bedding shall be supplied by the Superintendent with such clothing and bedding as may be necessary. 5. All the prisoners should have the basic human rights such as hygienic food, shelter, medical facilities and facilities of reading and writing. They must be treated with dignity in the custody and cannot be 169

isolated in a separate cell, except on the medical grounds or if he/she has proven to be dangerous for the other prisoners. It is the human rights of a pregnant lady to get the full facilities (medical and personal) at the time of delivery. Women prisoners who are pregnant cannot be provided the full facilities in the prison during the pregnancy. Hence at the time of the delivery they can be released on bail. 6. The Standard Minimum Rules for the Treatment of Prisoners provide under-Rule 53(1) that in an institution for both men and women, the part of the institution set aside for women should be under the authority of a responsible women officer who must have the custody of the keys of all that part of the institution. (2) No male members of the jail staff can enter the part of the institution set aside for women unless accompanied by a woman officer. (3) Women prisoners should be attended and supervised only by the women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in the institutions or parts of the institutions set aside for women in the prisons. In the Prisons, the women’s jail has been managed by the women staff at both the functional and supervisory levels. No male staff member was allowed entry beyond the-main `deodhi'. However, male dispatch riders were allowed in the morning to collect the food packets from the kitchen for distribution among both male and female UTPs in the court lock-ups. 4.6

HUMAN RIGHTS ISSUES Never before in history, was the prison administration in India

subjected to such a critical review by the higher judiciary as in the last few decades. Discarding its erstwhile “hands off” doctrine towards prisons, the Supreme Court of India came strongly in favor of judicial scrutiny and

170

intervention whenever the rights of prisoners in detention or custody were found to have been infringed upon. In Sunil Batra v. Delhi Administration and Others (1978), Mr. Justice V. R. Krishna Iyer pronounced: “prisoners have enforceable liberties, devalued may be but not demonetized; and under the basic scheme, Prison Power must bow before the Judge Power, if fundamental freedoms are in jeopardy”. Again in Sunil Batra v. Delhi Administration (1979), the Court asked and affirmed: “Are prisoners’ persons? Yes of course. To answer in the negative is to convict the nation and the Constitution of dehumanization and to repudiate the world legal order, which now recognizes the rights of the prisoners in the International Covenant on Prisoners’ Rights (ICPR) to which our country has signed assent”. In a number of judgments on various aspects of prison administration, the Supreme Court of India has laid down three broad principles i. A person in the prison does not become a non-person. ii. A person in the prison is made to get all the human rights within the limitations of imprisonment. iii. There are no any justifications in aggravating the suffering already inherent in the process of incarceration. “The prison authority has duty to give effect to the court sentence. To give effect to the sentence means that it is illegal to exceed it and so it follows that prison official who goes beyond mere imprisonment or deprivation of locomotion and assaults or otherwise compels the doing of those things not covered by the sentence acts in violation of Article 19. Punishments of adamant imprisonment oblige the inmates to do hard labor, not harsh labor. ‘Hard labour in section 53, Prisons Act to receive a humane meaning. So a vindictive officer victimizing the prisoner by forcing on him particularly harsh and degrading jobs that violates the law’s mandate. The prisoner cannot demand soft jobs but may reasonably be assigned congenial jobs”. 171

4.6.1 Prison scenario: mentally ill prisoners The Human rights and mental illness are nearly related. Persons with mental illness are the most vulnerable for the violation of their rights in the society. They are stigmatized, isolated and discriminated. A mentally ill prisoner has double disadvantages. Even when quality psychiatric care is provided, the inmate/patient still has been doubly stigmatized—as both a mentally ill person and a criminal (Lamb, 2009). He/She may not be able to defend his/her case. Many times, a person with the mental illness may not receive a proper treatment and remains in the custody for years. This may be an account of being unfit to stand trial, lack of support, or because the family of the prisoners is able but unwilling to bail out the person because of the illness. Human rights violation itself can have a severe impact on a person’s mental health and lead to a vicious cycle as it is also shown in the accompanying figure 4.2 (Johnson et al., 2010; Priebe et al., 2010). 1

FIGURE 4.2: HUMAN RIGHTS VIOLATION

1

Experience of human rights violations and subsequent mentaldisorders-a study following the war in the Balkans. Soc Sci Med 2010;71:2170-2177

172

According to Penrose's law, outlined on the basis of a comparative study of European statistics, there is an inverse relationship between the numbers of psychiatric beds and prison populations within a country. Deinstitutionalization or closing down psychiatric hospitals has in fact led to trans-institutionalization (Kalapos, 2009).2

FIGURE 4.3: DE-INSTITUITIONALIZATION AND TRANSINSTITUTIONALIZATION Persons with mental illness are likely to remain in the prisons for unnecessarily long periods of time because of their illnesses go unnoticed, undiagnosed and untreated (Priebe et al., 2005). Even if they are brought to the notice of the court, he/she may not fit to stand for trial. Non availability

2

Kalapos MP. Penrose's law: reality or fiction? Mental health system and the size of prison population - international overview. Orv Hetil. 2009;150:1321-1330

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of timely treatment and continuous care further aggravates the conditions. The family in many of such instances is unwilling to house or care for such persons and there is no any place in the community for their rehabilitations.

4.7

MANAGEMENT OF THE PRISON SYSTEM IN INDIA

4.7.1 Organizational structure of prison system in India In India, the Prisons are a State subject under Entry 4 of the State Subjects List of the Seventh Schedule to the Constitution of India. the management and administration of the prisons comes under control of the State Governments. Thus, the respective governments while making Prison Manuals or laws in our country should consider all of the provided guidelines. The overall legislative accountability of prison is headed by minister in charge of home department who is assisted by administrative officers like secretary additional secretary etc. taken from the cadre of the Indian Administrative Service. The Inspector-General of prisons is the executive head of the prison department in India and is entrusted with the duty to implement the policy made by the minister. He is also authorized to keep general control over jail department, and for inspection of all jails each year. He has the duty to manage matters related to jail personnel like their transfer, promotions and also for making and sanctioning the plans for prison department. The IGP keeps connection of the department with the state legislature as well as with the other departments of the state. He keeps vigilance on the subordinate personnel like superintendents, jailors, warders and has to implement various reformation processes through them. So The InspectorGeneral should be a man of high integrity and dedication. The success of the prison system in any state depends upon the implementation of the rules by the prison staff, because they have to directly interact with the inmates. The state prison is basically divided into two types, Central prisons and district

174

jails/subsidiary jails. Along with it they are further categorized into reformatory institutions for young offenders and woman reformative centers, open air camps etc. The organizational structure of a central prison generally consists of one Superintendent, one Deputy Superintendent, two or three jailers, five to seven Deputy Jailers, five to seven Assistant jailers, one Matron, Head Warders and warders depending upon their sanctioned strength, one or two Female Warder, one medical officer and a nurse,. The establishment of the district jails or subsidiary jails ordinarily consists of one Superintendent, one jailer, one to two Deputy Jailers, one to three Assistant jailers, warders according to the strength, one Female Warder, one Assistant Medical officer and one nurse. The Superintendent is the head of the jail establishment and subject to the orders of the Inspector General of Prison manages the prison in every matter of discipline and control. The superintendent is assisted by a Deputy Superintendent in the central prison and a jailer in the district jail/subsidiary jail. They are the main executing officers of the prison and control the whole system according to the orders of the Superintendent. Officer under the Deputy-Superintendent in the central prison is jailer who supervises and controls the work of the clerical establishment. Jailors are appointed by the state government either through promotion or direct recruitment by way of written examination. He is bound to reside inside the jail unless he gets written permission from superintendent to reside outside. The jailer is responsible for the safe custody of the records to be kept under him3or the commitment warrants and all other documents confined in his care, and for the money and other articles taken from prisoners. Prisons, as a correctional institute setup for the Criminal Justice Administration throughout the world, plays a key role in justice delivery system. They are meant, both for the incarceration of convicts, as well as for 3

Section 12 prison act 1894,

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providing custodial care to the under trials. In our country the prisons constitute the largest area of penal administration. There are around 1,300 prisons of various categories, which house over three times the population of the offenders and in Indian context; the State’s functions are divided into Central and State subjects. Prisons are essentially State subject. Thus, the Management and the Administration of prisons are controlled by state. But, presently institution of prison is in critical state. They are marked by subhuman material conditions, overcrowding, and lack of sensitivity, weak motivation and mass corruption amongst the prison functionaries. The main reasons for such a state of affairs are: (1) prison has become political and social entity, (2)absence of transparency in the prison system in (3) lack of training and refresher courses for the prison authorities and staff. 4.7.2 Growth of the Modern Prison System The Present prison system in India is a British legacy. It was an indigenous creation of the colonial rules over our indigenous penal system with the prime motive of making imprisonment “a threat to offenders”.To look into the procedure regarding the internal management of prisons with a view to uphold the rights of the prisoners and the development of prison staff in

terms of custody,

security institutional discipline,

institutional

programmes for the specialized treatment of women, adolescents, children and mentally sick person, staff recruitment and training and to suggest measures with a view to develop prisons as correctional institutions prison manual has been enacted which throws light upon issues related to prison. 4.7.3 Prison Architecture The security management should be such that the Deputy Superintendent, Assistant Superintendent and Guards will be responsible to ensure that no ladders, planks, bamboos and the ropes, which are likely to facilitate escape, are left lying about. If such materials are to be taken inside 176

for use, these would be properly escorted and will be sent out of the prison after use. Every Warder in charge of a workshop will be responsible to see that all such articles are properly kept secured and put away when work ceases and give a certificate to that effect in the lock-up register. Prisons will be run on the base of the dynamic security. Dynamic security depends on the use of alternative methods for which interaction with prisoners will be a prerequisite to make them aware of what is going on and to ensure them that they are being kept in safe and humane environment. It is not only the means of preventing escape, but also maintaining constructive relations with prisoners. The staff will also be made to understand that the security not merely implies guarding the wall and the fences, but also action engendering a sense of protection and mutual trust. Thus, these are certain trends to be followed by the prison officials for the management of security of prisons and custody of prisoners. 4.7.4 Armed Sentry  The watchtowers at the main gate will be guarded by armed sentries and other portions of the prison will be guarded by warders without arms. The warder establishment that would supply the sentries and guards to the internal and external posts. All of the guards and sentries would work or do their duties in the shift rotations.  Armed sentries perform duties in two hourly shifts. It is the duty of a sentry, both in day and night, to challenge all the unknown or suspicious persons approaching to his beat, forbidding them to approach nearer unless they can satisfactorily account for themselves or, at night, give the password. No any convicts would be permitted to approach within 5 meters of any sentry. It is the duty of a sentry to resist all attempts to break into or out of the prison or of any part of it and to prevent the escapes or illicit communication with prisoners. At night every sentry report to the Patrolling Officer if anything 177

suspicious or unusual comes to his considerations. He would give the required assurance that all is well each time of the Patrolling Officer passes by.  The sentry, on his duty, will carry the required arms & ammunition, which will later be handed over to the relieving sentry. 4.7.5 Guarding Establishment Moreover, it has been suggested that there will be guarding establishment in every prison, responsible for the guarding of the prisoners, prison premises, gate and carrying out any other duties, which will be assigned to them. The guarding establishment includes the Warders performing their duties in rotation. In all the Central and District Prisons, there will be a reserve guard consisting of 8-20 Warders, who have undergone commando training, with use of modern weapons. Maintenance of the duty roster is must by the prisons to keep a check on the duties assigned to the Guards or the Warders. Moreover, another important fact for the security of the inmates is that there are various categories of prisoners like there are some, who are very ferocious ones and others may be weak, thus, it is suggested that the violent prisoners should be kept separately and they should not be kept with the weak ones to avoid any kind of fights in the prison 4.7.6 History Tickets of the prisoners Every prisoner shall, immediately on his reception into prison, be provided with a History Ticket which shall be maintained, in the manner hereinafter provided, throughout the period during which such prisoner remains in confinement Maintenance of the proper History Tickets for the prisoners should also be done and it shall go with the prisoner wherever he is transferred from one group to another. Another crucial aspect under custodial and security 178

management is the issue of custody of arms and it is necessary for the officers concerned to make sure that the arms are never left within the reach of prisoners. All necessary arms when not in use should be kept in the guardroom. 4.7.7 Security & Custodial Management Most of the inmates prefer a quiet, clean and orderly prison where they can serve their time in the safe environment. A proper security can ensure inmate safety and provide staff with good working conditions. Thus, this is required for both the inmates and the officers on duty. Secure custody of prisoners is the primary responsibility of the prisons. Further, the prison custody implies certain restrictions on the basic human rights of prisoners as basic human being under the process of incarceration that prisoners are required to undergo. There are certain norms in respect of security and custody in prisons, which say–  That the security measures should be adopted in accordance with the specific requirements of each prison.  Secure walls, the building gates, barracks, hospital areas, cells and the other places, daily inspection on the same and proper maintenance of prison building and premises.  An arrangement of good lighting inside and around the prison.  A system of comprehensive searches of all incoming and outgoing prisoners. Daily searches and periodical surprise searches of all prison sections on equipments.  Entire system of counting the prisoners.  A system of custody and control inspection of locks. Keys, handcuffs and other security equipment, maintenance and service of all security equipments. 179

 Watch towers, wherever necessary, to watch inside and outside of the prison, to be constructed and searchlights and binoculars made available.  Untrained personnel not to be posted inside of the prison, the prison premises, under any circumstances for guarding purposes.  A system of thorough search for unearthing explosive and narcotic substances among prisoners. 4.7.8 Maintenance of the Prisoners Certain guidelines are provided for the maintenance of prisoners by the Model Prison Manual, which includes directives regarding food, clothing, hygiene, education and recreational facilities .it also includes grant of proper and adequate wages to the prisoners in accordance with the work undertaken. Prisoners should be provided the proper nutritious diet with special care to pregnant and nursing women. In case of R.D. Upadhyay v. State of Andhra Pradesh (A.P.) & Ors.,the Supreme Court gave certain directives regarding women prisoners and their children. Some of them were:–  A child of the women prisoner shall not be treated as an under trial convict while in jail with his mother. Such a child is entitled to food, shelter, medical care, clothing, and education as a matter of right.  Women prisoners with children should not be kept in the sub jails, which are not equipped to keep small children.  The stay of children in crowded barracks amidst women convicts, under trial and offenders relating to all types of the crimes, including violent crimes, is most harmful for the development of their personality. Therefore the children deserve to be separated from such environments on the basis of priority. 180

4.7.8.1 Food ration Every prisoner shall have three meals a day according to the scales prescribed. These shall be: i. A light meal in the morning before the work starts; ii. A midday meal after the work; and iii. An evening meal, before prisoners are locked up for the night. The quantities of ration to be issued for each meal should be as prescribed by the Inspector General. The articles of diet provided for the midday and evening meals may be suitably divided between the two meals as well. Varieties in the diet may be introduced by issuing different kinds of the pulses, vegetables and antiscorbutics on different days of the week or for different meals. The Superintendent may lay down the menu for different days of a week.On the occasion of the festivals, as specified by the State governments, extra items of the dietary items may be given to every prisoner.also who observe religious fasts may receive extra articles of food, or may have the whole or a part of their meal at a place and time of day, as may be allowed by the orders of the state government for proper observance of fasts by them. 4.7.8.2 Scales of diet The scale of diet for prisoners may be prescribed by the State Government. Due consideration is to be given to the principles mentioned above, to the classified needs, habits and modes of living of the prisoners in the jails and the climatic conditions of the place, while prescribing the scale of diet for the prisoners. The State government may also modify the scales at any time if it seems fit.

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No any reductions or alterations in the prescribed diet and scales should be made except under special circumstances and with the prior approval of the Inspector General. If, on the recommendation of the Medical Officer, the Superintendent considers the prescribed diet to be unsuitable or insufficient for a prisoner for reasons of his health or his peculiar mode of living, he may order, in writing, a special diet, or add extra calories in the diet of such a prisoner, subject to the formal approval of the Inspector General (IG). 4.7.8.3 Hospital diet A suitable hospital diet may be prescribed by the State Governments according to local food habits on the advice of Medical Officers or Medical Officer (in charge). When meat is recommended by the Medical Officers as an extra diet to the prisoners, the weight of meat should ordinarily be taken without bones. 4.7.8.4 Cleaning, Storage and Issue of Food Items  Care must be taken to see that all the grains are properly cleaned before issuing to the mill-house for grinding and that the flour is carefully sieved and kept in covered bins.  Rice must be separated from husk, dust, or other particles, before issuing for cooking. The qualities and seasoning of rice should be such that the weight of the cooked rice is about 3 times its weight in uncooked state. This should be tested many a times by weighing.  All items of diet, as well as the fuel for cooking, shall be weighed daily at the time of being issuing to the cooks by a responsible officer not below the rank of an Assistant Superintendent (AS), especially appointed for the purpose of supervising. They shall be issued in the

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fully prepared state or, if this is not possible, with a full allowance for any loss which might occur during the preparations. The Superintendent shall, however, be responsible for seeing that the correct weight and the quality of the ration are issued or not. Medical officers should always check the qualities of these items.  Where chapatti/bread is given to prisoners, the same should be prepared in prescribed weights for different classes of the prisoners, and cooks must be informed before the hand of the prescribed weights. daal should be husked and unhusked grains properly and cleaned out before cooking.  Vegetables issued should be free from stalks and leaves and all others particles and should be cut for cooking before being weighed and delivered to the cooks. Potatoes or other root of vegetables should form at least one-third of the total quantity of the vegetables. All vegetables should be examined daily by the Chief Medical Officer or his subordinate Medical Officer.  An allowance of 25% extra, should be given for heads, tails, fins, scales and entrails when whole fish is issued and for bones when mutton is used.  Antiscorbutics in the requisite quantity that should be issued daily with the midday and evening meals to all the prisoners as well. There should be standing instructions for the preparation and issue of various types of antiscorbutics which are commonly available.  Milk shall be stored in a properly cleaned and well-ventilated place. Milk should be issued to prisoners on special or medical diet only after boiling. Boiling should be done in the hospital enclosure under

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the supervision of a responsible officer who should be responsible for its proper usage from the time it is obtained till its final distribution.  For preparing the curds no water should be mixed with the milk before boiling. 4.7.8.5 Distribution and service of food  Inspector General of Prisons shall prescribe the time for serving morning, mid-day and evening meals in prisons.  Meals must be served with as it is fresh and hot. The eligible used for carrying food, should be provided with well fitting lids. All food should be carefully protected from the flies and other types of insects.  At least fifteen minutes before the distribution of meal, a bell must be sounded. Prisoners should then cease work, wash their hands and face and queue up for food distribution, after which the cooked food should be distributed by the cooks in the presence of a responsible prison officer not below the rank of an Assistant Superintendent. They should see that the food issued to any prisoner is not taken away by another or is otherwise wasted.  After service of foods at least twenty minutes of time should be allowed to the prisoners to eat the food.  Except with the permission of the supervising the officer, no food is to be taken away from the dining area by any prisoner to eat it elsewhere.  When the meal is finished, the prisoners should proceed to the washing platform where two tubs should be placed. The prisoners should put any refuse food left in his plate into these tubs, separating rice or chapattis from curried food. They should then wash their hands and mouths as well as their utensils.The floors and platforms should be cleaned immediately after the prisoners finish their meals 184

4.7.9 Clothing Every convict under sentence of Rigorous Imprisonment or of Imprisonment for Life shall be required to wear prison clothing as prescribed in these rules that should be supplied with prison bedding. Other prisoners, such as under trial prisoners and detenues, shall be supplied with clothing and bedding if they make an application to the Prison Superintendent for this purpose. Such clothing should be of a color different from that issued to the convicts, so that the distinction between convicts and other prisoners is visible. The State will fix the scale of clothing and bedding accordingly the change in climatic conditions taking into account security and discipline of the prison. Moreover, a day for weekly maintenance and inspection of the clothes and bedding of the prisoners should be decided and the prisoners should also be made to wash their clothes once a week. 4.7.10 Cleanliness and Hygiene Regarding the cleanliness, all pits and pools of the water stagnant, near the prison shall be covered or filled up. Open drains, if any, around the prison shall be carefully attended to and drainage in the prison should be underground, drainage cuts should be cleaved wherever necessary to prevent accumulation of water all which should be connected directly to the public drainage system. Toilets should be properly cleaned and the drainage system should be well-managed. The cells of the prisoners need to be cleaned on the appropriate intervals as per the guidelines of the Model Prison Manual. Hygiene of the prison as well as the prisoners must have to be kept in mind for the proper management of prisons. 4.7.11 Medical Facility In Prison Due attention has to be given to the medical facility provided to the prisoners. There must be a hospital fulfilling all the basic requirements within the compounds of the prison. And, a Medical Officer should be 185

appointed specially for the prisoners. Special attention needs to be given to the drug addicts and such prisoners should be kept separately, so that they may not influence the other prisoners. 4.7.12 Wages To Prisoners The prisoners must also be provided with adequate wages in lieu of work undertaken by them. Several appeals were filed by State Governments challenging the judgments by the respective High Courts on the issue of prisoners’ wages. The State Governments were with the agreements with the view that the present rates of wages paid to prisoners are too meager and hence, they must be enhanced. Use of Weapons against Prisoners Any officer or member of the guarding staff, of a prison may use the bayonet, or any other weapon, against any prisoner when he is found to be: a. Escaping or attempting to escape, and if the officer or any member of the guarding staff has reasonable ground to believe that he cannot otherwise prevent the escape b. Engaged in any outbreak or attempt to force or break open the outer gate or enclosure wall of the prisons individually or collectively, provided that he may use the weapons only if such an outbreak or attempt continues. c. Using violence against officers of the prison or other persons, provided that there is reasonable ground to believe that the officer of the prison or any other person is in danger of loss of life or limb or that serious injury is likely to be caused to such officer/person Before using firearms against prisoner, the officer, or the member of the guarding staffs, that would give a loud and clear warning to the prisoners that he is about to fire on him. 186

No officer of the prison will use arms of any sort against a prisoner in the presence of his superior officers, except under the orders of such a superior officers, or if it is in self defence.In all of the cases requiring the uses of the force only minimum force, in the given circumstance, shall be used. 4.7.13 Inmates Management The most and important fundamental goal of every jail is to maintain a safe and secure environment for inmates, staff and visitors. Effective management of inmate behavior is critical to achieving this goal. Traditionally, the jails ought to control the inmates solely through physical containment, namely, hardware - locks, steel doors, and security glass and alarm systems. Staff safety was believed to depend on maintaining physical barriers between staff and Prisoners. In the absence of the staff management of inmate behavior, however, the emphasis on physically containing inmates failed to keep jails secure. With inmates left to their own devices inside cell blocks, problems, such as violence, vandalism, and lack of sanitation became so common that they seemed inherent to jails, which, along with the communities, have paid dearly for these problems through costly litigation, staff and inmate deaths, jail riots and fires and escapes. Over the past years, the jail practitioners have learnt that jails do not have to be and should not be out of control, dangerous or filthy. Ample evidence shows that the control of the jail could be established through effective management of inmate behavior. There must be a combination of inmate management philosophy with a specific jail design that conveys an expectation of the positive inmate behavior, facilitates staff interaction with inmates, and promotes management of inmate behavior. also that the Staffs are able to interact extensively with all the inmates and provide continuous supervision.

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4.7.13.1 Staff Management The successful implementation of the correctional programs for the prisoners mainly depends on the quality of the prison staff at various levels. The most crucial factor which, if unfulfilled, could adversely affect the proper management or functioning of the prisons, is lack of trained staff. As we all know, the problems of overcrowding persists in the prisons all over the country and compared to that the prison staff on duty is very less. The two major problems are inadequate number of the prison staff and lack of well-trained prison staff. Thus, it is necessary for the proper management of prisons that well-trained people should be appointed, which are well-versed to tackle any kind of the problems or emergency that may turn up within the jail premises. 4.7.13.2 Training of prison staff Qualified technical personnel should be appointed in the adequate numbers in every production unit and for every program of the vocational training. Such personnel could be posted in the prison on a transfer cum deputation basis from the Industrial Training Institutes of the State. In Tihar, the newly-recruited prison staff undergoes comprehensive training at Delhi Police Training School/College. The training of the personnel is of the paramount importance in a system of scientific Prison Management of modern times. A properly trained staff would always be an asset in the effective implementation of correctional policies and programs. Only prison personnel especially trained for the job and genuinely devoted to the cause of reclamation and rehabilitation of prisoners, can lead them to the cherished goal. Much emphasis should be given on training in the correctional work rather than on the security based training of the prison personnel. In the case Overcrowding of the prisons also accelerates this problem as then the workload of security staff also increased, hampering their ability to control

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crime and violence in the prisons. To be an efficient unit and the centre for protection and the correctional treatment, a prison must essentially be a scientifically manageable unit. Training of Prison personnel has remained woefully neglected in India. This is much essential not only for ensuring the efficiency, financial discipline and control, but also for minimizing corruption in department and proper management of the prison system. The Draft of the National Policy on Prisons formulated by All India Committee on Jail Reforms of 1980-1983 mentions that prison service shall be developed as a professional career service.The State shall endeavor to develop a well-organized prison cadre based on appropriate job requirements, sound training and proper promotional avenues. Efficient functioning of the prison depends undoubtedly upon the personal qualities, educational qualifications, professional competence and character of prison personnel. The status, emoluments, and the other service conditions of the prison personnel should be commensurate with their job requirements and responsibilities. An All India service, namely, The Indian Prison and Correctional Service should be constituted to induct better qualified and talented personnel at the higher echelons. Proper training facilities for the prisons shall be developed at the National, Regional and State levels. 4.8

MOVEMENT TOWARDS REFORMATIVE APPROACH Reformative Theory of punishment has achieved worldwide support

in recent years and all civilized nations and more particularly socialistic and the democratic countries of the world have adopted various measures and statutory enactments, to apply correctional method of punishment. Reform the criminal and not punish him, is the consensus of the opinion of the modern Criminologists all over the world these days. The modern criminal jurisprudence has emphasized that no one is a born criminal. Man turns into a criminal by force of the circumstances like abject poverty and the other circumstantial and environmental conditions, and not by choice. Thus, 189

Reformative Theory of Punishment is more applicable to a civilized society. Release the offender on probation is one kind of Reformative process – whereby the needs of the community are balanced with the best interests of the offender. 4.8.1 Probation Laws Introduction about the probation has been given in the very first chapter of this thesis. The probation laws that appears to be the enactment of Section 562 in the Criminal Procedure Code, 1898 and when, in 1974, Code was recast and freshly enacted as the Criminal Procedure Code, 1973, this provision is dealt in Section 360. In 1958, in pursuance of International Agreement, Indian Parliament enacted the comprehensive law – Probation of Offenders Act, 1958. Before passing of this Act of 1958, the only Central Law on Probation was contained in the Section 562 of Criminal Procedure Code, 1898, which ceased to apply after the passing of Probation of Offenders Act, 1958. Besides, the Juvenile Justice (Care and Protection of Children) Act, 2000 also provides for the release of children, who have committed offences, to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or fit person executing a bond, with or without surety or any fit institution as the Board may require for the good behavior and well being of the juvenile for any period not exceeding three years. 4.8.2 Object of Probation Laws The object of the Probation of Offenders Act, 1958 is to prevent the conversion of the youthful offenders into the dangerous criminals of matured age, in case they are sentenced to undergo substantive imprisonment in jail. The above object is in consequence with the present trend in the field of Penology, according to which the efforts should be made to bring about 190

correction and reformation of the individual offenders not to resort to retributive justice. But, there was not any provision for this reform, rehabilitation and supervision in the Code of Criminal Procedure. Passing of Probation of Offenders Act indicates that something more was required than just letting a person off, in order to reform and rehabilitate him. 4.8.3 Principles and Practices for Probation Laws4 Are the key sections of the Act to deal with probation in India. Section 3 of the Act, what deals with the power of the court to release certain offenders after the admonition. This section is applicable to the first offenders and it is discretionary in nature. The court has to consider the circumstances of the case, that includes the nature of the offences and the characters of the offenders. Section 4 of the Act, what deals with power of the court to release certain offenders on probation of good conduct. According to this section in the case of a person, who is less than 21 years of age and is convicted for an offence not punishable with imprisonment for life, he shall not be sentenced to imprisonment unless there present the reasons, which justify such a course. The object of the pre-sentence report is to appraise the court about the character of the offender, exhibit his surroundings and antecedent and throw light on the background, which prompted him to commit the offence and give information about the offender’s conduct in general and chances of his rehabilitation on being reason on probation. Before deciding by the court whether the accused should be granted benefit of Probation Laws, three aspects are to be kept in mind – circumstances of the case, nature of the offence and character of the offender. An inbuilt safeguard is provided in the sub-section (2) of the Section 6 that when the court is considering the third aspect, i.e. character of offender, then 4

Sections 3 and 4 of Probation of Offenders Act, 1958

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before the court forms its opinion adverse to the offender in that regards it must seek a report from a Probation Officer or get any other information that is available relating to the character and physical and mental condition of the offender. The Juvenile Justice (Care and Protection of Children) Act, in 2000, also provides for the report of the Probation Officers or recognized voluntary organizations to be considered before passing a sentence. A Magistrate who is appointed as a Member of the Board constituted under this Act must know something of child psychology. The Board can pass orders against the youngsters. The Act provides for the setting up of the Observations and Special Homes by the State Government where the juvenile could be placed. Here, the rehabilitations and social integration of the children would take place. It also provides for an aftercare programme, which would take care of the delinquent child after he has been discharged from these homes, that was based on the report of the Probation Officer. The Probation Officers have been appointed under the Probation of Offenders Act, would also function under the ephemeral Justice (Care and Protection of Children) Act. 4.8.4 Criticism against the Concept of Probation If offenders are not punished suitably and adequately, the faith and confidence of public in Criminal Justice System is bound to erode and the tendency to obey the law would be decreased gradually, which would not be good for the society. But, if offenders are punished according to the gravity of the offence, then the people would think twice before committing the offences again, rather they will follow law strictly and also the convicted person after punishment will hesitate to commit it again. Before applying Probation Laws, this matter should be considered. Some of the criticisms are given below:

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a) There is an impression and feeling among the people that the Probation Law is an easy let-off of the wrongdoer and it is a form of the leniency shown to the offender and not a punishment. This opinion of the public mind is so true when the offender is released after admonition. In past where an offender was released on admonition by the courts under Section 562 of the Criminal Procedure Code, 1898, it had definitely a statutory impact on the offender so as to correct himself, but in this era of Modernization, Globalization, growth of Industrialization and expansion of Cities and Metropolises with the rapid expansion of population, it is very hard to say that release of an offender after admonition would at all serve any useful purpose and achieve the object of law for reformation of the offender. Generally, no agency outside the court maintains the record as to how many persons are released after the admonition under Section 3 of the Act except there are some entries in the records of the Magistrate lying in a dusty corner. No one has bothered to enquire, ascertain and bring it to the notice of the court about the subsequent conduct and attitude of the offenders, who was released after the admonition by the court. Actually, in real practices, the admonition has absolutely no impact nor it brings about the desired result on the life and activities of the offender. b) Section 3 of the Act has become a dead law in the statute book as it has outlived its services with the changing patterns of the society with its new socio-economic dimensions. It is accepted proposition that the law must be in conformity with the changing of the social forces. This Act was enacted near about 150 years back, might not be able to respond to the needs of the present-day society. The offences, like theft and cheating are generally made by planning and not by sudden impulse. These are in the form of economic offences and cannot be treated liberally in view of the fact that the offences of the theft and 193

cheating are on the increase and are against the interest of the protection of society mainly because mere release with admonition does not strike such a terror in the mind of the offender that he will not commit it again. c) In spite of the statutory provisions, as already mentioned earlier for awarding compensation to the victim, who has suffered humiliation, indignity, loss of reputation, loss and damage to his property and injury, both the physical and mental, and even loss of the life sustained by the offender, the court in very rare occasion award compensation to the victim. The offenders are released without grant of any compensation to the victim of the crimes. In very rare cases, the State should also be considered to be the victim or aggrieved party. If actually the State is aggrieved, it is the duty of the State to punish the wrongdoers and also at the same time, to protect the victim by duly compensating him for the loss and damage. In a Welfare State, it is the duty and responsibility of the State to reform the criminals by applying the reformative laws, like Probation Laws, but at the same time, the necessity to adequately compensate the victim of the crime cannot be overemphasized. d) It is not only a matter of experience, but it is the human feeling and sentiment that the aggrieved party, who has suffered loss and injury to his person and the property, is never satisfied with admonition of the accused by the court, but he is always concerned about grant of compensation in some form or other. So, in the era of reformation of criminal and new sentencing policy, the practice of releasing the offender after admonition under Section 3 of the Act without grant of compensation to the victims would not serve the object of laws, and also it has no reformative impact on the offender as well as the society. e) Actually, the Section 3 of the Act is also applicable to the initial offenders and it is discretionary in nature. The court has to consider 194

‘the circumstances of the case, including the nature of the offence and the character of the offender’. But, the most interesting provision of this section is, it does not require the court to call for a report from the Probation Officer. f) Unfortunately, Section 3 of the Act does not make any provision to call for a report from the Probation Officer and to consider the reports while dealing with the offenders – which is a serious lacuna in the Act. Even if the object of Section 3 appears to be noteworthy, in absence of inbuilt safeguards, the lawbreakers can escape from the punishments by invoking to Section 3 of the Act. g) Though, under Section 12 of the Probation of Offenders Act, it is provided that the offenders released on probation will not suffer any disqualification attaching to conviction in his employment, yet it is revealed that this provision is not followed in private sector even in some Government Organizations. h) There is much confusion among the Judicial Officers that both the provision of Code of Criminal Procedure as well as Probation of Offenders Act could be applied simultaneously. The root cause for this appears to be the predilection of the Trial Courts for the Section 360 of the Code. The Trial Courts seem to have taken the belief that the provisions of Section 360 of the Code can be equally used in place of provisions of the Act. They find it simpler, easier and perhaps less cumbersome and time-consuming than the provisions of the Acts and a strong tendency has, therefore, grown to rely more and more on the provisions of the Section 360 of the Code. The provisions of the Section 360 of the Code have no application in the States or parts thereof where this Act is in force. So, where the provisions of the Probation of the Offenders Act are applicable, the employment of the Section 360 of the Code, 1973 is not to be made. The Supreme Court 195

also in this regard makes this provision clear. In Chhanni v. State of Uttar Pradesh5 our Apex Court held that where the provisions of Probation of Offenders Act have been brought into the force, the provisions of Section 360 of the Criminal Procedure Code, 1973 are wholly inapplicable. Despite the Police reforms, the police remain in the dark about the correctional laws and the goal of the probation system in Criminal Justice System. Most of them having no faith in the probation system and, therefore, they harass probationers by exercising their arresting power on the suspects. They even threaten the probationer to make an adverse report, if the probationers do not fulfill their illegal demands. 4.8.5 Suggestions for Effective Probation Laws There is lack of subordinate judicial willingness and awareness in India due to which probation laws have not gained the momentum which was expected by legislatures. Lower judicial officers are reluctant to adopt the provisions of probation of offenders act. Here are few suggestions listed herewith , which may be implemented at the legislative and administrative level, for more effective probation laws in India:  The exception to Section 4 of the Act mentions that for availing benefit of probation regular place of living or occupation is required from offenders or their surety. Due to poverty and illiteracy it is not possible for large section of society to fulfill these conditions. So there is need to amend this mandatory condition. The provisions of probation of offenders act be amended so that probation can be given easily on the lines of section 360 of criminal procedure code.

5

[2006 Cri.L.J. 4068 (SC) : (2006)2 SCC(Cri) 466],

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 More deeply the provisions of the Probation of Offenders Act and the Code of Criminal Procedure could be amended to make them simpler and detailed like the Juvenile Justice (Care and Protection of Children) Act 2000, which mentions various reformative techniques for example shelter homes, setting up of the observation homes etc.  The work of probation officer is not taken seriously in India. there is lack of probation officers in almost every state, sometimes these duties are allotted additionally to other government officer .there is urgent need of recruiting suffient officers so that more officers are available for supervision of offenders.  There is provision of ordering compensation from offender to victim in probation laws but these has become a bookish rule only as judicial officers are reluctant to adopt this provision. This is need of our that awarding the compensation must be made practice.  A thorough national and state level training curriculum for the staff related to probation must be made which should stress upon rehabilitations and reforms in prison administration. These trainings programs much include the Guidelines mentioned by various international covenants. As the Prison managements are most of the theoretical appraisal methods for the prison system. But the modern perspective for the prison system what may be most significant for prison staff as well as prisoners. For this an innovative techniques have been developed for the prison system. This technique would be most appraisals as per the modern perspectives. So in the next section we would study about the innovative techniques for the prison system.

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4.9

TECHNIQUE FOR THE PRISONERS AND PRISON STAFF IN INDIA Equilibrium thinking is the best technique for the prison system for

prisoners and prison staff. Most of the prisoners in any prison system are in for having committed crimes of passion, namely, due to anger or revenge or jealousy or fear. They continue to suffer from such passions while they are incarcerated. Hence, any intervention, while they are in the custody, should be addressed to heal them of such infirmities. Every society with the dawn of the civilization, that came up with its own normative rules and legal codes for its proper functioning. If the members follow these rules, then it would bring about a situation through which the society could attain the social unity, conformity and cohesiveness in its social system. Majority of the persons conforms to the norms and the laws, which is the process of socialization by the society or social groups. Some of the members go astray from the rules and norms due to maladjustment and other factors and show their resentment to the measures of social control. They violate the codes of the society. The challenge of maintaining the harmonious relations between the persons and society - a perennial issue for mankind - has got aggravated during the present times. Institution in Prison Prison Institution and Correctional Administration is one of the three main constituents of the Criminal Justice System. With the change in the perception towards the prisoners, prisons are no longer been considered only as a place for punishment. Instead, they are considered as reformatories and great attention is given to ameliorate the conditions of the jails, so that, it has a healthy impact on prisoners in developing positive attitude towards life and society. Pioneering work in this regard was done by Dr. Kiran Bedi as Head of the Tihar Prison administration

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Prisons are considered as small societies and studies of prison life have detailed the existence of prison sub-culture, replete with inmate values, social roles, and lifestyles. Prison sub-cultures are very influential and it must be reckoned with in both the inmates and staff. Complicating life behind bars are the numerous conflicts of interest between inmates and staff. Lawsuits, riots, and frequent grievances are symptoms of these differences. Problems, which exist in conventional society, are mirrored and often magnified inside of prison. HIV-infected inmates, the geriatric offenders and the mentally ill-all constitute special groups within the inmate population which requires additional care. Crime does not stop at the prison door, nor does rehabilitation automatically begin. If we expect the prisons to meet the demands of the rehabilitation and reformation, we must be willing to solve the problems of the prison first. Equilibrium Thinking Equilibrium Thinking is a simple, skilful method for studying the self motivation and self-changes in a person (subjective experience) – the process people use to build their unique, distinctive characteristics. Equilibrium Thinking is a practical and dependable method for developing and expanding one’s own behavior, so that effective way of living can become a matter of conscious choice. In general terms, Equilibrium Thinking is about how people think, feel, learn, motivate themselves, interact with others, and makes choices to achieve realistic goals through the processes of auto commands. Equilibrium Thinking is an approach to overcome one’s negative feeling in life. Objective of Equilibrium Thinking is to increase the behavioral choices available within us. The simple binary concept in Equilibrium Thinking is “Be at it, beat it”. This concept gives more emphasis to the

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choices and possibilities we become aware of and make available to ourselves, through this we can become aware of and be able to fulfill our desires. By identifying the causes that could lead to many problems in life, one can follow the simple technique of Equilibrium Thinking to overcome one’s frustrations, tension and anxiety. This paves the way for the human beings to understand the life in a better and healthy way. This challenges the behavior of the individual to maintain cordial relationship at home, workplace, friendships and relationships. These cognitive-perceptual patterns results into emotional balance and approved behaviors. By the development of these skills, an individual can usefully organize and reorganize his or her subjective experience, as well as having the opportunities of enabling others to usefully organize and reorganize their subjective experience.

4.10 A WORLDWIDE COMPARISON OF THE PRISON SYSTEM 4.10.1 United States of America 4.10.1.1 Constitutional Rights of Prisoners The Eighth Amendment to the United States Constitution protects citizens against cruel and unusual punishments. In terms of prisoners' rights, this protection requires that prison officials afford inmates certain minimum standard of living. Additionally, prisoners retain some other Constitutional rights, including due process in their right to administrative appeals, freedom of religion, equal protection under the law (at least, as compared to other inmates), and a right of access to the parole process. Courts have held that the Equal Protection Clause of the 14th Amendment has been held to apply to prison inmates so prisoners are protected against discrimination or unequal treatment based on race, sex, religion, age, national origin, and creed.

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Other courts have held that certain “penumbral” rights, or rights that are not explicitly granted by the constitution, also apply to prisoners. This includes the right to reproduce, right to medical attention, and others. 4.10.1.2 Other Rights of Prisoner Additionally, the Model Sentencing and Corrections Act adds additional, explicit protections against discrimination. It provides that a confined person has a protected interest in freedom from discrimination on the basis of race, religion, national origin, or sex, and should have limited rights to speech and religion. 4.10.1.3 Courts and Prisons Courts are usually very reluctant to limit the discretion of state prison officials to classify prisoners i.e. designate them as maximum or minimum security, solitary confinement, and so forth. Indeed, the U.S. Congress has given federal prison officials complete autonomy in controlling prisoner classification as relates to the conditions of confinement. In other words, such determinations are generally left to the control of the Federal Bureau of Prisons. Similarly, courts tend to give broad deference to prison officials regarding prisoners' rights. For the most part, so long as the conditions of a prisoner's confinement are within the sentence and do not otherwise violate the prisoner's constitutional rights, the due process clause of the U.S. Constitution is not triggered and does not require judicial oversight. 4.10.1.4 Standards of Review for Prison Decisions When prisoners' rights are in question, and judicial review is required, one of two standards are followed. In cases impinging on an inmate's constitutional rights, the strict scrutiny test applies. Strict scrutiny is the most stringent standard of judicial review used by U.S. Courts. In order to pass the

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strict scrutiny test, the prison's actions or policy must satisfy three tests: (1) it must be justified by a compelling governmental interest, it must be narrowly tailored to achieve that goal or interest, and it must be the least restrictive means for achieving that interest. For cases that do not relate to violations of an inmate's constitutional rights, the strict scrutiny test does not apply, but rather, the rational relationship test is used. This is the lowest level of judicial scrutiny, and merely tests whether there is a rational relationship between the action or policy and a legitimate state interest. following agencies are entrusted with prison administration in America. a) American Jail Association b) Bureau of Justice Assistance c) National Institute of Corrections d) National Institute of Justice Federal Bureau of Prisons The Federal Bureau of Prisons (BOP) is the agency in charge of ensuring federal correctional facilities are safe, humane, cost-efficient, and appropriately secure. They are responsible for more than 200,000 inmates and nearly 40,000 employees. Federal Correctional Facilities There is a unique feature of prison administration in U.S which provides a channel for submitting any grievance relating to prison conditions. One has to follow the process to file a complaint about Bureau of Prisons (BOP) facilities. This includes complaints about a particular facility, policy, procedure, or allegations of abuse.  To file a formal complaint directly with the facility in question.

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 To file a complaint with the BOP Regional Office that oversees the facility in question.  To Contact BOP Headquarters in the District of Columbia, or the Department of Justice - Office of the Inspector General, the agency that oversees the BOP. 4.10.2 United Kingdom The prison administration is governed according to The Prison Act, 1952 which lays down detail procedure for prison setup and the system. There may be five formal commissioners as head below whom there are many subordinate officers like inspector and a governor, a medical officer and such other officers as May needed at each prison. Basic features of act are: (a) In a prison used for both men and women separate buildings or parts of a building shall be used for the men and for the women respectively so as to prevent the one from seeing or communicating with the other. (b) There is no provision of corporal punishment except in some exceptional cases. (c) If prisoner's health is poor or undesirable to detain him in prison, conditional temporarily release order may be given (d) If a prisoner is discharged from prison, the commissioner may provide him remuneration through governor of that prison. (e) If it appears to the Secretary of State that a person serving a sentence of imprisonment is under twenty-one years of age and might with advantage be detained in a Borstal institution he may, authorise the Prison Commissioners to transfer him to a Borstal institution.

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Some of the practical reforms which have developed in the U.K are: 4.10.2.1 Arrival at prison When someone arrives at prison they have at least one interview and assessment so that they:  Understand prison rules and procedures  Know what their rights are  Are told of courses available in prison  Get the right healthcare and treatment facility The prisoner gets a prison number and their property is recorded and put somewhere safe until they’re released. 4.10.2.2 Security categories Prisoners are given a security category based on:  How likely they are to try to escape  Their risk of causing harm to other prisoners and prison staff A prisoner may be transferred to another prison with a different security category at any time. 4.10.2.3 Privileges Prisoners who follow rules can earn privileges. This is called the ‘Incentives and Earned Privileges Scheme’. A prisoner may be able to:  Get more visits from family or friends  Be allowed to spend more money each week Privileges are different in each prison - staff can explain to the prisoner how the scheme works.

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4.10.2.4 Punishments A prisoner who breaks prison rules is normally punished. They can be:  Kept in their cell for up to 21 days  Given up to 42 extra days in prison on top of their original sentence 4.10.2.5 Rights Prisoners have rights, including:  Protection from bullying and racial harassment  Being able to get in contact with a solicitor  Healthcare - including support for a mental health condition All prisoners should be able to spend between 30 minutes and an hour outside in the open air each day. 4.10.2.6 Healthcare in prison Prisoners get the same healthcare and treatment as anyone outside of prison. Treatment is free but has to be approved by a prison doctor or member of the healthcare team. Prisons don’t have hospitals, but many have in-patient beds. Most problems are dealt with by the healthcare team. If they can’t, the prison may get an expert to visit the prison arrangement for treatment in an outside hospital. The healthcare team can ask the prisoner’s family doctor for their records, but only if the prisoner agrees to it. 4.10.2.7 Special help and support Prisoners can get specialist support in case they : 205

 Have drug or alcohol problems  Have HIV or AIDS  Are disabled or have a learning difficulty 4.10.2.8 Refusing medical treatment A prisoner can refuse treatment. However, the healthcare team may choose to give treatment if the prisoner isn’t capable of making decisions themselves for example if he is mentally ill. Wherever possible, the healthcare team will discuss this with the prisoner’s family first. 4.10.2.9 Vulnerable prisoners Prison Staff are trained to spot prisoners at risk of bullying, suicide or self-harm. The prisoner may get their own case manager who will make sure that they:  Are asked about their mental health if they are depressed.  Get regular support from a health specialist Most prisons also have ‘listener schemes’ that offer emotional support in confidence - normally from fellow prisoners. 4.10.2.10 Psychiatric hospitals A prisoner can be moved to a secure psychiatric hospital for their own safety. This only happens if they meet certain conditions under the Mental Health Act. Once the prisoner gets better, they return to prison. 4.10.2.11 Pregnancy and childcare in prison Women who give birth in prison can keep their baby for the first 18 months in a mother and baby unit. A prisoner with a child under 18 months old can apply to bring their child to prison with them. Social facility are arranged for children over 18 months to be cared for, for example applying for a place in a mother and baby unit, foster care etc. He prisoner can apply for a space in a mother and baby unit when they enter prison. An admissions 206

board will decide if it’s the best thing for the child. If there is no places in that prison, the mother may be offered a place in another unit and if there are no spaces in any unit, arrangements must be made for the child to be cared for outside prison. 4.10.2.12 Prisons with mother and baby units The following prisons have mother and baby units in u.k  Bronzefield  Eastwood Park  Styal  New Hall  Peterborough  Askham Grange 4.10.3 Prison Conditions in France The French prison system falls under the Ministry of Justice. It is governed by an Act of 1987, amended in November 2009. Before the reform, most of the rules for prisoners and operation of prisons were lower level regulations. The enforcement of sentences should enhance ‘integration or reintegration of prisoners and the prevention of recidivism, in due respect of the interests of society and the rights of victims.’ In principle, the system of prisons should be turned towards reintegration. However, the guarding mission entrusted to the prison administration still takes precedence over this. The external contacts are considered a source of danger. There are 190 prisons spread across the French territory including main and overseas territories. They are divided into several categories: Juvenile facilities- for minors (6) a) Remand prisons -for persons on remand and sentenced to less than two years (98) 207

b) Security prisons provided for long term prisoners, that is to say over 10 years (6) c) Detention centers - facilities for inmates sentenced to medium sentences (25) d) Day-leave centers facilities for persons receiving a sentence adjustment (11). e) ‘Hybrid’ structure - include several categories: remand prison and detention center, and where applicable, security prison or dayleave center (44). This type of “hybrid” structures tends to develop. The latest prisons are virtually these types of prison. The size of prisons varies considerably. The smallest has an accommodation capacity of 10, the largest 3.000. And, on average, they vary between 100 and 600 places, depending on their construction year. About half of the institutions have long history means from the 19th or the beginning of the century. It is sometimes former religious premises like convents, abbeys, etc. that have been converted in prison. These facilities are generally located in the heart of cities. The others were built at the end of 1980’s or more recently (2000s to present). These prisons are larger (300-400 places for those constructed in the 80’s and 500-600 places for the most recent) and usually located on the outskirts of cities industrial zones, etc. with poor access by public transportation. They are also designed so as to limit contact between inmates, but also between inmates and prison staff in a security perspective. Any movement within the prison implies crossing a multitude of gates and locks. These new buildings are decried by all prisoners, prison staff, external stakeholders, etc. To prevent any form of social life and thus causing tensions and violence. These prisons built since the late 80s also fall under the ‘joint management ‘means services such as laundry, food, work, vocational training, etc. are delegated to private companies. More recently, the delegations also extended to the construction 208

and maintenance of buildings. The private companies own the buildings for a 27 years period, during which the government pays rent. 4.10.3.1 Principles in France for Reforms (A)

Activities- activities, with the aim of rehabilitation according to the age, competences, disabilities and traits, must be proposed to the prisoners. It could be cultural, sporting, educational or professional activities.

(B)

Care of sensitive inmates- Prison administration must ensure that the physical integrity of each prisoner is preserved in all collective or individual places. The law provides that any prisoner who is the ‘victim of a glaring act of violence committed by one or more inmates’ must be ‘subject to supervision and to a special detention regime’.

(C)

Job and Work-every step possible should be taken to offer jobs to prisoners who wish to work.. Prisoners might also get production jobs, which they will carry out in workshops or within their prison’s cells, from private companies or from the penitentiary industrial service.

(D)

Exercise- Various regulations provide that each prisoner must have the possibility to leave his/her cell in order to carry out a daily walk of at least one hour in the open air.

(E)

Education-The prisoners who needs or wishes to have access to quality education, equivalent to that which is provided in the outside world than staff will manage to provide facility to them.In practice, teaching units exist in each and every institution but, due to a lack of resources, the do not provide with all types of education. In terms of resources, priority if given to inmates that are the most in need.

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(F)

Freedom of thought, conscience and religion- The Prison Law of the 24th November 2009 provides that prisoners can practice the worship of their choice. During incarceration, prisoners must be informed of their right to receive visits from a cult minister and to attend services and worship meetings ensured by authorized chaplains. A specific room with neutral decoration must exist in each prison for the purpose of worship practice.

(G)

Information- In every prison there is a specific department that informs prisoners of any legal proceedings in which they are involved, such as convictions that regard them, and of the time they have to challenge such decisions.

(H)

Provisions for women-Pregnant prisoners must be sent to a public hospital that has a maternity unit. During childbirth, the prisoner should not be handcuff or tied up and no prison staff should be admitted into the delivery room. In theory, during the stay in the hospital there should be no surveillance or monitoring unless a prisoner is thought to be dangerous.

(I)

Foreign National -When they first enter prison, foreign nationals must be informed by administration that they can get in touch with diplomatic and consular services of their own country. To this end, these services addresses must be provided to them. If their national state allowed reciprocity to the benefit of France, foreign prisoners can communicate with consular officials in their own language.

(J)

Alternatives to imprisonment-The notion of alternative is mostly used is the sense of alternative to imprisonment. It gathers every restrictive freedom sanctions, except prison.It

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can be a suspended sentence doubled with probation: the convict is subject, for a certain period of time, to a number of obligations etc. (K)

ILL treatment of prisoners-Prisoner’s complaints of illtreatment by prison staff or by other prisoners are handled by prosecutor's office or can be transferred to an investigate judge. In case of ill -treatment by prison staff, prisoners can also refer to the Defenser of the rights who can conduct inquiries.

(L)

The French section of the International Prison Watch (Observatoire international des prisons - OIP-SF) is a nonprofit non-government organisation created in 1996 in order to promote respect for the human rights of incarcerated persons, with respect to the international human rights instruments. Basically, the OIP collects and gives publicity to information on the conditions of detention in order to raise public awareness and alerts public authorities to the problems detected, informs imprisoned individuals about their rights and supports them in the procedures to enforce these rights campaigns for the passing of laws and other appropriate measures to ensure guaranteed respect of prisoner's rights and favours limited use of incarceration, reduction of the penalty scale and development of alternatives to penal prosecution and non-custodial measures.

4.10.4 South African Prison System 4.10.4.1 Prison situation in past Apartheid plays important role in the history of South African prison which means ‘separateness’, or ‘the state of being apart’. It was a system of racial segregation in South Africa enforced through legislation by the

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National Party (NP), the governing party from 1948 to 1994.. Millions of people were forcibly removed to places of residence determined for them by state officials. Punishment of those who failed to respect this system involved a range of corporal punishments, formal and informal, and the construction of a penal system. The country had one of the world's highest rates of rate of imprisonment and conviction caused particularly by the enforcement of the law requiring various population groups to carry identity documents, known as 'passes'. Imprisonment, moreover, was harsh. The prison system was militarized in the 1950s, when warders adopted militarystyle uniforms and ranks, and developed the use of convict labour for the development of the country, in building roads, harbors and in mine work.The penal system was also used extensively from the 1960s to detain people without trial and those who were convicted of crimes related to apartheid opposition. Under the regime of apartheid, the main objective of prisons was to keep their inmates out of the community. It is the abolition of formal racial segregation - in prisons as in politics - that has been the most visible change in South Africa since its democratization.The country now has a prison system controlled by one national body, the Ministry of Correctional Services, and administered by the Department of Correctional Services (DCS). It is officially committed to a policy that aims to make prisons more humane places with a view to rehabilitating offenders and reinserting them into society. 4.10.4.2 Prisons reforms in new South Africa The prisons law was amended in 1993 when solitary confinement and punishment on a spare diet were abolished, as was corporal punishment for prisoners. The introduction of first the interim, and then the final Constitution, which was enacted in 1996 consolidated the concept of prisoners' rights6. 6

S 35(2)

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deals with the rights of detained and arrested persons, including the right to 'conditions of detention that are consistent with human dignity; including at least

exercise

and

the provision

at

state

expense, of adequate

accommodation, nutrition, reading material and medical treatment.7The first Constitutional Court case, which declared the death penalty unconstitutional, the court reaffirmed that although dignity may be impaired by imprisonment, a prisoner does not lose all his rights on entering prison. The new Correctional Services Act drafted in 1998 takes the new imperative of human rights into account.. In terms of the new Act, the Department of Correctional Services is committed to a threefold purpose: a) Enforcing the sentences of the court in the manner prescribed by the Correctional services act . b) Detaining all people in safe custody whilst ensuring their safe custody. c) Promoting the social responsibility and human development of all prisoners. Hence, the goal of correctional services was to provide facilities, opportunities, services and incarceration conditions that would be conducive to the rehabilitation and development of offenders. The Act also states that the Department must provide access to as full a range of programmes and activities as is possible to meet the educational and training needs of a prisoner. A prisoner may also be compelled to participate in programmes.The Act creates an enormous responsibility to provide programmes, yet it is constrained by lack of resources, such as sufficient social workers, teachers, Psychologists and other professional staff. Many prisons have severe space constraints and simply do not have rooms in which to run programmes.

7

In S V Makwanyane, 1995 6 BCLR 665 (CC); 1995 3 SA 391 (CC) 142.

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a) Among other new initiatives introduced in the last five years is the establishment of independent oversight of prisons through the Independent Judicial Inspectorate headed by an inspecting judge.One or more Independent Prison Visitors is to be appointed for each prison, to make regular visits, interview prisoners and deal with the complaints of Prisoners by reporting the complaints to the Head of Prison. b) A further measure introduced in an attempt to improve the prison systems is the privatization of prisons.. The government believed that privatization would attract Private capital and thus would help to reduce prison overcrowding. c) Security-in

the

early period

of South Africa's

political

transformation also introduced the concept of super-maximum security prisons, based on the American model from Marian Island.There is a high emphasis on security and prisoners are shackled to a stun Belt whenever they leave the prison, and handcuffed each time they leave the cell.So even South African prison system has improved a lot still problem of overcrowding, Corruption, custodial tortures, rape, sodomy in prison is challenges before government. Also health issues like HIV/AIDS are yet to be controlled. 4.10.5 Prison System of Nigeria The Nigerian Prisons Service deserves commendation. Reforms as the word connotes have been viewed by political watchers and Nigerians public as revolution towards humanistic approach. In the eyes of public opinion and in the judgment of history, the Nigerian Prisons Service NPS is not an ordinary agency of government, considering its responsibilities to take into custody of people handed over to it. These groups of people ranges from

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kidnappers, assassins, armed robbers, pipe line vandals, officers and men of security agencies, politicians and high ranking civil servants, some have been convicted and some are awaiting trial. a curious background check showed that as enormous as the mandate of NPS is, its finances are very lean to carry on its functions, especially with the various reform programmes introduced to build the capacity of prison inmates. In the various sectors, available for training for the inmates are education, agriculture, technology, etc. today, prisoners in dozens graduates in different fields of endeavor through the National Open University of Nigeria commonly known as NOUN. The truth, however, is that many prisoners are undergraduates and graduates including those already doing Masters Degree programmes, some are said to be preparing to commence PHD programmes in the Open University. 4.10.6 Prison System of Russia In year 1992 important changes were introduced into the country’s penal legislation, which at the time was still known as legislation for corrective labour. These were aimed at making the regime for persons deprived of their liberty more humane. Certain unnecessary and humiliating curtailments of prisoners’ rights were also removed. President of the Russian Federation, in year 1993 approved some suggestions which laid the foundations for a draft of the principal organisational measures which needed to be introduced. These included: (A)

the creation in all territories of the Russian Federation of institutions capable of administering custodial punishment for the majority of convicted criminals within the region where the offenders lived or where they had committed their crime.

(B)

The extension of the guaranteed minimum of privileges provided for prisoners, bringing these into line with international norms.

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(C)

The introduction of individual programmes for the re-education of each prisoner based on the psychological, psychiatric and socialpedagogical diagnosis of the personality of prisoners,

(D)

The extension of prisoner’s rights in the domestic and production spheres, the organisation of their leisure and the creation of conditions allowing for the activity of non-governmental associations.

(E)

One of the most important focuses of reform in the legal sphere is judicial and legal reform aimed at establishing the priority of human rights, the implementation of constitutional principles and bringing of Russian law into line with generally accepted norms of international law.

4.10.6.1 Principles related to reforms in Russia  Government aimed at creating meaningful conditions for the provision of legal aid to citizens, as guaranteed in the Constitution of the Russian Federation. These included convicted prisoners and persons in detention.  The penal system has recently taken upon itself the tasks of escorting prisoners when they are outside a penal establishment, providing medical services for prisoners, undertaking major building projects, training staff in the system’s own staff training establishments in both the specialised secondary and tertiary sectors, and providing pensions.  A psychological service has been set up with sufficient staff. The bodies concerned with the inspection of penal establishments, administering punishment and other legal measures for punishing criminals which do not involve the isolation of convicted prisoners from society are now part of the penal system.

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 The penal system has become open for oversight by the public. This is something which experts from the Council of Europe and the UN Committee against Torture and members of international and Russianorganisations campaigning for human rights have been able to see for themselves, when they visited penal institutions for prisoners deprived of their liberty.  Liberalization and re- focusing of criminal policy, first and foremost with regard to persons who have committed minor offences or those of medium gravity. The practice of sending persons convicted of minor offences or those of medium gravity to settlement-colonies, which in Russia constitute the prototype for the ‘open prisons’ that exist in many West European countries.  The powers of the court in the course of a pre-trial examination of a case have been increased. Now, as in the whole of the civilised world, only the court has the right to make decisions regarding the methods of restriction of freedom such as remand in custody or house arrest; the extension of the period during which a detainee will remain in custody prior to his trial, the placing of the suspect or accused not in detention, but in a medical or psychiatric ward for the purposes of forensic or psychiatric expert examination, the search of a residence without the agreement of the persons living there, the search or seizure of objects and documents, now judicial permissions are needed for temporary removal of an accused from his employment, the surveillance and recording of telephone conversations etc.  There has been a substantial extension of the rights of a suspect or accused person. The point at which such a person acquires the right to defence in a variety of procedural situations has been rigidly laid down. It has been established that the participation of a defence 217

lawyer is obligatory in all criminal cases apart from those when the suspect or accused has rejected his services. The powers of the defence lawyer have also been extended.  More effective guarantees are now in place for the rights of any person arrested on suspicion of having committed a crime. Since the new Criminal Procedure Code of the Russian Federation was adopted, only a court can give permission for an individual to be held under arrest for more than 48 hours, for the surveillance, search and seizure of correspondence and so on.  The circumstances in which an accused may be remanded in custody have also been changed. remand is provided only in exceptional cases only  In the central and regional agencies of the penal system a special service has been set up to ensure the observance of human rights of citizens in prisons and colonies.  More and more effort is being devoted to safeguarding prisoner’s right to work. The wages paid for prisoner’s work are gradually increasing.  Regular training of staff in keeping with the new principles is held, so that they are able to respond appropriately to the demands of international standards regarding the treatment of prisoners.  Freedom of conscience and religious worship is guaranteed to prisoners.  Measures are being adopted at a national level to improve social conditions for the staff of the penal system.  Medical treatment for prisoners deprived of their liberty and also for persons suspected and accused of crimes detained in remand prisons. 218

4.10.7 Prison Reforms in China According to the current laws of China, the main rights of prisoners while they are in prison include the following : A) In response to decisions made by the people's courts, criminals now have the right to appeal. In last decade more than 40,000 such appeals were accepted and heard in Chinese courts. A criminal accused of having committed a crime during his prison service has the right to defend himself B) Prisoners have the right to protection against assault on their human dignity or personal safety under all circumstances. In response to any illegal action on the part of a warden or guard, such as obtaining a confession by torture, administering corporeal punishment or otherwise maltreating a prisoner, the victim has the right to appeal to the people's procuratorate, the people's court, the people's government or any other institution to expose and report such treatment. C) Prisoners who have not been stripped of their political rights have the right to vote according to law. D) Prisoners have the right to make reasonable suggestions concerning the management, the educational programme, production, recreational activities, or sanitary conditions of a prison or reform-through-labour institution. E) Criminals have the right to lead a normal life. The State guarantees material needs such as food, clothing, housing, etc. The average per capita living space for prisoners is over 5 square metres. Efforts are made to make all prison buildings solid, clean, well-insulated and well-ventilated. Statistics show that, the average prisoner consumed 22.75 kg of grain, 20-25 kg of vegetables and considerable amounts of pork, beef, mutton, fish, poultry, eggs and tofu in 1990. The 219

average daily dietary intake of calories is 2952 Kcal per person. The annual average living expenses for a prisoner in different regions of the country is around 650 yuan, close to the average living standard of the local residents.(SOURCEF) Prisoners have the right to maintain good health. They enjoy free medical care and receive a regular medical checkup every year. If they become ill, prompt medical treatment is given. Criminals suffering from a serious disease have the right to get medical treatment outside the prison on bail according to law. A female prisoner who is pregnant or breast-feeding her baby may serve her sentence outside of prison . G) Prisoners have the right to exchange letters with their relatives and friends and to regularly meet with family members. Prisons and reform-through-labour institutions have special reception rooms where prisoners can meet with their family members. H) Prisoners have the right to an education. China's reform- throughlabour institutions have set up the facilities necessary for the education of their prisoners, who receive a regular primary or junior secondary education according to their individual educational backgrounds. A prisoner with a more advanced background may receive a senior secondary or college education. I) Prisoners are allowed to read books, newspapers and magazines, listen to the radio and watch TV, in order to learn about major domestic and international events and maintain a certain amount of contact with society outside the prison. J) Prisoners have the right to believe in a religion. The Chinese Government permits prisoners who are so inclined to maintain their original religious beliefs while in custody. 220

K) Prisoners enjoy certain civil rights, including property and inheritance rights. Property which was lawfully obtained before a criminal's imprisonment is protected under the law. A convicted criminal has the right to collect his earnings and dispose of his property. Criminals have the right of inheritance under the law. L) A prisoner's rights to a patent or copyright obtained during a prison term are protected by law. Prisoners also have the right to sue for divorce and the right to fight a divorce action in court. M) The Chinese Government provides special treatment which is different from the general prison population in terms of daily activities, administration, labour requirements, etc. to juvenile, female, elderly, infirm and disabled prisoners in addition to minority nationality Chinese and foreign prisoners Prisons and reform-throughlabour institutions have special dining rooms for minority nationality prisoners with special dietary customs. N) A prisoner may have his sentence reduced for good behaviour or be released on parole according to law. O) Wardens and guards must receive special legal and vocational training, then be certified before taking a post. It is strictly forbidden to torture, insult or otherwise maltreat prisoners. Cases of unlawful administering of corporeal punishment are thoroughly prosecuted. P) Healthy cultural, recreational and sports activities are offered in China'sPrisons and reform-through-labour institutions to create a positive atmosphere for Bringing about change in the prisoners. Q) The Chinese Government attaches great importance to the protection of the civil rights of former convicts when they return to society after serving a sentence. The government has ruled that former prisoners are not to be discriminated against or shut out of society, and that they 221

are to be offered jobs to provide them with opportunities to study and work and encourage them to go straight. R) In order to solidify the successful reform of released prisoners and prevent them from returning to crime, local governments coordinate the efforts of the relevant departments, society at large and the prisoner's own relatives and friends in supplementing the assistance, education and protection provided for them. 4.10.8 Prison System in Afghanistan Prisons in Afghanistan have a long and disturbing history of serious abuses. Torture and other forms of ill-treatment were commonplace, particularly in the notorious pule Charkhi prison just outside Kabul.The Taliban arrested many political prisoners from 1996 to 2001, apparently on account of their peaceful opposition to the Taliban’s control of the majority of the country. Political Prisoners or military combatants were reportedly held in Kandahar, a prison allegedly holding several thousand prisoners. Prisoners were reportedly forced to labour on the building of a new storey to the prison. Some prisoners reportedly died of exhaustion or from beatings byprison guards. Following over 23 years of armed conflict, the criminal justice system in Afghanistan is not able to protect the rights of the people. Prisons, an essential component of this system, are crumbling after years of neglect and lack trained and qualified staff. While donor attention is focused elsewhere, prison staff is struggling to accommodate thousands of people held for long periods in poor conditions, violating basic international human rights standards relating to the treatment of detainees. Prisoners are being held for months in overcrowded cells, some of them shackled, with inadequate bedding and food. Staff has received no training and has not been paid for months. Prisoners and detainees are not 222

being held in safety, some are suffering ill-treatment or even torture. The lack of funding allocated to prisons affects the rights of those working in the system as well asThose being detained. 4.10.8.1 Present prison condition in Afghanistan Afghanistan has ratified all the major human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) , the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (the Convention against Torture),the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child. According to the Law of Prisons and Jails in Afghanistan, currently applicable national law, each provincial centre should have a prison and a detention centre. Each district centre should have a detention centre. Detention centers are under the jurisdiction of the police. Prisons are under the jurisdiction of the Ministry of Justice. In many provinces, prisons are in no condition to hold any person. The police are responsible for arrested detainees for the first 72 hours of arrest, after which they should be brought before a judge and then become the responsibility of the prison system. Under international law, detained suspects should be brought promptly before a judge to assess the legality of detention. 4.10.8.2 Key issues Separation of prisoners-Afghan national law says that there should be separate jails and prisons for women. However, in the majority of provincial prisons, women are being held in a compound within the main prison complex Women- Like men and children, they are being held for months in prisons across the country before having the legality of their detention determined by a judge 223

Children- In Afghanistan there is a basic understanding of this special protection and an accompanying attempt to hold children separately from adults, although their treatment is the same. In Afghanistan, children are being detained with their relative but there are no systems in place in prison to care for these children. Lack of fund and resources-While other aspects of the criminal justice system have received international donor support since the start of 2002, minimal resources have been provided to prisons, either by the transitional government or by international donors. Although there are some improvements that are relatively cost-free, the Ministry of Justice is desperate for funds in order to begin basic reconstruction work. Staff training In Afghanistan, the lack of professional skills, which is apparent in many fields, is particularly acute in the area of prisons. While some prison staff had worked in prisons before the time of the Taliban, none had received training incorporating human rights. Female prison staff-Prison staff in Afghanistan recognize that women must be guarded by female prison staff, and in all the prisons that Amnesty International visited, women staff were present, but in small numbers. Poor infrastructure-Across Afghanistan, prisons are in poor condition after over 23 years of armed conflict resulting in the widespread destruction of buildings in many cities and towns. Many prisons were completely destroyed and as a result prisoners are now housed in inadequate rented buildings or are held in detention centre with pre-trial detainee Sanitation- prisons are filled with dirty overflowing toilets and no adequate washing facilities. Poor sanitation in prisons, particularly during hot weather, is a cause of disease.

224

Food-Prison staff have requested to government that more nutritious food be provided for prisoners, and for themselves, recognizing that current food is not adequate and that prisoners may suffer from malnutrition. Medical facility-Medical rooms have been built in many prisons, but there are no medical supplies, including even basic equipment and medicines. The most common medical complaints amongst the prison population are typhoid, malaria, bronchitis, kidney problems, skin diseases, fever, headache, typhoid and tuberculosis (TB) as well as diarrhoea and influenza. Overcrowding-it is becoming a serious problem in many prisons and detention centres around the country as the number of arrests increases while so many of those in prison have not yetbeen tried nor do they have the possibility of release on bail. Rehabilitation and reforms- In Kandahar central prison, the prisoners have the right to write, to blackboards, to a library service, sports and music training. However, they lack resources and are unable to provide them to all those in detention. Despite this, some prisoners had taken the initiative to learn English, and teach others to read and write while others collect materials to make handicrafts. In Mazar-e Sharif prison, literacy classes are being provided by a member of the Ministry of Education. In Herat prison a volunteer is providing literacy classes for the children. Such classes are not resource intensive and should be set up in prisons and detention centres across the country. In Kunduz prison, there had been an attempt to start literacy classes but this collapsed due to the lack of writing implements. An open facility is set up for children in prison at Kabul, it has basic skills workshops. There is a carpentry workshop and classes in making clothes and leather goods. There are also literacy lessons.

225

The Afghan Independent Human Rights Commission- (AIHRC) has the authority to investigate human rights violations that would include those committed in prisons. If they are willing and able, the AIHRC could undertake this role. The AIHRC has recently established a Complaints department also to deal with grievances. Torture and inhuman treatment-Afghanistan has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and is therefore bound to uphold its provisions. 4.11 MAJOR GLOBAL PRISON PROBLEMS: A COMPARATIVE STUDY A majority of the world’s prison systems do not function at the level of the United Nations’ Standard Minimum Rules for the Treatment of Prisoners. In some countries, relevant international obligations and standards are deliberately disregarded. 4.11.1 Prison Overcrowding Overcrowding is a central problem in prison management around the globe. The acute and the widespread challenges posed by the overcrowded prisons around the world often lead to other serious problems. Overcrowded prisons are more likely to be unsanitary, violent, difficult to control, and much difficult to administer IN UKRAINE for instance, the overcrowded conditions in at least one detention facility compelled detainees to sleep in shifts.8 In Eritrea, the overcrowding in the regular prisons resulted in people being held in irregular facilities, including unventilated shipping containers or crowded basements without ventilation or sanitation.9

8 9

Report on International Prison Conditions United States Department of State • Bureau of Democracy, Human Rights and Labor Ibid

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In Sri Lanka, it is estimated that the prison system routinely houses approximately three times its capacity, which is believed to have contributed to violent confrontations in recent years10 In Central America many prisons are under the supervision of the military or local national police force – organizations which generally lack expertise in prison operations and management. As a result, some corrections systems are devoid of competent managers; lack standard operating procedures or are unable to implement them, and often demonstrate a little to nil commitment to staff training, development, and treatment. 11 In Serbia, there were over of 11,000 prisoners in a system designed for 6,500 and poor sanitation was a problem in many facilities. There were also some reports of the physical abuse of detainees in the police custody as well as by prison guards in some locations.12 In Chad, Amnesty International described prison conditions generally as “so deplorable that they amount to cruel, inhuman, and degrading treatment or punishment.” Additionally, regional detention centers had a very limited budget for food and provided few meals for inmates. Prison guards were not regularly paid and sometimes “released” prisoners who offered compensation in return. 13 In Liberia, the courts’ difficulty in processing cases led to the extended pretrial remand of hundreds of detainees in 2012. An estimated 78 percent of all prisoners in Liberia were pre-trial detainees and while the average length of pretrial detention varied, in some cases the length of the

10 New York Times, November 11, 2012, http://www.nytimes.com/2012/11/12/world/asia/srilanka-opposition- says-27-prisoners-died-in-a-massacre.html?_r=0 11 Report on International Prison Conditions United States Department of State • Bureau of Democracy, Human Rights and Labor 12 Ibid 13 Ibid

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pretrial detention exceeded the maximum length of sentence that could be imposed for the alleged crime.

14

In Bangladesh, about two-thirds of the prison populations were awaiting trial or detained for investigation, contributing to a prison population of approximately 68,700 in 2012, almost double capacity.15 In Venezuela overcrowding has long plagued, where in 2012, more than 45,000 inmates were imprisoned in the nationwide system designed for the estimated capacity of 14,500 individuals, around 70 percent of whom spend months and years in pre-trial detention awaiting a court date. In South Sudan, despite efforts by the prison service, limited resources and judicial capacity led to harsh, overcrowded, and the life threatening prison and detention center conditions that resulted in the illness and death. Lack of water reportedly led to riots in Juba Prison in August 2012, and many detention centers in the rural areas consisted of uncovered spaces where the detainees were chained to a wall, fence, or tree, often unsheltered from the sun.16 In Haiti, in year 2012, severe overcrowding forced prisoners to sleep in shifts and led to significant problems relating to ventilation and sanitation. UN observers also indicated approximately of 70 % of the prisoners and detainees in Haiti suffered from a lack of basic hygiene, malnutrition, poor quality health care, and water-borne illnesses.17 In Benin, the overcrowding and lack of a proper sanitation and medical facilities posed serious risks to prisoners’ health. A 2010

14 Ibid 15. BBC News, July 27, 2012, http://www.bbc.co.uk/news/world-latin-america-19003776 The Economist, September22,2012,http://www.economist.com/node/21563288 ICPS, http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=224 16. Report on International Prison Conditions United States Department of State • Bureau of Democracy, Human Rights and Labor 17 Ibid

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ombudsman report on the conditions in the nine civil prisons there found lack of medical care and ventilation in cramped and overcrowded facilities led to deaths. The report, commissioned by the president, indicated the total prison population (including the pretrial detainees and remand prisoners) was 6,908 in a system with an official capacity of 1,900.18 In Lebanon, overcrowding was particularly acute in the central prison in Roumieh, which operated at almost of double capacity in 2012, and where a violent riot in year 2011 resulted in the destruction of the infrastructure, including plumbing and central air.19 In Brazil, on May 5, 2012 four prisoners were killed during a rebellion inside the Anibal Bruno prison in Pernambuco State, which is also considered one of the most overcrowded in the country, with 4493 prisoners in a facility designed for only 1448. Information released by the Ministry of Health in Ethiopia in 2012 stated nearly 62 % of the inmates in various jails across the country suffered from mental health problems as a result of solitary confinement, overcrowding, and lack of adequate health care facilities and services.20 “Western Europe” countries with relatively greater resources such as Italy, Ireland, Belgium and France, prison overcrowding continues to be a problem. In Italy, e.g., in 2012, 66,529 inmates were held in 206 prisons designed to hold 47,048 people. The United Nations Office on Drugs and Crime (UNODC) has called prison overcrowding “the most worrying emergency that the Italian penitentiary system has to deal with.” In a recent Chamber decision that is not yet final, the European Court of Human Rights ruled in January that overcrowded prisons violated the prohibition of torture and inhuman or degrading treatment under the “European Convention on Human Rights” and ordered changes must be made within a year.21 18 19 20 21

Ibid Ibid Ibid UNODC, http://www.unodc.org/documents/justice-and-prison-reform/EGM-Uploads/ITALYGOV-20-En.pdf

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4.11.2 Mistreatment of Prisoners The deliberate physical, psychological, and the sexual mistreatment of the inmates by prison officials is also a persistent and pervasive issue of concern. In many cases, these abuses occur in the police stations, on military bases, or in pretrial detention facilities. Pre-trial detainees are often at greatest risk of being mistreated, according to the Open Society Foundation because they are often under the sole control of the detaining authorities, who may adopt various brutal techniques to extort confessions. In Iran, Political prisoners and prisoners of conscience are particularly vulnerable to deliberate mistreatment.The trials often feature coerced confessions that are used to secure convictions against prisoners of conscience. In Iraq in 2012, a number of Vice President Tariq al-Hashemi’s bodyguards were arrested and allegedly tortured by security officials to obtain forced confessions against the vice president. 22 In

Madagascar

in,

where

family

members

of

Alphonse

Rafaralahitsimba and Misa Arifetra Rakotoarivelo claimed confessions they made against the leader of former president Marc Ravalomanana’s political faction were extracted pursuant to electrical shock and physical violence. The two men were subsequently sent to Ambatololma Prison.In addition, the abusive authorities often intimidate or degrade the prisoners as a technique to exert control over or punish political prisoners. 23 In North Korea, political detainees are routinely subjected to systematic physical and psychological mistreatment. According to numerous defector accounts and NGO reports, prisoners experience severe beatings, electric shock, public nakedness, confinement in small immobile cells, and the coercion of mothers to watch the infanticide of their newborns.24

22 Report on International Prison Conditions United States Department of State • Bureau of Democracy, Human Rights and Labor 23 Ibid 24 Ibid

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In Syria, the activists cited hundreds of the credible cases of security forces allegedly abusing and torturing prisoners and detainees during 2012. Human Rights Watch reported the government held tens of thousands of the protestors and the activists on whom it inflicted beatings, electric shocks, and other abuse. In some countries, the deliberate mistreatment of the prisoners has been an entrenched the practice for many years, creating particular challenges for those seeking to reform and improve prisoner treatment. InIraq, domestic and international NGOs reported common methods of torture and mistreatment included stress positions, beatings, broken fingers, electric shocks, suffocation, burning, removal of fingernails, suspension from the ceiling, overextending the spine, beatings on the soles of the feet with plastic and metal rods, forcing the victims to drink large quantities of water then preventing urination, sexual assault, denial of medical treatment, and death threats. In Pakistan police sometimes tortured and mistreated those in custody with methods that included beating with batons and whips, burning with cigarettes, whipping the soles of the feet, prolonged isolation, the electric shock, denial of food or sleep, hanging upside down, and forced spreading of the legs with bar fetters. ibid25 In Cambodia, NGOs documented the torture of almost 100 prisoners in 2012, the vast majority while in the police custody, and reported that it was not uncommon for police to torture detained suspects until they confessed to a crime. And while 2012 witnessed some improvements in Burma’s overall human rights situation, security forces reportedly continued to subject detainees to harsh interrogation techniques.26

25 Ibid 26 Ibid

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4.11.3

Inadequate Legal Process Prisoners are often denied the minimum legal protections and legal

process guarantees that, in the three phases of their detention or imprisonment in the pretrial phase, at trial, and in the post-conviction stage while they serve their sentences. A significant number of the countries deny fair and an adequate process to detainees before they reach trial. Throughout the world out of total population in prison about one third are behind the bars without a conviction. In Panama, the government regularly imprisons inmates for more than a year before a judge’s pretrial hearing, and in some cases the pretrial detention exceeds the minimum sentence for the alleged crime. In Saudi Arabia, the Ministry of Interior, to which the majority of forces with arrest power report, maintains the broad powers to arrest and detain the persons indefinitely without judicial oversight or effective access to legal counsel or family. In some instances, authorities held persons for weeks, months, and sometimes years and reportedly failed to promptly advise them for their rights, including their right under Saudi law to be represented by an attorney. 27 In Zimbabwe, the authorities often deny the detainees prompt or regular access to their lawyers and relocate detainees frequently, without disclosing the new location to their families and lawyers. In Uzbekistan, specific types of the prisoners, including those charged with the religious or extremism charges or political prisoners were often denied visitation by family. In Cuba, despite the fact that the law presumes defendants to be innocent until the proven guilty, the authorities often place the burden on the accused to prove the innocence rather than on the prosecution to prove guilt. 27 Ibid

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Politically motivated trials are often being held in secret, citing exceptions to the right to a public trial for crimes involving “state security” or “extraordinary circumstances.” Criteria for admitting evidence are often arbitrary and discriminatory. Prosecutors routinely introduce the irrelevant or unreliable evidence to prove the intent or testimony about the revolutionary credentials, or lack thereof, of a defendant. Many detainees, especially those, who have accused of the political crimes, report their attorneys have difficulties accessing their files due to bureaucratic and administrative obstacles. 28 In Vietnam, it is found that the Communist Party of Vietnam (CPV) controls the courts at all levels and in many cases it determines verdicts. Political influence, endemic corruption, and inefficiency distort the judicial system and prison sentences. The party’s influence is particularly notable in high-profile cases and other instances in which authorities charged a person with challenging or harming the party or state.29 In Iran, the UN Human Rights Council and various human rights groups, including Amnesty International, Human Rights Watch, and the Reporters without Borders (RSF), frequently condemn the trials that disregard international standards of fairness. The government often charges individuals with vague crimes such as “antirevolutionary behavior,” “moral corruption,” “siding with global arrogance,” and “crimes against Islam.” Secret or summary trials of only five-minute duration frequently occur. 30 4.11.4 Limited access to counsel Once convicted, many prisoners have the limited access to counsel or others who can monitor or defend their rights.

28 Ibid 29 Ibid 30 Ibid

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In Belarus, for instance, human rights advocates who are not members of state-controlled bar associations have no access to prisoners and detainees, and cannot provide them with legal advice according to the UN Organization for Stabilization.31 In the Democratic Republic of the Congo, particularly, the intelligence services and the Republican Guards, continue to operate numerous illegal detention facilities to which authorities routinely deny family members, friends, and lawyers access. 32 In Qatar, the prisoners and the detainees generally had access to visitors but the prison officials limit access to family and legal counsel at the state security prison. In many other countries, the prisoners are denied access to the legal counsel throughout the period of their imprisonment. 4.12

INITIATIVES FOR REFORMS TAKEN BY SOME AGENCIES

4.12.1 INL (Bureau of International Narcotics and Law Enforcement Affairs) In South Sudan, INL (Bureau of International Narcotics and Law Enforcement Affairs) has obligated $6.5 million since 2010 in support of the country’s first prison training center for corrections officers, the Lologo training academy. The goal of the academy is to help the National Prison Service of South Sudan deal with one of its most pressing challenges – the development of competent and capable corrections officers and managers. INL has also provided the support funds to UN trainers and facilitated a remand board for juveniles in South Sudan to reduce the pretrial backlog of juveniles in detention.

31 Ibid 32 Ibid

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In Mexico INL’s funding, programming, and advisory assistance is also helping Mexico transform its federal penitentiary system. Since 2009, INL has assisted the Mexican government with establishing its first federal penitentiary academy, and an objective classification system to determine the housing and the programs an individual inmate will receive based on the individual’s threat, risk, and also the needs. The bureau has also initiated partnerships with several U.S. federal and state corrections agencies, all of which have been instrumental in assisting the Government of Mexico city in achieving its goals, including receiving independent accreditation of eight federal penitentiaries by the American Correctional Association (ACA). In Morocco city, INL has been working with the Delegate General for Penitentiaries and Reinsertion Administration for the last three years. As a result of this engagement, there have been measurable and significant changes

in

training

and

the

institutional

management,

including

improvements in inmate classification and intake screening, the security procedures, and inmate re-entry. In some countries, INL sends advisors to work to improve local prison systems. In Brazil, for instance, INL has partnered with the state of Rondonia and the National Penitentiary Department to design and implement a new correctional management model that would assist the government in professionalizing its correctional system. This training includes a full range of the programs, from effective and humane prisoner classification models to instruction in the emergency management and response. In Pakistan and Afghanistan the INL provides corrections management training, advisory support, capacity building, equipment and the infrastructure assistance, and also facilitates the assistance for vulnerable 235

incarcerated populations, to assist them in the development and the management of safe, secure, and humane correctional systems that could meet international standards and norms. In Serbia, From the several years, INL has also worked with the Government on a program to establish a witness protection unit inside the prison. This program includes the technical assistance in improving the operations and the management of the prison population. 4.12.2 United States Agency for International Development (USAID) In the limited circumstances, the United States Agency for International Development (USAID) also has the ability to address prison conditions through its programs. In Haiti, Colombia, El Salvador, and Guatemala, USAID Missions have worked to address prison overcrowding through the reforms of the penal codes and by improving the processes such as alternative dispute resolution to reduce the amount of time individuals spend in pre-trial detention. In the Caribbean and Central America, USAID has also supported the juvenile justice reform programs aimed at reducing youth incarceration and recidivism and separating youth from adult prison populations. In Russia, Prior to the dismissal of USAID from in December 2012, USAID worked with the Russian penal reform activists through its Conditions of the Confinement program, an important vehicle for strengthening engagement between Russian and U.S. NGOs on areas of mutual concern surrounding prison reform. Form May 2011 to June 2012, program participants met three times and shared best practices on a range of issues common in both the U.S. and Russian penitentiary systems, including 236

the treatments of the inmates in the pretrial detention, prison conditions, and overcrowding. During one of their visits to the United States, the Russian delegation toured a municipal detention center in Baltimore, met with the law enforcement officials at the Justice Department, and met with staff of the U.S. Helsinki Commission and the Senate Foreign Relations Committee (SFRC) as well as representatives from the State Department. This program provided the requisite space for the Russian representatives of civil society to talk openly about their shared challenges and determine the strategies for how to apply the lessons learned back home. In Haiti, USAID also has supported programs to improve health conditions in prisons. USAID/Haiti, for instance, supports a Health Program to Reduce and Control Contagious Diseases in Haiti’s prisons, which aims to reduce the mortality and prevent the spread of the infectious diseases, particularly cholera, HIV/AIDS and tuberculosis through adequate diagnosis and treatment. In 2008, USAID also provided Cambodia over 650 mosquito nets as well as food, toiletries, and drinking water to youth and pregnant women serving sentences in the country’s prison systems. 4.12.3 The Federal Bureau of Prisons (FBOP) It has also provided the prison reform assistance to around 17 countries. This assistance is primarily comprised of visits by foreign delegations to BOP institutions and briefings by BOP staff on issues ranging from inmate and staff management to prisoners’ rights and correctional services. In some of the cases, the foreign delegation remained at one of the BOP institutions for several days where they observed a variety of operations and shadowed staff. In addition, BOP staffs occasionally participate in advisory and assessment missions overseas..

237

4.12.4. The United Nations Office on Drugs and Crime (UNODC) It is the primary international organization that seeking to address the myriad of the global challenges associated with prisons. They are the custodians of the UN Standard Minimum Rules for the Treatment of Prisoners (SMRs), which is the primary set of the international norms by which the prison conditions are evaluated. The United States supports the SMRs, which have proven to be a valuable set of the general rules by which, to manage the prison systems and facilities, and is an active participant in the current review process. In addition to the SMRs, UNODC also relies on other important international documents to advance its work in this area, including the United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules), the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules), the United Nations Standard Minimum Rules for the Administration of the Juvenile Justice (the Beijing Rules), and the United Nations Guidelines for the Prevention of the Juvenile Delinquency (the Riyadh Guidelines). UNODC carries out both country-specific and regional prison reform projects. For instance in Kyrgyzstan, the UNODC partnered with the government in a three-year effort to reform the criminal justice legislation, develop a prison reform strategy, provide a training to the corrections personnel, improve prisoner reintegration programs, and improve the physical conditions in selected prisons. The program, which is scheduled to end in June, has resulted in the adoption of a new national strategy on the penal reform and the construction of the new bath and laundry facilities.

238

4.12.5 The International Committee of the Red Cross (ICRC) The International Committee of the Red Cross (ICRC) and related organizations also work in the co-operation with the countries seeking to address these problems, often through government-sanctioned visits to prisons and in private interviews with detainees. The purpose of these visits is to ensure the governments are in compliance with the international legal standards in their treatment of detainees. The organization’s findings and recommendations are then communicated through confidential channels to the relevant government officials in the hopes of improving the prison conditions and prisoner treatment.. In December 2011, the ICRC signed a memorandum of understanding with Bahrain’s Ministry of the Interior to allow the organization visitation rights with the detainees based in Jaw prison, the country’s main detention facility. One month later, a team of five delegates, including one physician, entered the country, marking the first time in a decade that ICRC officials have been able to monitor the places of detention. Likewise, in November 2012, the Burmese authorities have announced that following a seven-year interregnum, the ICRC would be allowed renewed access to penal facilities to conduct official visits with detainees. In early 2013, the ICRC conducted a pilot visit to places of detentions in Burma and plans to conduct the additional visits to help the government to improve the treatment of the detainees and conditions of detention. In addition to these efforts, the ICRC also conducts the educational seminars and conferences to assist the countries seeking to address the prison-related challenges. In November 2012, for example, prison managers from Cambodia, Fiji, Indonesia, Laos, Malaysia, Burma, Papua New Guinea, the Philippines, and Thailand have

239

attended a two-day ICRC seminar which had focused on how to mitigate the source and impact of the overcrowded prisons. 4.13

STEPS BY FOREIGN GOVERNMENTS TOWARDS PRISON REFORMS In addition to the work of the United States and international

organizations, a wide array of foreign governments is striving to uphold their own domestic legal responsibilities and working to follow the international guidelines such as the Standard Minimum Rules for the Treatment of Prisoners. Positive practices undertaken by governments include: A number of countries have worked to address issues related to the physical conditions in their prisons, including overcrowding. In Benin, National Assembly passed a new Criminal Procedure Code in March 2012 which aims to decrease pretrial detention, hasten judicial proceedings, reduce prison congestion, and protect prisoners’ rights. In Cameroon, the government launched a prison modernization assessment, which resulted in the total renovation of around 47 prisons, the construction of 27 wells, and the purchase of 10 vehicles to transport prisoners. In Mexico City, in year 2012, the government inaugurated two new state-of-the-art federal facilities in Sonora and Guanajuato in an effort to address overcrowding. The new facilities will eventually each hold 2,500 high-security prisoners. . Some governments have taken steps to prevent the physical abuse of prisoners, in response to ongoing problems.

240

In Japan, the government took steps to improve training for staff at all 52 juvenile training schools following the conviction of the four instructors who abused residents at a reform facility for juvenile offenders. In Panamarecently, the government of has opened a Penitentiary Training Academy to address human rights, prisoner’s rights, and penitentiary law. In Mongolia, the parliament took a number of steps to improve conditions and prevent abuses in the prisons and detention centers, including the requirement of video and voice recording equipment in interrogation rooms, pre-trial detention centers, and prisons. Allowing prisoners reasonable contact with visitors and respecting prisoners’ right to freedom of religion or belief, including by permitting religious worship, observance, and practices, are perhaps the two most commonly respected prisoner guarantees through worldwide, including by some governments with poor human rights records within their prison systems. In Lebanon, for instance, inmates can practice their religion and receive visitors once or twice per week, with the frequency of visits dependent on the severity of the inmate’s crime. In Honduras, the authorities generally have permitted the inmates to have a reasonable access to visitors and religious services of their choice. In Zimbabwe, the prisoners are permitted religious observance, and all the prisons engaged locally based chaplains to provide basic services. Additionally, church groups have trained chaplains to provide religious services and life skills classes for prisoners.

241

Many countries also have established procedures that permit prisoners to submit complaints to the judicial authorities without any censorship, investigate credible allegations of inhumane conditions, and document the results of such investigations in a publicly accessible manner. In Belgium, prisoners and detainees are able to submit complaints to judicial authorities and the government has established the oversight committees tasked with monitoring the conditions of detention and informing the Ministry of Justice of their findings. In Kenya, the magistrates and the judges made prison visits during the year, providing an avenue for the prisoners to raise grievances. The government has also established the court user committees, which included paralegals and prison officials, to increase prisoners’ access to the judicial system.

***

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Chapter - 5

JUDICIAL APPROACH TOWARDS PRISON SYSTEM

CHAPTER 5

JUDICIAL APPROACH TOWARDS PRISON SYSTEM 5.1

INTRODUCTION Prison is a place where the criminal justice system put its entire

hopes. The correctional mechanisms, if fails will make the whole criminal procedure in vain. The doctrine behind the punishments for a crime has been changed a lot by the evolutions of new human rights jurisprudence. The concept of the reformation has become the watchword for prison administration these days. Human rights jurisprudence advocates that, no any crime or criminal should be punished in a cruel, degrading or in an inhuman manner. On the contrary, it is also held that any punishment that amounts to cruel, degrading or inhuman should be treated as an offence by itself. The transition caused to criminal justice system and its correctional mechanism has been adopted worldwide. Here, the inquiry is made to know the extents of the inclusion of these human rights of the prisoners into Indian legislations. Internationally, it has become a well accepted rule that the correctional mechanism in criminal justice administration should comply with reformative policies. It has also declared that all the prisoners shall be treated with respect due to their inherent dignity and value as human beings. There are a set of rights identified by the international legal system so as to save the human dignity and the value of the prisoners and there by the reformative theme of correction. It has also been strongly argued that the community can never tolerate a scheme of correction that does not maintain 243

a connection with the evilness of the crime done. Thus the punishment always maintains the subjective perspectives. The rights of imprisoned person have to be read despite of this perception. It is truly meant that there can be varied punishments for same offence; but one should not be treated as bad while the sentence once declared by the court goes on. In this preview, the rights guaranteed that the under the international legal system is to be looked into and legislative concern for the same in India. The term prison has been defined by the Prisons Act, 1894 (stated earlier in this thesis) in an exhaustive manner. Prison could be any place by virtue of a government order being used for the detention of prisoners. Thus even a jail will come under the definition of the prison according to this definition. Similar definition has been given to the prison by the Prisoners Act, 1900. These two enactments still remains the basic premises by which the administration of the prison has been regulated. The Prisons Act excludes the police custody and the subsidiary jails from the meaning of the word prison. International human rights law also developed its own concepts for the term prison. According to them, the prison can be only a place for the treatment of convicted persons. According to the human rights law for the protection of imprisoned person, imprisoned person means a person deprived of the personal liberty as a result of his conviction on any offences and imprisonments means such condition of an imprisoned person. This will help to give clear picture with regard to the issues faced by the prisoners in general, an under trial prisoner and a detained person. Thus now all the dignity that human holds can also be provided inside the four walls of prison. The traditional definition and the concept about the prison are: unfit for the time. Prison life takes away many freedoms from the inmates like; liberty, heterosexual relations, security autonomy and so on. The human rights jurisprudence have contributed much for the penal reforms and the same had its impact in India. The penal

244

reforms, made all over the world, have its effects in India too. The concept of the penal reforms had its birth from the reformative theory of punishments. Prison of the time should have a meaning that incorporates the reformation values into it. The reformative aspect thinks about the incorporating human values into the prison system and the prison officials have to work for the achievement of the same. The extent of the protection assured by the legal system for the reformative treatment of the prisoners should be made under a national legal frame work and India lacks the same thing. The modern idea about the prison has been envisaged by the judges through the decision making process. Even the concept of open jails has been evolved by the time. No longer can prisons be called as an institution that delivering the bad experiences. Krishna Iyer, J opined prison as: “A reformative philosophy, rehabilitative strategy, therapeutic prison treatment and enlivening of prisoner’s personality through a technology of fostering the fullness of being such a creative art of social defense and correctional process activating fundamental guarantees of prisoner’s rights is the hopeful note of national prison policy struck by the constitution and the court.” 5.1.1 Concept of Human Rights and prison Human right is a modern term but the principle that it invokes is as old as humanity. It is that certain rights and freedoms are fundamental to human existence. They are inherent entitlements that come to every person as a consequence of being human, and are founded on respect for the dignity and worth of each person. They are not privileges, nor gifts given at the whim of a ruler or a Government. Nor can they be taken away by any arbitrary power. They cannot be denied, nor can they be forfeited because an individual has committed any offence or broken any law. Initially these

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rights had no legal basis. Instead they were considered to be moral claims. In due course these rights were formally recognized and protected by law. Often they came to be safeguarded in a country's constitution, frequently in the form of a Bill of Rights, right to equality, etc. which no Government could deny. In addition, independent courts were set up in which individuals whose rights had been taken away could seek redress. The widespread abuses of human rights and freedoms around sixty years ago, which culminated in the atrocities of the World War between 1939 and 1945, put an end to the notion that individual States should have the sole say in the treatment of their citizens. The signing of the Charter of the United Nations in June 1945 brought human rights within the sphere of international law. All Member States of the United Nations agreed to take measures to safeguard human rights. Three years later, the adoption of the Universal Declaration of Human Rights provided the world with a "common standard of achievement for all peoples and all nations based on the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family. Human rights issues and obligations are now an issue of the day-today conduct of almost all governments. Over the years, since the proclamation of the Universal Declaration of human rights in 1948, States have developed a considerable number of human rights instruments at the national, regional and international levels and have undertaken obligations under international and domestic law both to promote and to protect a wide variety of human rights. 5.1.2 Human Rights In Indian Context The Indian socio-legal system is based on non-violence, mutual respect and human dignity of the individual. If a person commits any crime, it does not mean that by committing a crime, he ceases to be a human being and that he can be deprived of those aspects of life which constitutes human

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dignity.It is the human life that necessitates human rights. Being in civilized society organized with law and a system as such, it is essential to ensure for every citizen a reasonably dignified life. Even if the person is confined or imprisoned because of his wrong, he is entitled to their rights unaffected by the punishment for wrongs, simply because if a person under trial, his rights cannot be discarded as a whole. Since independence, India had sought to institutionalize its commitment to human rights by a deliberate choice of an open society and a democratic policy based on universal adult suffrage, respect for the dignity of the individual, the role of law and multi- party system. India has been firm in its conviction that democracy is the best guarantor of human rights and it provides on optimal political framework for development. Poor countries like India require a massive social and economical transformation to conquer the ancient of poverty, ignorance and injustice. But India believes that in order to be feasible such basic changes have to be based on free and willing consent of the people provided by a democracy. The institutions which India fashioned to sustain as plural, multi – ethic, multi-religious, multi – linguistic and a secular polity had the overreaching objectives of consulting the norms and principles of democracy. Indian Constitution as a matter of pride provides for comprehensive framework to safeguard human rights giving special emphasis more on the rights of religious, cultural and linguistic minorities. The judiciary has been vested with special responsibility to protect human rights and the Supreme Court as a sacred trust has accepted the protection of minorities. The Constitution of India for fundamental rights and Directive Principles, in Chapter III and Chapter IV respectively, so as to bring in peace and happiness among the citizens. Some of the fundamental rights as enshrined in the Constitution of India are:

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a) Equality before Law, b) Prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth, c) Equality of opportunity in matters of public employment, d) Abolition of untouchability, e) Freedom of speech and expression, f) Protection of life and personal liberty, g) Right against exploitation, h) Right to freedom religion, i) Cultural and educational rights, and j) Right to constitutional remedies. The above mentioned fundamental rights have been given so much importance that infringement of the rights would confer right to move the highest court of the land, the Supreme Court by way of appropriate proceedings for enforcement of the same. The Supreme Court has been vested with the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quowarranto and certiorari whichever may be appropriate for the enforcement of any of the fundamental rights guaranteed under the Constitution of India. Besides, the Parliament has been vested with powers to empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court as detailed above. The Constitution of India further provides that a person whose rights have been violated has the rights to directly. approach the High Courts and the Supreme Court for judicial rectification, redressal of grievances and enforcement of fundamental rights under Articles 32 and 226. By virtue of these provisions the Supreme Court of India has expanded the ambit of judicial review to include review of all those State measures which either violate the fundamental rights or violate the basic structure of the Constitution. There 248

are ample powers conferred by Article 32 read with Article 142 of the Constitution to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders as provided in Article 144 of the Constitution. 5.1.3 Judicial Activism on Prison Reforms The Indian Supreme Court has been active in responding to human right violations in Indian jails and has, in the process, recognized a number of rights of prisoners by interpreting Articles 21, 19, 22, 32, 37 and 39 A of the Constitution in a positive and humane way. The Supreme Court of India in the recent four decades has been very active against violation of the Human Rights of the prisoners. In this area an attempt is made to explain the some of the provisions of the rights of prisoners under the International and National contexts and also as interpreted by the Supreme Court of India in the light of Fundamental Rights. Through its positive approach and the Activism, the Indian judiciary has served as an institution for providing effective remedy against the violations of Human Rights. Prisoners depend on prison authorities for almost all of their day to day needs, and the state possesses control over their life and liberty, the mechanism of rights springs up to prevent the authorities from abusing their power. Prison authorities have to be, therefore, accountable for the manner in which they exercise their custody over persons in their care, especially as regards their wide discretionary powers. Disturbing conditions of the prison and violation of the basic human rights such as custodial deaths, physical violence/torture, police excess, degrading treatment, custodial rape, poor quality of food, lack of water supply, poor health system support, not producing the prisoners to the court, unjustified prolonged incarceration, forced labour ,overcrowded prisons, prolonged detention of under trial prisoners, unsatisfactory living condition and allegations of indifferent and even inhuman treatment by prison staff and other problems observed by the apex court have led to judicial activism. 249

5.1.4 Role Played By Judiciary for Prisoners Protection The Indian Judicial system has played a significant role in the direction of protection of prisoners and also to ensure safety and security of the people in custody or inmates or detenues. Judicial setup (especially supreme courts and high courts) in India, under no circumstances, can pave way for violation of human rights of the people in custody and allow inhuman activities to go on. The jurisdiction of the judiciary system is to see to it that the accused, whom they order to be arrested by police, is duly informed of the grounds for his/her arrest. They should also ensure that the nearest relative of the accused is in touch with him and the accused is allowed to contact the legal practitioner of his own choice and appropriate arrangements are also made to regain his freedom. It is provided in the Code of Criminal Procedure (Cr.P.C.). The Judicial Magistrate should enquire from the accused as to whether he/she has been informed of the grounds of his/her arrest. This provision is made in Art.22 (1) of the Indian Constitution. Also on the same lines the judicial system, including the Supreme Court of India as its Apex Body, has interpreted Art.22(2) of the Indian Constitution to mean that the arrested person must be produced before the Magistrate within twenty four hours of his arrest. It is further provided that the officers responsible for the custody of the accused should produce him before them as directed by the Constitution as well as Cr.P.C. Further, after completion of the hearing before the Magistrate, if it is proved that the crime is bailable, the bail should be granted and the accused be released immediately on bail. Further, when the trial is pending in court the Judicial system plays another role of treating the accused with dignity and directs the authority responsible for his custody to accord human dignity to her. Honourable Supreme Court of India has laid down that the accused in pretrial detention is entitled to fair and decent treatment by way of comforts

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and medical attention so that humanity is never degraded or disregarded. Supreme Court and other courts in India have passed various rulings that any violation of human rights during under-trial detention will be followed by compensation for unlawful detention. Apart from the legal rights conferred on the accused, now the bodily conditions, in custody of police also, are required to be maintained by the custodians. Such requirements, though may not be up to standard required, should be at least be reasonable. The living conditions and other common facilities provided to the accused in custody should ensure a good healthy environment, provision of better living accommodation, separate toilets for ladies and gents, bathrooms with basic necessities, adequate care of children, accompanying them suitable medical facilities, education, vocational and recreational facilities and prepare them for rehabilitation after release. Finally, the quality of food served in custody must be good, it should be cooked hygienically and should be well tested before it is served. Further, the food must include well balanced diet to inmates. The jails must be treated as reformatory Homes and not places for molesting, teasing, torture and ill-treatment. Finally, the last role the Indian Judicial system or machinery has to play is to set rules that indicate the human rights of the accused in custody after considering provisions in the Universal Declaration of Human Rights, National Human Rights Commission, constitution and Cr.P.C. and deliver their judgments. 5.2

PRISONERS RIGHTS: EMERGING JUDICIAL TRENDS

5.2.1 Presumption of Innocence It is requirement of a fair process under the Anglo-American system of criminal justice, which means that(a) The onus to prove that the accused is guilty lies upon prosecution and that the Court has to start with the assumption that the accused in innocent until proved to be guilty.

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(b) The prosecution is put to strict proof, so that if there is any reasonable doubt in the mind of the Court upon the evidence adduced by the prosecution, the accused is entitled to the ‘benefit of doubt’ and to be acquitted .pataki vs austria.,1 This rule, applicable to a criminal trial, is thus different from a civil proceeding where each party has to prove his own case and the Judge has to decide according to the standard of probability. Held in K M .Nanavati v State of Maharashtra 2 . The principle that the accused person is presumed to be innocent till his guilt is proved beyond reasonable doubt is of great importance in the administration of criminal Justice. Every criminal trial begins with the presumption of innocence in favour of the accused; and the provisions of the Criminal Procedure Code are so framed that a criminal trial should begin with and be throughout governing by this essential presumption.3 5.2.2 Rights of an Arrested Person In criminal justice administration the police through their restrictive and coercive authority, effect arrest, interrogate, search, seize and detain people prior to trial. All these actions affects an individual's liberty and when done arbitrarily the individual's dignity. To prevent arbitrariness the following safeguards have been provided. 5.2.3 Grounds of arrest, to be informed: The Supreme Court was very clear while interpreting Art. 21 of the Indian Constitution in

4

case when the court said that, while arresting an

individual the reasons should be stated to him clearly as to why he is being degraded in such a manner. The arrest of a person to probe her or deprive her of personal liberty has a serious implication and it cannot be indulged

1 2 3 4

5 year book of European convention,804 AIR 1962 SC 602 Talab Haji Hussain v .Madhukar Purushottam Mondkar, AIR 1958 SC 376. Vikram v. State (F.B.) 1996 Cri. LJ 1536,

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into lightly. The right to personal liberty of an individual is a basic human rights. In our country, arrest are sometimes made with or without a warrant. Art.22(1) of the Constitution lays down that the arrested person shall be informed of the reasons for her arrest. In Nitabar Parida5 the Supreme Court interpreted sec.167 of Cr.PC. (1973)which contain the provisions for the arrested persons whereby the Judicial Magistrate has to inquire whether he has been informed on the grounds of his arrest. . 5.2.4 Access to Counsel: As a coercive arrest violates the principle of right to life and personal liberty of an individual, Article 22(1) of the Indian Constitution provides that "No person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of own choice.” This legal and fundamental right is also found in the Code of Criminal Procedure Section 303. The courts have held that from the time of arrest this right accrues to the arrested person and he has the right to consult a lawyer of his choice. The accused may refuse to have a lawyer but the court has to provide an amicus curie to defend him/her in serious cases. Courts also have held that the indigent accused has a right to legal aid. This requirement is to ensure that poverty does not come in the way of any one getting a fair trial. In the pastas in Betts v. Brady 6.case in which there was a concept under criminal jurisprudence of America that only indigent persons will be permitted to have a counsel free of cost from the Federal Government who has committed serious offences like rape and murder. But it was ultimately overuled by Gldeon V Weiinwright.7 the court has passed, it is of the opinion that under the circumstances of the case stated, the necessity of the

5 6 7

AIR 1976 Cr LJ 1212 316 Ors 455 1942 372 US 335 1963

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counsel was so vital and imperative that the failure of the trial court to make an effective appointment of the counsel was treated as denial of the due process within the meaning of the 14th Amendment. Again after the above case many cases followed the rule like.8 In India the origin of Prisoner Rights can be traced back in the land mark case of A. K. Gopalan v State of Madras. The main contention raised by the petitioner was on the phrase procedure established by law‖, as contained in Art. 21 of the constitution; which includes a fair and reasonable‘ procedure and not a mere procedure prescribed by the state for the deprivation of life or personal liberty of individuals, as it was seen in Gopalan‘s case,where he was totally deprived of his personal liberty. Even the right to freedom of movement was not available to him, which was a fundamental right. 5.2.5 Protection against arbitrary arrest Arrest is such a severe penal action of the state, which automatically and immediately deprives prisoner’s

personal liberties and freedoms.

Indian Constitution has provided ample protection against arbitrary arrest or illegal detention under Article 21 as “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Article 22 also supplements certain procedural safeguards against such type of arbitrary arrest or detention. Article 22 was initially taken to be the only safeguard against the legislature in respect of laws relating to deprivation of life and liberty protected by Article 2 1as it was held in A.K.Gopal an v State of Madras.9 But the position of Article 21, underwent a sea change since Maneka Gandhi v. Union of India in Kartar Singh V State of Punjab10 where validity of several Sections of the TADA was tested in the light of Article 8 Miranda v Arizona 384 US 436 1966 9 AIR 1950 SC 27 128 10 (1994) 3 SCC 569

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21. Now Article 21 itself has become an almost inexhaustible source of restraint upon the legislature. Consequently, the relationship between Articles 21 and 22 has drastically changed, rather reversed. But now the matters on which Article 22, is silent draw their contents from Article 21. Mahonar, Sujata, "Judiciary and Human Rights”11 The rights can be enumerated as under:1) Right to know the grounds of arrest. 2) Right to consult a Lawyer. 3) Right to Legal Aid. 4) Right to be produced before the nearest Magistrate. 5) Right to be released, if he is not produced before Magistrate within twenty-four hours. 6) Right of communication with friends, family members etc. 7) Right to speedy trial. 5.2.6 Right to know the grounds of arrest Every pre-trial prisoner must be informed about the reasons of arrest, so that he can justify his action or omission whether he is really a guilty of allegation made by the police authority and simultaneously he can prepare himself for self-defense and necessary action for getting the release i.e. to get the bail, means accused should know the reasons of arrest so that he can evaluate action of authority that the reasons and grounds were valid or invalid or flimsy or solid. the right to be informed of the charge "promptly" requires that information is given in the manner described as soon as the charge is first made by a competent authority... this right must arise when in course of an investigation a court or an authority of the prosecution decides to take 11 I.J.I.L. vol . 36 (1996), 39- 54.

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procedural steps against a person suspected of a crime or publicity names him as such....." The nature of the accusation, however, denotes the legal character or classification of the material facts. The norms and standards relating to notification can serve their purpose only when notification is made in a language which the arrested person understands. Article 22 (1) of the Indian Constitution lays down that, no person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds for such arrest. An arrest or detention will be illegal, if the arrested person has not been communicated grounds of his arrest. Analogous provisions are contained in Section 50 of the Criminal Procedure Code. The section provides two things, namely: (i) The person arrested without warrant should

immediately be

intimated the full particulars of the offence and grounds for such arrest; and (ii) In the case of bailable offence, he should be informed, (a) That he is entitled to be released on bail and (b)

That

he

may

arrange for sureties on his behalf. This

requirement is not dispensed with, if he is admitted to bail. Hence Muller v. Superintendent Presidency Jail, Calcutta,12 when a person is arrested clause (1) and (2) of Article 22 authority must ensure for the following rights :1)

Right to be informed about the grounds of arrest

2)

Right to engage advocate of own choice for

consultation and

defense 3)

Right to be produced before the Magistrate within 24 hours

12 1955 AIR 367, 1955 SCR (1)128428 held that

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4)

Freedom from detention beyond the 24 hrs period proper order of Magistrate only

5)

Right to be released from detention . In the case of D.K.Basu v. State of West Bengal13 following

guidelines are given to be followed in cases of arrest or detention by the concerned Authority:1)

The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and nametags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2)

That

the

police officer carrying out the arrest of the arrestee

shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. 3)

A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4)

The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the

13

50 AIR 1997 SC 610 257

arrestee lives outside the district or and through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. 5)

The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

6)

An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7)

The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The "inspection Memo" must be signed both by the arrestee and the police officer carrying out the arrest and its copy provided to the arrestee.

8)

The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

9)

Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.

10)

The arrestee may be permitted

to

meet

his lawyer during

interrogation, though not throughout the interrogation.

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11)

A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.

5.2.7 Right to have Interview with Friends, Relatives and Lawyers In Sheela Barse v. State of Maharashtra,14 the court held that inter views of the prisoners become necessary as otherwise the correct information may not be collected but such access has got to be controlled and regulated. In Dharambir v. State of U.P15 the court directed the State Government to allow family members to visit the prisoners and for the prisoners, at least once a year, to visit their families, under guarded conditions. 5.2.8 Right to engage Lawyer In Hussainara Khatoon v. Home Secretary16, Bihar, the Supreme Court has held that it is the Constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the state and the state is under Constitutional duty to provide a lawyer to such person if the needs of justice so re- quire. If free legal services are not provided the trial itself may be vitiated as contravening the Article 21.

14

JT 1988 (3) 15 2010)5SCC344 16 1979 AIR 1369, 1979 SCR (3) 532 15

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It is presumption that every pre-trial prisoner may not be aware of legal provisions or the nature of act or offence done by him thus to provide him the sound knowledge of legal technicalities, the help of legal expert is a condition precedent to save such person and to prepare the grounds for saving him from the wrongful conviction. Thus legal counsel services of legal counsel are an earliest opportunity subsequent to the detention for the protection of Human Rights of pre-trial prisoners. The non-availability of an advocate may lead the whole matter in wrong direction as may be predetermined by the police authority against the accused. Moreover it is also essential that the accused may be made conscious prior to give any statement or interrogation or precise conversation under the pressure of police authority wrongfully. Article 14 of the Covenant provides a competent counsel who must be well-qualified and experienced to represent the matter of accused in proper manner. It was held in Moti Bai v. State17 Neither the Article 22, guarantees any absolute right to provide a lawyer by the State nor does the clause confer any right to engage a lawyer who is much competent to represent the accused. The right guaranteed is only to have the 'opportunity' to engage a competent legal practitioner of his choice. It has been further held that this right to counsel is not limited only to the persons arrested but can be availed of by any person who is in danger of losing his personal liberty. The Criminal Procedure Code has specifically recognized the right to be defended by a pleader of his choice. Section 303 contemplates that the accused should not only be at liberty to be defended by a pleader at the time the proceedings are actually going on, but also implies that he should have a reasonable opportunity, if in custody, of getting into communication with his legal advisor for the purpose of his defense

17 AIR 1954 Rajasthan, 241

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In Kailash Nath V Emperor,18 interpretation was made that The accused must therefore get reasonable opportunity to communicate with the lawyer while in police custody. The consultations can be within the presence of the police but it would be unreasonable and unjust to have them within the hearing of the police. It is to be noted that Section 303 does not confer a right on the accused person to be provided with a lawyer by the State or by the police or the Magistrate. That is a privilege given to the accused person and it is his duty to ask for a lawyer, if he wants to engage one, or to engage one himself, or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity. Thus, an accused who have right to consult a legal advisor of his choice, as soon as he is arrested and who have an interview with the lawyer out of the hearing of police. 5.2.9 Right to Legal Assistance The Indian Constitution does not expressly provide the Right to Legal Aid. But the judiciary has shown its favour towards poor prisoners those who are not in a position to engage the lawyers of their own choice because of their poverty. In M.H. Hoskot v. State of Maharastra19 the Supreme Court laid down that right to free legal aid at the cost to the state to an accused who could not afford legal services for reason of poverty, indigence situation was part of fair, just and reasonable procedures implicit in Article 21. a three Judges Bench (V.R.Krishna Iyer, D.A.Desai and O.Chinnappa Reddy, JJ) of the Supreme Court reading Articles 21 and 39A, along with Article 142 and Section 304 of Cr.PC together declared that the Government is under duty to provide legal services to the accused persons 18 AI R 1947 AII 436 at 438 19 1978 AIR 1548,

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“Where in trial before the Court of Session, the accused is not represented by a pleader, and where the accused has not sufficient means to engage a pleader the court shall assign a pleader for his defense at the expense of the State.” Because of worldwide revolution in legal field specifically, in Britain and United State of America, for providing free legal aid to poor and needy people, by active recommendations of certain NGO’s, Bombay Legal Aid Committee, and judicial activism, Central Government finally enacted the Legal Services Authorities Act, 1987, to help poor citizens of India to make them able to have free legal aid and advice. Presently at all District and Taluka level the formation of such committees is done and they are working to help the accused absolutely free of cost for the fulfillment of this basic right to get free legal aid Parallelly, in case of Haryana v. Ram Diya

20

the counsel was

absent who was appointed by the Court for the accused at the time of hearing and the matter was disposed of without hearing him. The Apex Court remanded the matter for fresh hearing.

In another case of Iyron

Naznath v. State of Maharashtra21 it was held that during the trial the legal aid had not been provided to the accused hence trial was considered as illegal. Supreme Court has made the following observations in Ranchod Mathu Wasawa V State of Gujarat.22 "We find nook guild and refuse special leave. Even so, we are disturbed, having a look at the proceedings in this case, that the Sessions Judges do not view with reason to disagree with the finding sufficient seriousness the need to appoint State counsel for undefended accused in grave cases. Indigence should never be a ground for denying fair trail or

20 1990 Cri .L.J. 1327 (S C) 21 1989 Cri . L.J. 123 (Bom.) 22 (1974) 3 SCC 581 :-

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equal justice. Therefore, particular attention should be paid to appoint competent advocates equal to handing the complex cases, not patronizing gestures to law entrants to the Bar. Sufficient time and complete papers should also be made available, so that the advocate chosen may serve the cause of justice with all the ability at his command." The Supreme Court in Hussainara Khatoon's case elevated the right to legal aid to the status of fundamental right implicit in Article 21 of the Constitution. In another landmark judgment Supreme Court observed in State of Maharashtra Vs Manubhai Pragji Vasi.23 "The right to free legal services is, therefore, clearly an essential ingredient of "reasonable, fair and just' procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. In addition to that in well-known case of Khatri v. State of Bihar24, it was held by the Supreme Court that because of shortage of funds or administrative inabilities the state cannot escape from providing free legal aid to the accused. It is a Constitutional obligation of state to provide free legal aid. Hon'ble Mr. Justice Bhagwati and Sen, JJ. had observed in this case that “The Magistrate or the Sessions Judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of free legal services at the cost of the State, unless he is not willing to take advantage of the free legal services provided by the State." While deciding in Delhi Domestic Working Women's Forum v. Union of India25 the hon’ble Supreme Court dealing with the problem of legal representation in sexual assault cases held

23 AIR 1996 SC 1 24 1981 AIR 1068 25 (1995) 1 SCC 14

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"It is important to have someone who is well-acquainted with the criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance." The Supreme Court further observed26 "The police should be under a duty to inform the victims of her right to representation before any questions were asked to her... A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable." 5.2.10 Right to be produced before the Magistrate Initially this principle is recognized in criminal jurisprudence but to safeguard the Human Rights of accused this has been categorically redefined enforced for the protection of Human Rights of accused by the law. In other words it is judicial review of the police action which is an independent authority to decide the action of police officer of arrest was just and fair or illegal and arbitrary. The Constitution has taken care of an arrested person in Govinda Prasad v. State of West Benga27l, Case the Court Upheld Art.22(2) and said that "Wherever a person is arrested by police or anyone, authorized to execute the duty for the Government, he shall be told the grounds of his arrest and shall be produced before the Magistrate within 24 hours of arrest and shall not be denied to consult a legal practitioner of his choice." The same is given in Cr.P.C. Sect.56, 57, 76, 80, 167(1).

26 Ibid 27 1975 Cr LJ 1249

264

Section 56 and 57 of the Criminal Procedure Code contain more or less the same provisions as is contained in Article 22(2) of the Constitution. According to Section 56 a police officer making an arrest without warrant must take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station. This duty of the police officer is subject to the provisions contained in the Code as to bail. While the time given in Article 22(2) is twenty four hours, Section 56 requires taking or sending of the arrested person without unnecessary delay. Section 76 provides a similar rule in substance in case of arrest under warrant. On a police officer arresting a person the arrested person would not be kept in any place other than a police station before he is taken to the Magistrate. The object of Section 56 is that such a person should not be detained for more than twenty four hours in police custody in absence of a special order of a Magistrate. 5.2.11 Right to be released, if not produced before the Magistrate The Human Rights committee has taken the view that the term "arbitrary" is used in the Covenant in a wider sense .Held in Hugo Van Alphen v. The Netherlands28 It is not synonymous with "against the law", but "must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. An arrest or detention is arbitrary if it is, a)

On grounds or in accordance with procedure other than those established by law,

b)

Under the provisions of a law the basic purpose of which is incompatible with respect for the right to security of person.”

28 (305 /1988) 23r d Jul y, 1990

265

liberty and

As per the provisions of Indian Constitution, Article 22 (2) the clarity about arrest with warrant and without warrant is described. But in State of Punjab v Ajaib Singh.29

It was decided by Supreme Court that

the article provides provision to arrest accused with warrant only. The logic behind this case of an arrest, is to provide safeguard to the Human Rights of accused in absolute terms. This view appears to be unreasonable and wrong. Provisions similar to Article 22(2) are also contained in Section 57 of the Criminal Procedure Code. In Bal Krishna v. emperor30, it was held that Magistrate is an authority who evaluates the presentation made by the police officer as well as by the lawyer of accused. Police officer pleads the ground for obtaining the remand where as the lawyer of accused, try to oppose the same. On being hidden facts to be exposed before the Magistrate and the Magistrate has to take a balance view between two presentations and to pass the necessary order. As per much renounced judgment of D.K.Basu v. State of Bihar, the accused is provided a series of right among which, a medical aid in health of medical officer is a specific condition to verify the physical condition of accused in police custody. 5.2.12 Right of Communication to detenue As decided by the Supreme Court in D.K.Basu, the information of arrest is required to be given to the friend or relative of accused immediately, while he is arrested. The purpose is very clear that, by this communication the relative or friends of accused can start the efforts to know the facts of accused, to obtain the legal advice and take the defense against an application for remand and do the necessary preparation for bail.

29 AIR 1953 SC 10 30 33 Cr . L.J., 180

266

In interesting case of Francies Coralie Mullin v. Union Territory of Delhi31 wherein a British National was detained in Tihar Jail of Delhi for the offence related to foreign exchange. The one of the issue was to permit the accused to have communication with sister and his daughter as per the Punjab Jail Manual, having its application in Delhi accused was permitted to meet friends and relatives once in a month. 5.2.13 Right to Speedy Trial Since the primary principle of having the presumption of innocence on the part of accused, the right to speedy trial is a device to prove the innocence of accused in speedy manner if he is really innocent. So the basic idea behind the concept of speedy trial is, to release the person if innocent from the charges of offence. Again Criminal Procedure Code has no assurance for speedy trial. Of course U/s. 437 (6) if accused is in detention and charge-sheet is not completed within 60 days, he is permitted to be released on bail. Sec. 309 (1) provides as under:"In every enquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when, the examination of witnesses has once begun, the same shall be continued from day to day until all the witness in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded." It is in the interest of the accused and the community at large both that the criminal proceedings come to a reasonable quick end.

Union of

India v. Ashok Kumar Mitra32, In a significant judgment, the Supreme Court also held that "when the judge is fairly certain that there is no 31 1981 1 SCC 608 32 AIR 1995 SC 1976 a t 1978;

267

prospect of the case ending in conviction, the valuable time of trial court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce that conclusion on a future date", Inordinate delay in trial is both unjust and oppressive.33 Justice Bhagwati has also stressed the fact, in the following observation,34 "The State is under a Constitutional mandate to ensure speedy trial and whatever is necessary for this purpose has to be done by the State. It is also the Constitutional obligation of this court, as the guardian of the fundamental right of the accused to speedy trial by issuing necessary directions to the State which may include taking positive action, such as augmenting and strengthening the investigative machinery, setting-up new courts building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures calculated to ensure speedy trial." In a case Kadar Pahadiya v. State of Bihar35 large number of cases involving accused, charged with serious and non-serious offences, mentally retarded persons and others have come up before the Supreme Court and I was held that all persons awaiting trial for long can move to the Supreme Court which will give necessary direction in the matter. In Joginder Kumar v.. State of U.P.36 the Supreme Court observed that the above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. Elaborating the guidelines further the Court observed.

33 34 35 36

The Hindstan Times, New Delhi , 5t h A ug ust, 1996., supra (1983) 2 SCC 104 1994 AIR 1349,

268

“In above objects the discussion about the pre-trial prisoners is done at length under the focus of provisions of international Covenant, Indian Constitution, and Criminal Procedure Code etc. and also Constitutional Provisions regarding the safeguarding of Human Rights of under-trial prisoners.” Right to equality "the state shall not deny to any person equality before the law and equal protection of the laws within the territory of India. it was held in Indra Swahney v. Union of India, 37The doctrine of equality is a dynamic and evolving concept and it is applied to prisoners also within legal limits. Though the mere object of securing a speedy trial may not be a reasonable basis for providing a discriminatory procedure for certain offence. it was held in Hanumantha v. State of A. P., 38would be a valid basis for classification if, the need for a speedy trial has a reasonable relation to the object sought to be achieved by the legislation. such one of the object was interpreted by supreme court in State of W .B. v. Anwar Ali,39 which requires taking prompt action against bribery and corruption which had become rampant at a particular point of time in prison. 5.2.14 Prohibition of applying ex post facto law The basic principle of law is that no law will impose any penalty until any violation of law is done. This principle is established in the theory given by " Nula Pina Syayana Legnia ". In other words, any act or omission which may be immoral, unwanted or against the society if not falls within the preview of judicial adjudication or under any act if it is not an offence, it is not punishable. Thus any immoral or illegal or forbidden, wrong which is not covered as a violation of legal provisions is not punishable and thus 37 AIR. 1993 SC. 477 38 AIR 1957 S.C. 927. 39 (1952) S.C.R. 284 (314, 328)

269

the prospective of retrospection of law is accepted by the Constitution vide Article 20 (1). It prohibits (i) the making of ex-post-facto criminal law as it was approved in case Nayyar v. Delhi Admn40 i.e. making an act a crime for the first time and then making that law retrospective;it was followed in Shiv Bahadur v. State of U. P.41 108 (ii) the infliction of a penalty greater than that which might have been inflicted under the law which was in force when the act was committed. Kedar Nath v. St ate of Punjab42, The aspect is that the prescription is only regarding the conviction or sentence under an ex-post-facto law and not for the trial. In other words, a trial can be conducted and subsequently any trial is to be decided that since it was a retrospective law as well as it is not punishable. .it was held in State of W .B. v. S.K.G hose,43 As far as the civil and revenue charges are concerned this benefit is not available . 5.2.15 Protection against double jeopardy It can be described as immunity from the double punishment which is popularly known in legal terminology as double jeopardy. The Roman maxim of Autrofied Convict (formerly convicted) or Autrofied Activit (formerly acquitted) is applicable here. As per the theory of punishment, offence plus punishment is equal to innocence, means innocence is obtained by either the punishment which the accused has suffered or has been acquitted, as if he is not an offender or as an innocent person. This principle was initially accepted in Criminal Procedure Code 1898, Section 403 and Criminal Procedure Code 1973, Section 300. The same thing is provided a principle in General Clause Act, 1897, U/s. 26. 40 41 42 43

AIR 197 9 S.C. 602 (para .7) AIR 1953 S.C. 3 94, AIR 1953 S.C. 404. AI R 1963 S. C. 255

270

This principle is not accepted for the punishment imposed by Administrative Tribunals, Departmental Inquires or for the offences of Alien Enemy as well as for detentions under preventive detention. Important judicial pronouncement related to this application are (a) it was held in Maqbool v. State of Bombay44 as well as in Asstt. Col lector v. Malwani,45 it is essential that previous proceedings must have taken place before a Court of Law or a judicial tribunal of competent jurisdiction entrusted with full judicial powers. (b) it was held in Thomas v. Stat e of Punjab46, that The person must have been 'prosecuted' in the previous proceeding means judicial proceedings must have started formally. (c) The conviction (or acquittal) 115 in the previous proceeding must be in force at the time of these contrail. ibid (d) it was held in State of Bombay v. Apte47, thatthe subject-matter of the second proceeding must be the same as that of the first proceeding, for which he was 'prosecuted and punished'. The subsequent proceeding must be a fresh proceeding where he is, for the second time, sought to be 'prosecuted and punished' for the same offence. Hence, the clause has no application where the subsequent proceeding is a mere continuation of the previous proceeding, as it was held in in the case of Kalawati v. State of H.P.48 an appeal against acquittal or against conviction is not prohibited. Nor does it bar a retrial, on appeal, with a direction to reframe the charges, provided the retrial is confined to the same offence or offences for which he had been tried at the original trial.

44 45 46 47 48

(1953) S.C.R. 730 AIR 1970 S.C. 962 AIR 1959 S.C. 3 75 AIR 1961 S.C. 578 (19 53) S.C.R. 546

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5.2.16 Protection against self incrimination Article 20 (3) provides “no person accused of any offence shall be compelled to be a witness against himself”. The basic idea of this provision is to protect the Human Rights of an individual that, the authority may not compel the accused to be himself a witness against himself. Because many time it has been observed that the authority compels to provide evidences or documentary proofs which may prove evidence against the accused himself either in initial procedure of investigation or in process of preparation of charge sheet or at the time of trial. The word compulsion, involves the sense of pressure executed or exercised by the authority, on the accused means any type of inducement, treat, emption or promise which may be exercised immediately or may be reacted by the authority subsequently. The compulsion may however be physical or mental, in well-known case of Sharma, M.P. v. Satish Chandra49 130 the Supreme Court made a distinction between a person being compelled to do a involuntarily act and something being obtained from him without involving any involuntarily act on his part and held that the immunity offered by Article 20(3) is confined to the former case and is not available in the latter. it was further remarked while explaining the concept “It is on this principle that the Court held that the immunity is available to an accused person, when a compulsory process or notice is issued, directing him, under pain of penalty, to produce a document, but not when a document is recovered from him by search and seizure by a police officer without involving any volitional act on the part of the accused from whole possession the document is recovered.” 49 1954 SC R 1077 : AIR 1 954 SC 300

272

Supreme in case of State of Bombay v. Kathi Kalu Ogadh50 explained the scope and held that that by obtaining such finger prints or specimen signature the violation of Article 20(3) is not done by the authority. As the case may be many times during the interrogation or investigation by the police authority the evidences against the accused are collected by pressure for collecting certain finger prints or thumb impression or copy of specimen signature, it is part of investigation and hence no rule is violated. 5.2.17 Right to life and personal liberty Article 21 provides “No person shall be deprived of his life or personal liberty except according to procedure establish by law .This is very important and primary principle or concept available to an accused against the arbitrary arrest or unlawful detention, without proper procedure of law by the police authority. In many cases the personal liberties are considered an essential Human Right, among all other Human Rights. In case of C.F. Union of India v. Indo-Afghan Agencies51 held that the doctrine of “state necessity” is not applicable in India, In other words, a state is never authorized to do any unlawful detention or arrest likewise it is done in other countries as a state necessity. On the contrary in case of Makhan Singh Tarsikka52

it was

directed by the Apex Court that the procedure established by the law must be strictly followed by the police authority and accused must not be departed from the disadvantage of lacunae procedure. Same way in Maneka Gandhi v. Union of India,53 the Apex Court opened the new dimensions and horizons of imposition of limitation on three major aspects namely,

50 51 52 53

AIR 1961 SC 1808 142 AIR 1868 S.C. 778 : 1968 (2) SCR 1952 SCR 3 6 8 AIR 1978 SC 597

273

a) Making upon any adverse law, b) Framing or prescribing any rules and regulations which may be prescribing a procedure for depriving a person of his personal liberty or his life, c) Taking any action by the government machinery. In other words in maneka case the restriction was imposed on State either implementing any wrong enactment, establishing wrong procedure by implementing new rules and regulations. In total, the whole procedure must be just fair and reasonable .ibid whenever any complaint is received by person regarding the deprivation of his life or personal liberty the court is supposed to exercise the Constitutional power of judicial review whether there is a law authorizing such deprivation or of the procedure because of which the personal liberty of life is curtailed was reasonable, fair or just or was not arbitrary, whimsical, fanciful. Ibid The protection of article 21 is extendable to all citizens and also to non citizens of India In case of Chairman Railway Board v. Chandima Das, the facts of the case were regarding a gang rape on Bangladeshi lady, by railway staff and it was considered to be a serious offence. She was a non-citizen lady, she was been granted compensation.it was held in State of Maharashtra v. Prabhakar Pandurang Sanzgiri54, that The benefit of this article 21 that is right to lige and personal liberty is further extended to persons who are pretrial, under-trial or convicted prisoners in jail. 5.2.17.1

Scope of right to life and personal liberty extended by apex court

The word “deprived “was interpreted in case of of A.K. Gopalan v. State Madras which means the total loss of a personal liberty of right to move freely. later on the scope of word was extended in Kiran Pasha, 54 AIR 1966 SC 424 (426): 1966 (1) SCR

274

S.M.D. v. Govt. of A.P55, and it was considered that deprivation is something more than physical restraint because instead of waiting for violation of physical restraint the court can interfere in cases of an imminent threat to the personal freedom of life or personal liberty. The Apex Court has established certain instances when the personal liberty is deprived which are as follows(a) In Kharak Singh v. State of U. P., AIR 1963 SC12 95 (1300) held by supreme court that home is a place of living for man and his family where, he can stay with all personal liberty and peace of life. So the domiciliary visits of the police at night creates the nuisance and disturbance and it is also considered as violation of personal liberty. (b) A jailor cannot restrain a prisoner to publish a book outside the jail because he is a prisoner. it is his basic right which can’t be taken back.56 It was held in State of Maharashtra v. Chandrabhan,

57

that The

word “life” has been given very glorious and enshrined approach in Article 21, because the life is not mere survival of a human body or animal existence, but it includes to live with human dignity. While extending scope of right to life and personal liberty the emphasis is given on meaningful complete and worth living life of a man as narrated by D.D.Basu. thus it include (a) In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 apex court pronounced that a person has protection against forced labour means they are not

subjected to 'bonded labour' or to unfair

conditions of labour.

55 (1990) 1 SCC 328 56 Supra note 147 57 AIR 1983 SC 803

275

(b) it was upheld in Olga Tellis v. Bombay Corpn.58, that every person has Right to livelihood by means which are not illegal, immoral or opposed to public policy. (c) In Shanti star Builders v. Narayan Khimalal59, held Right to a decent environment and a reasonable accommodation is essential for a dignified survival. (d) In murli deora vs union of india60 held that the right to an environment, free from smoke and pollution follows from the 'quality' of life, which is inherent in the guarantee offered by Art.21. (e) In Pramanand Katara v. Union of India,61 an obligation was imposed upon the State to preserve the life of every person by offering immediate medical aid to every patient, regardless of the question whether he is an innocent or a guilty person. (f) Held in L.I.C. of India v. Consumer Education & Research Centre,62 it is Right to the appropriate life insurance policy within the paying capacity and means of the insured. (g) The right to good health held in parmanand katara’s case. (h) In Chameli Singh v. State of U. P63. apex court held that Right to guarantee in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. (i) State of Punjab v. Baldev Singh,64 As applied to a prisoner, it would include his right to the bare necessities of life such as adequate

58 59 60 61 62 63 64

AIR 1986 SC 180 AIR 1990 SC 630 2001 Supp(4) SCR 650 AIR 1989 SC 2039 (1995) 5 S CC 482 (para 18) AIR 1996 SC 1051 AIR 1999 SC 2378

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nutrition, clothing, shelter over the head, facilities for reading, writing, interviews, with members of his family and friends, subject to, prison regulations. (j)In Satwant Singh Sawhney v. Asst. Passport Officer,65 The supreme court extended the scope of right to travel to travel abroad, is basic right to life i.e., to move out of India, and to return to India (k) The right of a prisoner to a speedy trial;66 The above rights were very categorically discussed by the Supreme Court in many landmark cases. The Supreme Court in Unni Krisnan v. State of A.P.

67

stated that,

several enumerated rights fall within Art.21, since the expression 'personal liberty' has the widest amplitude. In that case the Court itself gave the following list of the rights covered under Art.21. 5.2.18 Right against police torture In Kishore Singh VS. State of Rajasthan,68 the Supreme Court held that the use of third degree method by the police is considered as part of violation of Article 21. The court also directed the Government to take necessary steps to educate the police so as to inculcate a respect for the human person. In the instant case the Supreme Court brought home the deep concern for Human Rights by observing against police cruelty in the following words: “Nothing is more cowardly and unconscionable than a person in the police custody being beaten up and nothing inflicts a deeper wound on our Constitutional culture that a state official running berserk regardless of the Human Rights.”

65 AIR 1967 SC1936 (1844- 45) 66 ibid 67 1993 AIR 217 68 1954 CriLJ 1672

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5.2.19 Rights against Hand Cuffing In Prem Shankar v Delhi Administration,69 Justice V.R. Krishna Iyer held that hand cuffing is prima facie inhuman and therefore, unreasonable, is over harsh and at the first instance, arbitrary. The Supreme Court found the practice of using handcuffs and bar fetters on prisoners violating the guarantee of basic human dignity, which is part of the constitutional culture in India .The Supreme Court observed: “To bind a man hand-and-foot’, fetter his limbs with hoops of steel; shuffle him along in the streets, and to stand him for hours in the courts, is to torture him, defile his dignity, vulgarise society, and foul the soul of our constitutional culture”. Strongly condemning handcuffing of prisoners as a matter of routine, the Supreme Court said that to “manacle a man is more than to mortify him, it is to dehumanize him, and therefore to violate his personhood….” The rule thus laid down was reiterated in the case of Citizens for Democracy vs. State of Assam & Ors. 5.2.20 Rights against Inhuman Treatment The Supreme Court of India in several cases has taken a serious note of the inhuman treatment on prisoners and has issued appropriate directions to the concerned authorities for safeguarding the rights of the prisoners. The Supreme Court read the right against torture into Articles 14 and 19 of the Constitution. The Court observed that “the treatment of a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14”. In the Raghubir Singh v. State of Bihar,70 the Supreme Court expressed its anguish over police torture by upholding the life sentence awarded to a police officer responsible for the death of a

69 1980 AIR 1535 70 1987 AIR 149

278

suspect due to torture in a police lock – up. In Kishore Singh v. State of Rajasthan71 the Supreme Court held that the use of third degree method by police is violative of Article 21.The decision of the Supreme Court in the case of D.K. Basu is noteworthy. While dealing the case, the court specifically concentrated on the problem of custodial torture and issued a number of directions to eradicate this evil, for better protection and promotion of Human Rights. In the instant case the Supreme Court found custodial torture “a naked violation of human dignity” and ruled that law does not permit the use of third degree methods or torture on an accused person since “actions of the State must be right, just and fair, torture for extracting any kind of confession would neither be right nor just nor fair”. 5.2.21 Rights against Solitary Confinement and Bar Fetters The courts in India have consistently taken the view that imposition of solitary confinement is highly degrading and dehumanizing effect on the prisoners. It can be imposed only in exceptional cases where the convict was of such a dangerous character that he must be segregated from the other prisoners. The Supreme Court in Sunil Batra considered the validity of solitary confinement. The Supreme Court has also reacted strongly against putting bar fetters to the prisoners. The Court observed that continuously keeping a prisoner in fetters day and night reduced the prisoner from human being to an animal and such treatment was so cruel and unusual that the use of bar fetters was against the spirit of the Constitution of India. “The law of arrest is one of balancing individual rights, liberties and privileges on the one hand and individual duties, obligations and responsibilities on the other, of weighing and balancing the rights, liberties of the single individual and those of individuals collectively………”.

71 1981 AIR 625

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5.2.22 Right against delayed execution. It is basic right of an individual for execution of punishment which has been imposed upon him by the court it was held in Vatheeswara n, T.V. v. State o f T.N.72 Police visit, at residential place of victim is unlawful disturbance on the privacy of accused and his family.

Telephone tapping is also a

violation of personal liberty which is restricted and unlawful. 5.2.23 Invasion on right to privacy Telephone tapping constitutes a serious invasion of an individual’s right to privacy. The questions posed above have been fully considered by the Supreme Court in People’s Union for Civil Liberties v. Union of India. In this case Public Interest Litigation was filed protesting rampant instances of phone tapping of politician’s phones by CBI. The court ruled that ‘telephone conversation is an important facet of a man’s private life’. The right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. So, tapping of telephone is a serious invasion of privacy. This means that telephone tapping would infract Article 21 unless it is permitted under the procedure established by law. The procedure has to be “just, fair and reasonable”. Prisoner’s Privacy Rights The question of the right to be let alone again came on the front in the case of R. Rajagopal vs. State of T.N.73 also known popularly as the Auto Shankar Case. A prisoner had written his autobiography in jail describing the conditions there and the nexus between prisoners and several IAS and IPS officers. He had given the autobiography to his wife so that she may publish it in a particular magazine. However, the publication was 72 AIR 1983 SC 361 : (1 9 83) 2 SCC 68 195 73 1995 AIR 264

280

restrained in various matters and the question arose whether anyone has the right to be let alone and particularly in jail. 5.2.24 Right to fair and open trial Fair and open trial is a part of just and fair judicial process, regarding the procedure adopted by the Court, evidences and witnesses examined by the court. In other words it is whole process of evaluating the act or omission of an accused, in light of statement of witnesses, crossexamination done by the pleaders, the basic idea of fair and open trial is that the judiciary should not behave in arbitrary, discretionary, fanciful or whimsical manner or with pre-determined mind. The trial should be in open court, but if facts and the circumstances of the case are of the nature which may end in danger, the Apex Court allowed to change the venue, as in the case of former Prime Minister, but the change in timing of trial court was not allowed, as decided in the case of Commissioner of Police v. Registrar, Delhi High court, New Delhi,74 It was held in Anukul Chandra Pradhes v. Union of India,75 The same way the matter Hawala transaction was fetching the public ,media and press but, it was held that it would affect the essential of fair trial, including the presumption of innocence.It was further observed that the observation of Supreme Court would not effect or have no influence on the trial regarding the innocence of the person. 5.2.25 Right in case of acquittal In Rudal Shah vs state of Bihar76 If the trial against a prisoner concludes into acquittal the prisoner is entitled as a matter of right to be

74 1996, 6, SCC 323, AIR 1997 SC 95. 75 1996 SCC. 354 76 1983 AIR 1086

281

released forthwith. After an order of acquittal, he cannot be detained behind the prison walls. Procedure established by Law When there is deprivation of liberty, otherwise than according to law. The personal liberty of a citizen is guaranteed under the scheme of Article 20,21 & 22 of the Constitution of India, However a person may be deprived of his liberty only according to procedure established by law.It was held in Ram Narain v State of Delhi,77 that those who will call upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe and follow the rules of the law. It the aforesaid principle is not observed, the Court would set the prisoner at liberty, Apex court observed in Kishori Mohan Bera v State of W.B,78 that Such a principle would Apply In the case of punitive As well as preventive detention. In NandLal Bajaj v. State of Punjab,79 it is very clearly narrated that the trial should be absolutely fair in the sense that it should not be arbitrary, unfair or unreasonable. Art.21 further prescribes that, any procedures which are adopted by lawful enactment which may be modified, change or alter at the given point of time. It is a valid law, If it is enacted by a competent Legislature and if it does not violate any of the other fundamental rights declared by the Constitution, e.g. Art.14 20(3) or Art.22 or Art.19. 5.2.26 Right to Speedy Justice S.C. Advocate on Record Association v. Union of India,80 court interpreted that The preamble of Constitution of India very clearly 77 78 79 80

1953 SCR652 AIR 1972 SC 1749 AIR 19 81 SC 2041 AI R 1994 S.C. 26 8

282

emphasised on providing justice: Social, Economic and Political, to every citizen of India. As delay in justice is considered denied justice. The ingredients of Article 21 very clearly establish, speedy justice as an essential ingredient of just and fair justice, but the Supreme Court had advanced the concept of speedy justice. In the case of Rudul Shah v. State of Bihar. Held that It was a great tragedy of judiciary system, where an innocent person suffered the imprisonment for 14 years, because of the mistake on the part of police and judiciary, justice was delivered very late and he was declared innocent after wasting his valuable 14 years. The judicial activism also contributed a great help to protection of Human Rights in very popular cases of Hussainara Khatoon case also. The initiative is also taken for the pendency of criminal and civil cases by the Apex Court, “Evening Courts” are also been working and getting good disposal. The “Fast Track Court” is one of the contributions for the speedy justice. Further in Anil Rai v. State of Bihar81 Supreme Court took a serious note of delay in delivery of judgements. The court observed that any inordinate, unexplained and negligent delay in pronouncing the judgement by the high court infringed the right under Article 21 of the Constitution. 5.2.27 Fundamental rights of a prisoner It was established in Patnaik D. Bhuvan Mohan v. State of A.P.,82 that even when a person is convicted and imprisoned under sentence of Court, he does not lose, all the fundamental rights which are available to all persons under the Constitution, except those which cannot possibly by enjoyed owing to the fact of incarceration, such as the right to move freely [Art. 19(1) (d)] or the right to practice a procession [Art. 19(1) (g)]. Is was

81 AIR 2001 SC 3173 82 AIR 1974 SC 2092 (para 10) : (1975) 3 SCC 185

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also held in Sunil Batra’s case that prisoner has The right to acquire hold and dispose of property. Also in case Watchdogs International v. Union of India,83 court extended The right against discrimination under Art. 14. Hence, if one convict is given concessions from prison duties and obligations which are denied to another, the latter may complain of the violation of Art.14. court further commented that If the prisoner is subjected to mental torture, psychic pressure or physical infliction beyond the legitimate limits of lawful imprisonment, the prison authorities shall have to justify their action by producing legal sanction or be liable for the excesses. Held in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra,84 that

In short, a prisoner remains a human being

notwithstanding his imprisonment and would be entitled to those minimum Human Rights such as recreation, freedom from extremes of heat and cold, freedom from indignities like compulsory nudity or other vulgarities over and above those restrictions which the Prison administration is entitled to impose for maintaining internal order, discipline, prevention of escape and the like, which follow from the sentence of imprisonment. He is entitled to Constitutional protection against human degradation, so long as life lasts. The Magistrate may grant permission to handcuff in very rare cases. Right to dignity and fair treatment is not only available to a living man but also to his body after his death. Hence, the jail authorities shall not keep the body of any condemned prisoner suspended after the medical officer has declared him to be dead. 5.2.28 Protection to prisoners under preventive Detention Now the trend of non-arbitrariness test of Art.14 is applicable to determine the validity of a law of preventive detention also i.e the

83 (1998) SCC 338 84 AIR 1985 SC 231

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requirement of a fair procedure under Art. 21 also extends to cases of preventive detention In A.K. Roy v Union of India,85 case, it was observed “In order that the procedure attendant upon detentions should confirm to the mandate of Article 21 in the matter of fairness, justness and reasonableness we consider it imperative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household preferably the parent the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenue has been taken in custody, Intimation must also be given as to the place of detention, including the place where the detenu is transferred from time to time. Francis v Administrator86 An extension of this philosophy is that a person under preventive detention has the right to live with human dignity (as under Art. 21), including a right to interview with friends, family members and lawyers. It was remarked by hon’ble court in State of Maharashtra v Prabhakar87 that He is also entitled to pursue his academic pursuits, including publication of his writings, insofar as that is not inconsistent with prison discipline and security. Any unreasonable interference with this right would be an infringement of his personal liberty. In the case of Nand v State of Punjab88 Applying the requirement of a fair procedure the Court has quashed an order of detention on the ground that while the Advisory Board allowed the detaining authority to be represented by a lawyer, it refused legal assistance to the detenu. 85 86 87 88

1982SC710 1981 SC 746 1966 SC 424 1981SC 424

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As Held in Addl. Secy.v Gadia89 By a somersault, thus, Indian Supreme Court has come to the opposite pole to hold that the rights of a detenu under preventive detention are to be drawn not only from Art 22 but also from those enshrined in Arts. 14, 19 and 21. 5.2.29 Right to Reasonable Wages in Prison Remuneration, which is not less than the minimum wages, has to be paid to anyone who has been asked to provide labour or service by the state. The payment has to be equivalent to the service rendered, otherwise it would be ‘forced labour’ within the meaning of Article 23 of the Constitution. There is no difference between a prisoner serving a sentence inside the prison walls and a freeman in the society. In the case of Mahammad Giasuddin v. State of A.P90. the court directed the state to take into account that the wages should be paid at a reasonable rate. It should not be below minimum wages, this factor should be taken into account while finalizing the rules for payment of wages to prisoners, as well as to give retrospective effect to wage policy. Right to be informed of offence In case Madhu Limaye91 Held that The framing of a ‘charge’ or accusation against the arrested person for trial gives him another right, viz., the right to be informed of the specific offence with which he is charged, with necessary particulars. 5.2.30 Natural justice for prisoners It was pronounced in Charan v Union of India92 in India, natural justice has been placed or much higher pedestal than in England, by making

89 90 91 92

(1991) 1 SCJ.200 1977 AIR 1926 1969 SC 1014 1990 SCC 613

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it an integral part of the Fundamental Rights under Arts. 14, 19 and 21 of the Constitution. In the result, contravention natural justice would, in India invalidate not only an administrative order but the law itself, which is not possible in the U.K. 5.2.31 Right to get bail Right to bail is a right with a vital importance. Prior to independence and formation of the Constitution, the right to bail was provided under the provisions of Code of Criminal Procedure. When bail is rejected the personal liberty of an accused is deprived, the judiciary must exercise the powers to grant the bail. The significance and the sweep of Article 21 makes the deprivation of liberty, a matter of grave concern and permissible only when the law authorises. It was held in State of Gujarat v. Lalsingh,93 that it is Right of the accused in bailable offence to get bail; it cannot be curtailed by any executive

direction

or

instruction.

it

was

Sukharnariyan Bakhiya v. Rajnikant R. Shah,

further 94

extended

in

Gujarat that The court

has power to release a person on bail even in non bailable offence. Same way in Bhagirathi Barik v. State,95 if once the bail is granted for a heinous crime and accused is enjoying the bail for considerable period without any protest, bail ought not to be cancelled. In other words, bail may not be granted lightly in heinous offence but simultaneously once granted it cannot be cancelled without proper protest. The principles can be laid down for granting the bail as under:i.

Crime History, education and social background of the accused

93 1980 Cr.LJ. 1413 94 1982 Cr.L.J . 2148 95 1993, Cr.L.J. 838 Orrissa .

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ii.

Nature and seriousness of crime and surroundings.

iii.

Severity of offence and multiplicity of offence.

iv.

Stage of investigation and evidences collected by the police authority.

v.

Scope and chances of manipulations by the accused.

vi.

Number of witnesses, Status of witnesses, Probabilities of hostile the witnesses by the accused.

vii.

Possibilities of repetition of crime.

viii.

Possibilities of absconding and non-availability of accused during the trial.

ix.

Probable endangerments to victim or family members of victim or society in general by granting the bail to the accused

Justice Goswami observed in Gurcharan Singh v. State96 “We may repeat the two paramount considerations viz., likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair of the case in a Court of Justice. It is essential that due and proper weight should be bestowed on these two factor apart from other. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstance of each case will govern the exercise of judicial discretion in granting or canceling bail.” Justice Bhagwati in a case State of Rajasthan v . Balchand97 says “The Bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situated would be able to secure their freedom because they can afford and furnish bail.” This discrimination arises even if the amount of the bail set by the Magistrate is not so high ‘for a large majority of those who are brought before the courts in criminal cases 96 (1978) 1 SCC 118 97 AIR 1977S C 2477

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are so poor that they would find it difficult to furnish bail even in small amount. This inbuilt discrimination in the bail system is bound to shake the confidence of such prisoners in the judicial system. 5.2.32 Right to Compensation: If a person is being deprived of her life and personal liberty plus dignity by unfair or illegal procedure the consequences of such detention will enable her to get the compensation from the court against the negligence of the State. The right to get compensation against illegal and unfair deprivation of liberty was discussed in Rudul Shah’s case98 where accused was acquitted by criminal court of Muzaffarpur on June 3, 1968 but continued to be in jails for 14 long years till he was finally released on October 16, 1982. He filed a petition in the Supreme Court, against illegal detention. The petitioner not only got the sympathy of the court but the Supreme Court asked the State administration to give a reasonable explanation as to why the State detained an innocent person in jail for 14 years who was acquitted by a competent court after a normal trial. Hence, Court ordered for compensation. In Saheli, A women’s Resource Centre vs. Commissioner of Police, Delhi case, the police officers raided the house of Mrs. Kamalesh Kumari. The Victim was staying in a house with her three children. The landlord of that house took the help of police to forcibly evict them from the house. During the police raid, the police trampled upon nine years child of Kamalesh Kumari resulting the death of the child. It is a well settled that the state is responsible for the tortious acts of its employees. In the instant case court observed that “in the matter of liability state is liable for tortious acts committed by its employees in the course of their employment. On 98 AIR 1988 SC 1086.,

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these facts, the Supreme Court ordered for payment of Rs. 75,000/- as compensation to the mother of the deceased child. In this case, the court ordered to recover the amount of compensation from the concerned police officer. 5.2.33 Right to be represented in Court: The courts in india has laid down that any practice which restricts or disables a person to exercise his right to appeal amounts to unfair practice and is against the principles of natural justice provided by Article 21. The court enumerated two ingredients of the fair procedure:That the convict should be provided a copy of judgement within a reasonable period so that he may exercise his right to appeal and that the free legal aid should be provided to the person concerned if he somehow is not able to arrange the same owing to his disability or poverty. In the Superintendent of Legal Affairs V. Bhowmik.99 Case the Supreme Court again discussed the concept of legal aid and fair procedure. The Supreme Court laid down that the right to `free legal service’ is an essential ingredient of fair and reasonable procedure as implicit in the right of personal liberty contained in Article 21 of the Constitution. The obligation of the State to provide for `free legal service’ to a person cannot be done away with by saying that it is unable to provide the same due to financial and administrative reasons. It is also the duty of the court to see and inform the accused that he has a right to legal service, even if he does not ask for the same. 5.2.34 Arrested person not subject to unnecessary restraint: An arrested person may end up escaping from the custody because nobody is happy in lock-ups. To make sure that all the accused are treated 99 AIR 1981 SC 917

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well by the Police Officers, jailors and other detaining authorities, they have a duty to strict confinement. It may include even tying individual accused together, both hands and legs together. It is their duty to produce them wherever needed. It is a trust from the state entrusted to them to make sure that they execute the same. If they fail to do so and the criminals or accused persons run away from custody, they will be liable of breach of trust and be punished by the Government which trusted them. Finally, it must be clear that the police, judiciary, jailers, care homes and other detaining authorities authorized to arrest detain and interrogate against an offence, are the trustees of the government they act on behalf of the government for maintaining law and order. But since there is protection for the accused in custody of police or judiciary they should not be subjected to unnecessary restraints. In section 49 of the Cr.P.C., a protection is provided to the arrested person not to be restrained unnecessary. In Afzal and another V. State of Haryana100 court said that the section says that, the person arrested shall not be subjected to more restraint than necessary to prevent his escape. 5.2.35 Prisoner’s Right to education Education is required for the growth and betterment of life and prison should not be bar for that in all cases. State should try to provide basic education to inmates within permitted limits. Himachal Pradesh High Court in ‘Gurdev Singh and others vs. State of Himachal Pradesh101 gives emphasis on the provisions for education and vocational training of the prison inmates to improve their skills and capabilities. 5.2.36 Right to dignity for women prisoners As against the part of the human dignity it is provided that while arresting a women, it should be ensured that she is arrested by a lady police

100 1994 CrLJ 1240 101 1992 Cr. L.J.’

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constable and the arrest must be before sunset and after sunrise, and that she should be accorded all the human decency during the time of arrest and in custody. She should not be subjected to torture, rape, cruel and other inhuman acts because she too is a human being. Though in the latest judgment with regard to arrest and detention of women in State of Maharashtra v. Christian Community102 Supreme Court has ruled that women can be arrested without the presence of lady police constable and at any time of the day or night but it should be borne in mind that it is detrimental to the safety and security of women. 5.2.37 Remedy for protection of right of prisoners Habeas corpus:- The principal remedy against arbitrary detention including preventive detention, is the common law writ of habeas corpus. In India, the constitutional remedy for protection of fundamental rights is the remedy by way of the writs specified in Arts. 32 and 226, which include habeas corpus . After the case of Kamla v State of Maharashtra.103 It is now established that habeas corpus would lie in case of preventive detention for violation of Art. 21 as well as the terms of Art. 22(4)-(5). Hence, the scope of review of an order of preventive detention on a Petition for habeas corpus is wide open to include the following questions: (i)

Whether the statue authorizing preventive detention is invalid for want of legislative competence of the relevant Legislature.

(ii)

Held in case Dayal v D.M

1973104 whether the procedural

requirements of that statute have been strictly complied with or not has to be satisfied by court .

102 Appeal No.508 with 509 of 1996 103 1981 SC 851 104 SC 183

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(iii)

Whether the order of detention is otherwise vitiated by ultra vires, e.g., an abuse or colorable use of the statutory power; or mala fides.

(iv)

Whether there were relevant materials before the detaining authority to satisfy himself that there was a compelling necessity to pass the detention order, or whether he duly applied his mind to that question.

5.3

CONCEPT OF JUDICIAL REVIEW It is the review of the Judicial Activities for the Indian Prison and

Prisoners. The Indian judiciary, especially at the level of the Supreme Court and High Courts, has for long been concerned with the concept and practice of justice. What constitutes justice and for whom? How do we truly achieve the laudable constitutional precepts that ‘no one is above the law’ and that ‘all persons are entitled to the equal protection of the law’? How do we cope with the problem that in principle, ‘all persons are equal under the law’ but in reality, ‘some are more equal than others’? In its infancy, immediately after independence, the Supreme Court of India grappled, not always successfully, with the problem of striking a balance between the much-needed programmes of economic and social reform (for example, land reform and land redistribution) on the one hand and establishing the credibility of the newly-born Indian State in terms of fostering the rule of law and respecting the rights vested under laws that preceded independence and the very Constitution itself , on the other. During the first couple of decades when, for all practical purposes, India was functioning as a de facto one-party political system, the Supreme Court focused on promoting the values of constitutionalism, separation of powers and checks and balances over and in each organ of the State. The Supreme Court and the High Courts were ever-vigilant in their review of executive actions, hence ensuring the public requisite protection against the excesses of authority or abuses of power. They were equally vigilant in their review of legislative actions, both in respect of lawmaking as well as in balancing legitimate 293

parliamentary powers, (necessary for the effective functioning of Parliament) with parliamentary privileges, notably that of punishing for contempt. In the decades thereafter, the Supreme Court turned its attention towards the frequency with which the Parliament was amending the Constitution using the dominance of the single political party at the both national and the state levels to the maximum. The Court elaborated upon the distinction between the constituent and legislative power. Moreover, as the judiciary and the Indian political system matured, the Supreme Court firmly established the primacy of the Constitution through its articulation of the basic structure doctrine, thereby safeguarding those features that are inherent in Constitution from being altered through the mere exercise of legislative power. In post-independence India, the inclusion of explicit provisions for ‘judicial review’ were necessary in order to give effect to individual and group rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar, who chaired the drafting committee of our Constituent Assembly, had described the provisions related to the same as the ‘heart of the Constitution’. Article 13(2) of the Constitution of India prescribes that the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in the contravention of the aforementioned mandate shall, to the extent of the contravention, be void. While judicial review over administrative action has evolved on the lines of common law doctrines such as ‘proportionality’, ‘legitimate expectation’, ‘reasonableness’ and principles of natural justice, the Supreme Court of India and various High Courts were given the power to rule on the constitutionality of the legislative as well as administrative actions. In most of the cases, the power of judicial review is exercised to protect and enforce the fundamental rights guaranteed in Part III of the Constitution. The higher 294

courts are also approached to rule on questions of legislative competence, mostly in the context of Centre-State relations since Article 246 of the Constitution read with the 7th schedule, contemplates a clear demarcation as well as a zone of the intersection between the law-making powers of the Union Parliament and the various State Legislatures. Hence the scope of judicial review before Indian courts has evolved in three dimensions – firstly, to ensure fairness in administrative action, secondly to protect the constitutionally guaranteed fundamental rights of the citizens and thirdly to rule on the questions of legislative competence between the centre and the states. The power of the Supreme Court of India to enforce the fundamental rights what is derived from Article 32 of the Constitution. It gives the citizens the right to directly approach the Supreme Court for seeking remedies against the violation of these fundamental rights. This entitlement to constitutional remedies is itself a fundamental right and can be enforced in the form of writs evolved in common law – such as habeas corpus (to direct the release of a person detained unlawfully), mandamus (to direct a public authority to do its duty), quo warranto (to direct a person to vacate an office assumed wrongfully), prohibition (to prohibit a lower court from proceeding on a case) and certiorari (power of the higher court to remove a proceeding from the lower court and bring it before itself). Besides the Supreme Court, the High Courts located in the various States are also designated as the constitutional courts and Article 226 permits citizens to file similar writs before the High Courts. With the advent of Public Interest Litigation (PIL) in recent decades, Article 32 has been creatively interpreted to shape innovative remedies such as a ‘continuing mandamus’ for ensuring that executive agencies comply with judicial directions. In this category of the litigation, the judges have also imported private law remedies such as ‘injunctions’ and ‘stay orders’

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into what are essentially public law-related matters. Successful challenges against statutory provisions result in reliefs such as the striking down of statutes or even reading down of statutes, the latter implying that courts reject a particular approach to the interpretation of the statutory provision rather than rejecting the provision in its entirety. Beginning with the first few instances in the late-1970’s, the category of Public Interest Litigation (PIL) has come to be associated with its own ‘people-friendly’ procedures. The foremost changes, that came in the form of the dilution of the requirement of ‘locus standi’ for initiating proceedings. Since the intent was to improve access to justice for those who were otherwise too poor to move the courts or were unaware of their legal entitlements and the Court allowed actions to be brought on their behalf by social activists and lawyers. In the numerous instances, the Court took suo moto cognizance of matters involving the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed to sitting judges. In Public Interest Litigation (PIL), the nature of the proceedings itself does not exactly fit into the accepted common-law framework of adversarial litigation. The courtroom dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial environment may prevail in cases where actions are brought to highlight administrative apathy or the government’s condonation of abusive practices, in most public interest related litigation, the judges to take on a far more active role in the literal sense as well by posing questions to the parties as well as exploring solutions. Especially in actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to the collective problem-solving rather than an acrimonious contest between the counsels. Since these matters are filed straightaway at the level of the Supreme Court or the High

296

Court, the parties do not have a meaningful opportunity to present the evidence on a record before the start of the court proceeding. To overcome this problem, our Courts have developed the practice of appointing ‘factfinding commissions’ on a case by a case basis which are deputed to inquire into the subject-matter of the case and the report back to the Court. These commissions usually consist of experts in the concerned fields or practicing lawyers. In matters involving the complex legal considerations, the Courts also seek the services of senior counsels by appointing them as amicus curiae on a case-to-case basis. 5.3.1 Objections to the doctrine of ‘judicial review’ However, in many jurisdictions - questions have been asked about the proper understanding of ‘judicial review’ as well as its expansion. There are two principled objections offered against the very idea of ‘judicial review’ in a democratic order. The first idea is that the judiciary being an unselected body is not accountable to the people through any institutional mechanism. In many countries the judges are appointed through the methods involving selection or nomination, in which ordinary citizens do not have a say. It is argued that allowing the judiciary to rule on the validity of the enactments passed by a popularly selected legislature amounts to a violation of the idea of ‘separation of powers’. Skepticism is also voiced against the judges using their personal discretion to grant remedies in areas in which they have no expertise. This critique locates the role of the judiciary as a purely one of the resolving disputes between the parties and deferring to the prescriptions of the selected legislature while doing so. In the Common Law realm, this critique is based on the age old notion of the ‘parliamentary sovereignty’. With respect to the inherent value of a written constitution that also incorporates ‘judicial review’, it would be appropriate to refer to an observation made by Justice Aharon Barak:

297

“To maintain real democracy and to ensure a delicate balance between its elements -a formal constitution is preferable. To operate effectively, a constitution should enjoy normative supremacy, should not be as easily amendable as the normal statute, and should give the judges such power to review the constitutionality of legislation. Without any formal constitution, there is not any legal limitation on legislative supremacy, and the supremacy of human rights can exist only by the grace of the majority’s self-restraint. A constitution, however, imposes legal limitations on the legislature and guarantees that human rights are protected not only by the self restraint of the majority, but also by the constitutional control over the majority. Hence, the need for a formal constitution.” However, we must also consider another nuanced objection to the doctrine of ‘judicial review’. It is reasoned that the substantive contents of the constitution adopted by a country at a particular point of the time reflect the will of its framers. However, it is not much necessary that the intent of the framers corresponds to the will of the majority of the population at any given time. In the Indian setting, it is often argued that the members of the Constituent Assembly were overwhelmingly drawn from the elite backgrounds and hence did not represent popular opinions on several vital issues. Furthermore, the adoption of a constitution entails a country’s precommitment to its contents and the same become binding on future generations. Clearly the understanding and the application of the constitutional principles cannot remain static and hence a constitutional text also lays down a procedure for its amendment. This power of the amendment by the legislature is not an unlimited and the idea of ‘judicial review’ designates the higher judiciary as the protector of the constitution. This scheme works smoothly as long as the demands and aspirations of the majority of the population correspond with the majoritarian policy-choices embodied in legislative or executive acts

298

come into conflict with constitutional provisions. The higher judiciary is then required to scrutinize the actions of its equivalent branches of government. Some scholars have also argued that the fact situations of this type involve the tensions between the understanding of the words ‘constitutionalism’ and ‘democracy’ respectively. Hence, it is postulated that the provision for ‘judicial review’ gives a self-contradictory twist to the expression ‘constitutional democracy’. In this regard the role of the judiciary could be described as one of protecting the counter majoritarian safeguards enumerated in the Constitution. It is the apt to refer to an opinion given by Justice Robert Jackson where it was held that the citizens could not be compelled to salute the U.S. national flag if the same offended their religious beliefs. He observed as follows: ‘The very purpose of the bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of the majorities and officials and to establish them as legal principles to be applied by the Courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of the worship and assembly, and the other fundamental rights may not be submitted to vote: they depend on the outcome of no elections.’ For example, in India there is considerable disenchantment with the constitutional provision which places the personal laws of religious groups beyond the scope of constitutional scrutiny. The framers are preferred this position in order to protect the usages and customs of the religious minorities with regard to the guarantee of ‘freedom of religion’. However, there have been persistent majoritarian demands for a constitutional amendment of this position in order to enact a ‘Uniform Civil Code’ for regulating the private relations of citizens belonging to all religions. Even though there may be a good case for some specific changes to personal laws 299

with the objective of ensuring the gender-justice, the demands for the whole scale rejection of the personal laws threaten a majoritarian imposition. Noted that a scholar Samuel Isacharoff has argued that in fractured or pluralist societies it is beneficial to implement a constitutional scheme in order to restrain destructive majoritarian tendencies. 5.4

SCOPE OF RIGHTS AND EXPANSION BY COURT It can be stated with some certainty that the doctrine of ‘judicial

review’ helps in binding a polity to its core constitutional principles. In the post World War II era, the memory of devastating conflicts and oppressive colonialism ensured that these principles were initially centered on the protection of basic civil-political rights such as free speech, assembly, the association and movement as well as the guarantees against abusive practices by state agencies such as arbitrary arrest, detention, torture and extra-judicial killings. The growth of the Constitutionalism has also been a synonymous with that of the liberal values which seek to safeguard an individual’s dignity as well as collective welfare at the same time. In highly disparate and iniquitous societies, such a commitment also requires some counter majoritarian safeguards. Depending on the social profile of a country’s population, these safeguards may be in the nature of the exceptional treatment for ethnic, the religious and the cultural minorities as well as proactive measures designed for the advancement of historically disadvantaged communities and poorer sections of society. Such safeguards which are meant to tackle the social differences based on the factors such as religion, caste, gender, class and region among others, also have clear socio-economic dimensions. Hence, the role of the Courts in protecting constitutional values goes beyond the enforcement of clearly defined civil political rights that could be litigated by the individual citizens and incorporates a continuously evolving understanding of ‘group rights’ which necessarily have socio-economic dimensions as well.

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To appreciate the transformations in the substantive nature of justifiable rights, it is necessary to reiterate the theoretical distinction between their ‘negative’ and ‘positive’ dimensions. The classifications of enumerated rights can be based on who they are directed against and whether they involve a ‘duty of restraint’ or a ‘duty to facilitate entitlements’. The language of the substantive right usually indicates whether it is directed against the state agencies, private actors or both. For instance in the Indian Constitution, civil-political rights such as ‘freedom of speech, assembly and association’ are directed against the State, since the text expressly refers to the State’s power to impose reasonable restrictions on the exercise of the same. This implies that under ordinary conditions, the State has an obligation not to infringe on such liberties. This ‘duty of restraint’ forms the basis of rights with a ‘negative’ dimension. Hence in the early years of the Indian constitutional experience, civil liberties and the protection against the deprivation of life and liberty were understood mainly as imposing duties of restraint on governmental agencies as well as private citizens. However, in contrast to these justiciable ‘negative’ rights the directive principles of state policy allude to several socio-economic objectives which had a ‘positive’ dimension. Even though the directive principles are non-justiciable, their language is couched in the terms of positive obligations on governmental agencies to enable their fulfillment. The Indian Courts have responded to this hierarchy between ‘negative’ and ‘positive’ rights by trying to collapse the distinction between the same. While the fundamental rights of citizens enumerated in Part III of the Constitution are justiciable before the higher judiciary, Part IV deals with the ‘Directive Principles of State Policy’ that largely enumerate objectives pertaining to socio-economic entitlements. The Directive Principles aim at creating an egalitarian the society whose citizens are free from all the abject physical conditions that had hitherto prevented them from fulfilling their best selves. They are the creative part of the

301

Constitution, and the fundamental to the governance of the country. However, the key feature is that the Directive Principles are ‘nonjusticiable’ but are yet supposed to be the basis of executive and legislative actions. It is interesting to note that at the time of drafting of the Constitution, some of the provisions which are presently the part of the Directive Principles were part of the declaration of the fundamental rights adopted by the Congress party. K.M. Munshi (a noted lawyer and a member of the Constituent Assembly) had even included in his draft list of rights, the ‘rights of workers’ and ‘social rights’, which included provisions protecting the women and children and guaranteeing the right to work, a decent wage, and a decent standard of living. Subsequently, the objective of ensuring these entitlements was included in the Directive Principles. The primordial importance of these principles could be understood by the following words of Dr. B.R Ambedkar, when he insisted on the use of the word ‘strive’ in the language of Article 38 which mentions the governmental objective of an equitable distribution of material resources: “We have used it because it is our intention that even when there are circumstances which prevent the Government, or which stand in the way of the Government giving effect to these directive principles, they shall, even under hard and unpropitious circumstances, always strive in the fulfillment of these directives. … Otherwise it would be open for any Government to say that the circumstances are so bad, that the finances are so inadequate that we cannot even make any effort in the direction in which the Constitution asks us to go.”105 Thus, the enforceability of measures relating to social equality though incorporated in the aspiration terms was never envisaged as being dependent only on the availability of state resources. In some cases, the Courts have privileged fundamental rights over directive principles while in others they have creatively drawn a harmonious relationship between the

105 [Constituent Assembly Debates, 19-11-1948]

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two. An example of this is the expansion of the conception of ‘personal liberty’ under Article 21 of the Constitution which was traditionally invoked in the civil and political context to check governmental abuses. The judicially expanded understanding of the same now includes the several socio-economic entitlements for the citizens which place positive obligations on the state. What is interesting is that the reading in of these socio-economic entitlements by judges has often directly referred to the language of the provisions contained in the part dealing with directive principles. In this sense, the judicial creativity has transformed the substantive character of the protection of life and liberty. Article 21 of the Constitution of India reads as follows: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The interpretation of this article in the early years of the Supreme Court was that ‘personal liberty’ could be curtailed as long as there was a legal prescription for the same. In A.K. Gopalan’s case. the Supreme Court had ruled that ‘preventive detention’ by state agencies was permissible as long as it was provided for under a governmental measure (e.g. legislation or an ordinance) and the Court could not inquire into fairness of such a measures. It was held that the words ‘procedure established by law’ were different from the ‘substantive due process’ guarantee provided under the 14th amendment to the US Constitution. It was also reasoned that the framers of the Constitution of India consciously preferred the former expression over the latter. This narrow construction of the Article 21 prevailed for several years until it was changed in Maneka Gandhi’s case. In that decision, it was held that governmental restraints on ‘personal liberty’ should be collectively tested against the guarantees of the fairness, non-arbitrariness and the reasonableness that were prescribed under Articles 14, 19 and 21 of the Constitution. The Court developed a theory of ‘inter-relationship of rights’ to hold that governmental action

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which curtailed, either of these rights should meet the designated threshold for restraints on all of them. In this manner, the Courts incorporated the guarantee of ‘substantive due process’ into the language of Article 21. This was followed by a series of decisions, where the conceptions of ‘life’ and ‘personal liberty’ were interpreted liberally to include rights which had not been expressly enumerated in Part III. In the words of Justice Bhagwati: “we think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of the life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms.” Notably, over the decades, the Supreme Court has affirmed that both the Fundamental Rights and Directive Principles must be interpreted harmoniously. It was observed in the Kesavananda Bharati case, that the directive principles and the fundamental rights supplement each other and aim at the same goal of bringing about a social revolution and the establishments of a welfare State, the objectives which are also being enumerated in the Preamble to the Constitution. Furthermore, in Unni Krishnan, J.P. v. State of Andhra Pradesh, Justice Jeevan Reddy declared: “The provisions of Parts III and IV are supplementary and complementary to each other and not exclusionary of each other and that the fundamental rights are but the means to achieve the goal indicated in Part IV”. This approach of harmonizing the fundamental rights and the directive principles has been successful to a considerable extent. As indicated earlier, the Supreme Court has interpreted the ‘protection of life and personal liberty’ as one which contemplates socio-economic entitlements. For instance, in Olga Tellis v. Bombay Municipal

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Corporation,106 a journalist had filed a petition on behalf of hundreds of pavement-dwellers who were being displaced due to construction activity by the respondent corporation. The Court recognised the ‘right to livelihood and housing’ of the pavementdwellers and issued an injunction to halt their eviction. In Parmanand Katara v. Union of India107, the Court held that no medical authority could refuse to provide immediate medical attention to a patient in need in emergency case; The public interest litigation had arisen because many hospitals were refusing to admit patients in medico-legal cases. Hence, the Supreme Court ruled that access to healthcare, is a justiciable right. In another prominent Public Interest Litigation (PIL), the Supreme Court ordered the relocation of the hazardous industries located near residential areas in New Delhi. In the process, it spelt out the citizens’ ‘right to clean environment’ which was in turn derived from the protection of life and liberty enumerated in Article 21. The court has also recognized access to free education as a justiciable right. This decision prompted a Constitutional amendment which inserted in Article 21-A into the Constitutional text, thereby guaranteeing the right to elementary education for children aged between 6-14 years. The Courts have also been pointed to the Directive principles in interpreting the prohibitions against forced labor and child labor. The enforcement of such rights leaves a lot to be desired, but the symbolic value of their constitutional status should not be underestimated. 5.5

PUBLIC INTEREST LITIGATION IN INDIA The unique model of public interest litigation that has evolved in

India not only looks at issues like consumer protection, gender justice, 106 107

1986 AIR 180, 1985 SCR Supl. (2) 51 AIR 1989 SC 2039

305

prevention of environmental pollution and ecological destruction, it has also directed towards the finding of the social and political space for the disadvantaged and other vulnerable groups in society. The Courts have given decisions in cases pertaining to different kinds of entitlements and protections such as the availability of the food, access to the clean air, safe working conditions, political representation, affirmative action, antidiscrimination measures and the regulation of prison conditions among others. In Municipal Council, Ratlam v. Vardichand, the Court recognized the locus standi of a group of citizens who sought directions against the local Municipal Council for the removal of open drains that caused stench as well as diseases. The Court, recognizing the rights of the group of the citizens, asserted that if the: "…centre of gravity of justice is to shift as indeed the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, and the court must consider the issues as there is need to focus on the ordinary men." In Parmanand Katara v. Union of India, the Supreme Court accepted an application by an advocate that highlighted a news item titled "Law Helps the Injured to Die" published in a national daily, The Hindustan Times. The petitioner brought to light the difficulties faced by persons injured in road and other accidents in availing the urgent and life-saving medical treatments, since many hospitals and doctors refused to treat them unless certain procedural formalities were completed in these medico-legal cases. The Supreme Court has directed medical establishments to provide the instant medical aid to such injured people, notwithstanding the formalities to be followed under the procedural criminal law.

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In many other situations, the Supreme Court has risen to the changing needs of society and taken proactive steps to address these needs. It was therefore the extensive liberalization of the rule of the locus standi which gave birth to a flexible public interest litigation system. A powerful thrust to the public interest litigation was given by a 7-judge bench in the case of S.P. Gupta v. Union of India. The judgment recognized the locus standi of the bar associations to file writs by way of the public interest litigation. In this particular case, it was accepted that they had a legitimate interest in questioning the executive’s policy of arbitrarily transferring High Court judges, which threatened the independence of the judiciary. Explaining the liberalization of the concept of locus standi, the court opined: “It must now be regarded as well-settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or the injury caused to such person does not go underdressed and justice is done to him.” For instance, in People’s Union for Democratic Rights v. Union of India, 1982108 a petition was brought against governmental agencies which questioned the employment of underage labourers and the payment of wages below the prescribed statutory minimum wage-levels to those involved in the constructions of the facilities for the then upcoming Asian Games in New Delhi. The Court took a serious exception to these practices 108

AIR 1473, 1983 SCR (1) 456

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and has ruled that they violated constitutional guarantees. The employment of children in construction-related jobs clearly fell afoul of the constitutional prohibition on child labor and the non-payment of the minimum wages was equated with the extraction of forced labor. Similarly, in Bandhua Mukti Morcha v. Union of India,109 the Supreme Court’s attention was drawn to the widespread incidence of the age-old practice of bonded labour which persists despite the constitutional prohibition. The greatest contribution of Public Interest Litigation has been to enhance the accountability of the governments towards the Human Rights of the poor. Public Interest Litigation interrogates power and makes the courts as people’s court. The Supreme Court of India in a number of important decisions has significantly expanded the scope and frontier of Human Rights. Public interest matters today focus more and more on the interests of the Indian middle classes rather than on the oppressed classes. PIL seeking order to ban Quran transmission of T.V. Serials, implementation of Consumer Protection Law removal of corrupt ministers, invalidation of irregular allotment of petrol pumps and government accommodation prosecution of politicians and bureaucrats for accepting bribes and Kickbacks through Hawala transactions, better service conditions of the members of lower judiciary or quashing selection of university teachers are some blatant examples espousing middle class interests. Some initial successes of PIL, however cannot certify that it shall always remain an effective instrument for protection of Human Rights. The future of PIL will depend upon who uses it and for whom..

5.6

PUBLIC INTEREST LITIGATION AND MONETARY COMPENSATION It is also through the vehicle of PIL, that the Indian Courts have

come to adopt the strategies of awarding the monetary compensation for 109

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constitutional wrongs such as unlawful detention, custodial torture and extra-judicial killings by state agencies. In the realm of the environmental protection, many of the leading decisions have been given in actions brought by the renowned environmentalist M.C. Mehta. He has been a tireless campaigner in this area and his petitions have resulted in orders placing strict liability for the leak of Oleum gas from a factory in New Delhi, directions to check pollution in and around the Ganges river, the relocation of hazardous industries from the municipal limits of Delhi, the directions to state agencies to check pollution in the vicinity of the Taj Mahal and several afforestation measures. A prominent decision was made in a petition that raised the problem of the extensive vehicular air pollution in Delhi. The Court was faced with the considerable statistical evidence of increasing the levels of hazardous emissions on account of the use of diesel as a fuel by commercial vehicles. The Supreme Court has decided to make a decisive intervention in this matter and ordered government-run buses to shift to the use of Compressed Natural Gas (CNG), an environment-friendly fuel. This was followed some time later by another order that required privately-run ‘auto rickshaws’ (three-wheeler vehicles which meet local transportation needs) to shift to the use of CNG. At the time, this decision was criticized as an unwarranted intrusion into the functions of the pollution control authorities, but it has now come to be widely acknowledged that it is only because of this judicial intervention that the air pollution in Delhi has been checked to a substantial extents. Another crucial intervention was made in Council for Environment Legal Action v. Union of India110, wherein a registered NGO had sought the directions from the Supreme Court in order to tackle ecological degradation in coastal areas. In recent years, the Supreme Court has taken on the mantle of monitoring forest conservation measures all over 110

AIR 1996 SC 1446

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India, and a special ‘Green bench’ has been constituted to give directions to the concerned governmental agencies. At present, I am part of this Green bench and can vouch for the need to maintain the judicial supervision in order to protect our ecological resources from the rampant encroachments and administrative apathy. A recent example of this approach was the decision in People’s Union for Civil Liberties v. Union of India, where the Court have sought to ensure the compliance with the policy of supplying mid-day meals in government-run primary schools. The mid-day meal scheme had been launched with much fanfare a few years ago with the multiple objectives of encouraging the enrolment of the children from low income backgrounds in the schools and also ensuring that they received adequate nutrition. However, there had been widespread reports of the problems in the implementation of this scheme such as the pilferage of food grains. As a response to the same, the Supreme Court issued orders to the concerned governmental authorities in all the States and Union Territories, while giving elaborate directions about the proper publicity and implementation of the said scheme. 5.7

JUDICIARY PLAYING KEY ROLE FOR PRISON SYSTEM A study of the reported cases of the Supreme Court speak of the fact

that the Indian judiciary, through its positive approach and activism, has served as an institution for providing effective remedy against the violations of Human Rights. The functioning of judiciary reveals that it has exercised its powers in the most creative manner and devised new strategies to ensure the protection of Human Rights of the prisoners. In the recent past the Supreme Court of India has used the strategy of Public Interest Litigations as an aid to enforce the rights of prisoners. Judicial conscience recognized that the prisoners are also human beings and that the purpose of imprisonment is to reform them rather than to make them hardened 310

criminals. From the perusal of the above contribution it is evident that the Indian Judiciary has been very sensitive and alive to the protection of the Hu- man Rights of the prisoners. It has, through judicial activism initiated new tools and devised new remedies for the purpose of protecting the most precious Human Rights of the prisoners. Despite the deficiencies in the existing enactments, the judiciary on its own creative spirit had contributed much to prison justice thereby ensuring fundamental human rights of prisoners.The promotion and the protection of the Human Rights is depends upon the strong and independent judiciary. The main study here would be given wide coverage to the functional aspect of the judiciary and see how far the Apex judiciary in India has achieved a success in discharging the heavy responsibility of safeguarding Human Rights in the light of our Constitutional mandate. The major contributions of the judiciary to the Human Rights jurisprudence have been two fold: (1) the substantive expansion of the concepts of the Human Rights under Article 21 of the Constitution, and (2) the procedural innovation of the Public Interest Litigation (PIL). 5.7.1 Constitutional remedies towards Human Rights of prisoners Articles 32 and 226 are the provisions of the Constitution that together provide an effective guarantee that every person has a fundamental right of access to courts. Article 32 confers power on the Supreme Court to enforce the fundamental rights. It provides a guaranteed, quick and summary remedy for enforcing the Fundamental Rights because a person can go directly to the Supreme Court without moving from lower to higher court as he has to do in other ordinary litigations. The Supreme Court is thus protector of the constitution and guarantor of the fundamental rights. The High courts have a parallel power under Article 226 to enforce the fundamental rights. Article 226 differs from Article 32 in the sense that

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whereas Article 32 can be invoked only for the enforcement of Fundamental Rights mentioned in fundamental rights, Article 226 can be invoked not only for the enforcement of Fundamental Rights but for any other purpose as well. This means that the Supreme Court’s power under Article 32 is restricted as compared with the power of a High Court under Article 226, for, if an administrative action does not affect a Fundamental Right, then it can be challenged only in the High Court under Article 226, and not in the Supreme Court under Article 32. Another corollary to this difference is that a PIL (Public Interest Litigation) writ petition can be filed in Supreme Court under Article 32 only if a question concerning the enforcement of a fundamental right is involved. Under Article 226, a writ petition can be filed in a High court whether a Fundamental Right is involved or not. The provision of legal aid is fundamental to promoting access to courts. The Supreme Court of India has taken imaginative measures to promote access to justice when people would otherwise be denied their fundamental rights. It has done this by the twin strategy of loosening the traditional rules of locus standi, and relaxing procedural rules in such cases. Thus where it receives a letter addressed to it by an individual acting pro bono publico, it may treat the letter as a writ initiating legal proceedings. In appropriate cases it has appointed commissioners or expert bodies to undertake fact-finding investigations. Thus, the mechanism of PIL now serves a much broader function as It is being used to ventilate public grievances where the society as a whole, rather than a specific individual, feels aggrieved. By virtue of these Article 32 and 226 , the Supreme Court and high court has enlarged the scope of the Judicial Review to include review of all those measures, which either violate the Fundamental Rights or which are violative of the Basic Structure of the Constitution. The power of Judicial Review exercised by the Supreme Court is intended to keep every organ of

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the state within its limits as it is in America where rule of check and balance prevails. Article 32 of constitution itself has been described as fundamental right as well as an integral part of the Basic Structure of the Constitution. So the validity of a law could be challenged under the Article 32 if it involves a question of enforcement of any Fundamental Rights. Hence, the jurisdiction of a High Court is not limited to the protection of the Fundamental Rights but also of the other legal rights as is clear from the words “any other purpose”. The concurrent jurisdiction conferred on High Courts under Article 226 does not imply that a person who alleges the violation of the Fundamental Rights that must first approach the High Court, and he can approach the Supreme Court directly. This was held in the very first case Ramesh Thapper vs. State of Madras. But in P.N. Kumar vs. Municipal Corporation of Delhi111 the Supreme Court expressed the view that a citizen should first go to the High Court and if not satisfied, he should approach to the Supreme Court. Innumerable instances of the Human Rights violation were brought before the Supreme Court as well as the High Courts. Supreme Court as the Apex Court devised the new tools and innovative methods to give effective redressal. The traditional rule is that the rights to move the Supreme Court is only available to those whose Fundamental Rights are infringed. People who are not interested in the subject matter of the order have no Locus Standi to invoke the jurisdiction of the court. But the Supreme Court has now considerably liberalized the above rule of Locus Standi. The court now permits the “public spirited persons to file a writ petition for the enforcement of Constitutional and statutory rights of any other person or a class, if that the person or a class is unable to invoke the jurisdiction of the High Court due to poverty or any social and economic disability. The 111

1988 SCR (1) 732, 1987 SCC (4) 609

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widening of the traditional rule of Locus Standi and the invention of Public Interest Litigation (PIL) by the Supreme Court was a significant phase in the enforcement of the Human Rights. In S.P. Gupta vs. Union of India and others, the seven member bench of the Supreme Court held that any member of the public having “sufficient interest” can approach the court for enforcing the Constitutional or the legal rights of those, who cannot go to the court because of their poverty or other disabilities. A person need not come to the court personally or through a lawyer. He can simply write a letter directly to the court complaining his sufferings. Speaking for the majority Bhagwathi, J. said that any member of the public can approach the court for redressal where, a specific legal injury has been caused to a determinate class or group of persons when such a class or person are unable to come to the court because of poverty, disability or a socially or economically disadvantageous position. In the instant case, the court upheld the right of lawyers to be heard on matters affecting the judiciary. By this judgments the Public Interest Litigation (PIL) have become potent weapons for the enforcement of “public duties” where executed inaction or misdeed resulted in public inquiry. While expanding the scope of the “Locus Standi”, Bhagwathi, J. expressed a note of caution and observed “but we must be careful to see that the member of the public, who approaches the court in case of this kind, is acting bonafide and not for the personal gain or private profit or the political motivation or the other consideration. The court must not allow its process to be abused by politicians and other”. Hence the court was aware that this liberal rule of the Locus Standi might be misused by vested interests. As a result of this broad view of Locus Standi permitting Public Interest Litigation or the Social Action Litigation, the Supreme Court of India has considerably has widened the scope of Article 32 of the

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Constitution. The Supreme Court has the jurisdiction to give an appropriate remedy to the aggrieved persons in various situations. Protection of pavement and slum dwellers of Bombay, improvement of conditions in jails, payment of Minimum Wages, protection against Atrocities on Women, Bihar blinding case, Flesh trade in protective home of Agra, Abolition of Bonded Labourers, Protection of Environment and Ecology are the instances where the court has issued the appropriate writs, orders and direction on the basis of Public Interest Litigation. The advent of Public Interest Litigation (here in after referred to as PIL) is one of the key components of the approach of “Judicial Activism” that is attributed to the higher judiciary in India. The verdict of Bhagwati, J. in M.C.Mehta vs. Union of India, opened the doors of the Apex Court of India for the oppressed, the exploited and the down – trodden in the villages of India or in urban slums. The poor in India can seek enforcement of their Fundamental Rights from the Supreme Court by writing a letter to any judge of the courts even without the support of an Affidavit. The court has brought legal aid to the door steps of millions of Indians which the executive has not been able to do despite that, an amount of money is being spent on new legal aid schemes operating at the central and state level. The Supreme Court of India has used the strategy of Public Interest Litigations as an aid to enforce the rights of prisoners, workers, pensioners, victims of environmental pollution and others. The Public Interest Litigation plays an important role in ensuring the Principle of Rule of Law by making the administration is accountable to the people. The Supreme Court of India in Narmada Bachao Andolan vs. Union of India held that Public Interest Litigation was an invention essentially to safeguard and protect the Human Rights of those people who were unable to protect themselves.

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Public Interest Litigation (PIL) is a weapon which has to be used with care and caution. The judiciary has to be extremely careful to see that whether it contains public interest or private vested interest. The courts are now imposing moderate to heavy costs in cases of misuse of Public Interest Litigation which should be an eye opener for non–serious Public Interest Litigation mover. The Reformation, as the objective of punishment: Krishna Iyer, J. was the person who advocated strongly for orienting reformative treatments of prisoners in the prison. In all his judgments he tried to incorporate the reformative values into the prison administration. The concept of the crime was also redefined by the judges at his time. It was observed that: “Crime is a pathological aberration that the criminal can ordinarily be redeemed that the state has to rehabilitates rather than avenge. The subculture that leads to the anti-social behavior has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is individual and the goal is salvaging him for the society. The infliction of the harsh and the savage punishment is thus a relic of past and regressive times”. The above judgment conveys that the right influence of the international human rights doctrine over the Indian judiciary. The Court in the Giasuddin emphasized that, on the Gandhian approach of treating offenders as patients and therapeutic role of punishment. The Supreme Court after the considerations of all the circumstances of the appellant directed that the sentence should be reduced to 18 months. The court also directed, guarded parole release every 3 months for at least a week punctuating the total prison terms and the assignments of the suitable mental cum-manual work and payment of wages in jail. The appellant had been ordered to pay fine of Rs. 1200/- to be made over the victim of deception under Section 357 of the Cr.P.C. Krishna Iyer, J. delivering the 316

judgments have also pointed out that the judge must use wide range of powers in reformatting the criminal before him. Thus the concept of the reformation was planted even out of the four walls of prison by this judgment. Free from torture and cruel treatment: Supreme Court in many instances made it clear that the prison treatments in the prison should not be caused any kind of torturous effect over the inmates. Even the practice of the separate confinement and the solitary confinement was deeply discouraged by courts at many instances. The court clearly has pointed out that the prison authorities cannot make prisoners to solitary confinement and hard labor. As to ensure the prison practices the Supreme Court in this judgment also directed the district magistrates and the sessions’ judges to visit the prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances. They were to make the expeditious enquiries and take a suitable remedial action. Thus the concepts of the judicial policing were recognized by the Supreme Court through this judgment. Discussing the same premise the court vehemently criticized that the practice of using bar fetters unwarrantedly. The court held the treatment of a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of the beasts, would certainly be arbitrary and questionable under Article 14. Thus putting bar fetters for a usually long period, day and night, and that too when the prisoner is confined in secure cells from where escape is somewhat inconceivable without any due regard for the safety of the prisoner and the security of the prison is not justified. Judicial interferences of this kind have coined many rights for the prisoners what would not be unless ever possible. It will be nice to quote Krishna Iyer, J. at this occasion. He remarked:

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“Society must strongly condemn crime through punishment, but brutal deterrence is fiendish folly and is a kind of crime by punishment. It frightens, never refines; it wounds never heals”. The message of reformation through the prison treatment has to be there in every measures adopted by the authorities in the prisons. The human right to be safe in the prisons as mandated by the international human rights law is being incorporated into Indian law by judicial initiatives. International law gives the widest possible protections to the prisoners in the prison from the tortures and that kind of a protection can only be accommodated by legislature. Maladministration in prison: Every prisoner has the right to enjoy all the rights entrusted to a normal human being subjected to reasonable restrictions by the international human rights law. The prison authorities are bound to look after the management of prisons with this outlook. So it can be powerfully argued that any lapses in the management of prison will also cause infraction over the human rights of prisoners. The view of Indian judiciary also accompanies this view to a greater extent. Talking about the mismanagement in prison, apart from the official lapses the maintenance of discipline between the prisoners will also be of high concern. The Indian prison experiences even made the Supreme Court to ask whether the prison term in Tihar jail is a post graduate course in crime. Serious allegations were made against the unhealthy relations between jail authorities and criminals and thereby causing certain kind of misappropriations of jail funds. The same have been going on in the present days and only few years back, the Supreme Court ordered to launch a prosecution against certain Superintendents and other jail officials for offences punishable under Ss. 120B, 217 & 218 of the Indian Penal Code. Concluding the judgment in Asha Arun Gawali, court shockingly observed that:

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“…norms relating to entry of persons to the jail, maintenance of proper records of persons who entered the jail have been observed more in breach than in observance and the rules and regulations have been found thrown to the winds … What is still more shocking is that the persons have entered the jail, met the inmates and hatched conspiracies for committing murder. The High Court appears to have justifiably felt aghast at such acts of omissions and commissions of jail officials which per –s e constituted offences punishable under various provisions of the IPC and has therefore, necessarily directed the launching of the criminal prosecution against them, besides mulcting them with exemplary costs”. The message of reformation is indefensibly spoiled at the consent and convenience of jail authorities and the same went against the basic aspirations of human rights law. The court in many instances stressed on the need to provide proper atmosphere, leadership, environment situations and circumstances for re-generation and a reformatory approach. Illegal accomplice between criminals and prison officials make all these aims in vein. Freedom of speech and expression: Prisoners, alike others, can access many human rights made in Universal Declaration of Human Rights and international covenants. Indian judiciary had also recognized that the right of the prisoners to enjoy the right to freedom of speech and expression. It is much interesting to note that the judiciary took such a view before the Kesavanada Bharathi judgment came and evolution of the concept of justice as fairness. Alongside with this, it is worthwhile in discussing about the judicial declarations of the right of press to interview prisoners. This judgment has certain implications over the right of the prisoners in exercising their right to the freedom of speech and expression.

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A Writ Petition filed under the Article 32 by the Chief reporter of the newspaper Hindustan Times Smt. Prabha Dutt seeking a writ of mandamus or order directing the respondents Delhi Administration and Superintendent, Tihar jail to allow her to interview the two convicts Billa and Ranga who were under a sentence of death, whose commutation petition to the President were rejected. The Court held the restricted rights to interview the prisoners subject to their willingness to attend the same. The freedom of the press person to interview an under trial prisoner will not be alike that of the prisoner sentenced to death. Supreme Court remarked that the right to interview a prisoner will not become an exclusive right as in the case of the life convicts and it should be decided on merits depending on each case.

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Chapter - 6 REFORMATIVE APPROACH TOWARDS PRISON SYSTEM

CHAPTER 6

REFORMATIVE APPROACH TOWARDS PRISON SYSTEM 6.1

INTRODUCTION “Prisons are built with stones of law and so it behoves the court to

insist that, in the eye of law, prisoners are persons. not animals, and punish the deviant guardians of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials dressed ill a little, brief authority, when Part III is invoked by a convict. For when a prisoner is traumatized, the Constitution suffers a shock, And when the Court takes cognizance of such violence and violation, it does, like the Hound of Heaven, but with unhurrying chase, and unperturbed pace, deliberate speed, and majestic instancy follow the official offender and frown down the outlaw adventure” The above quoted piece from the lucid judgment penned by the great judge of the Supreme Court of India and a champion jurist of human rights Mr Justice V R Krishna lyer, in the case of Sunil Batra v. Delhi administration,1 which is the guiding torch for all those who officially deal with the prisoners. Since Independence, prison administration in the country has been a matter of intense debate and criticism at various public forums. In the recent times, the Supreme Court of India has come down heavily on the sub-human conditions obtaining in prisons. In many States, the problems of dilapidated prison structure, overcrowding and congestion, 1

AIR I98OSC 1579.

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increasing proportion of the under trial prisoners, inadequacy of the prison staffs, lack of proper care and treatment of prisoners, etc., have been engaging the attention of the press and social activists. With a growing of advocacy for the protection of the human rights in the various walks of lives, the plight of prisoners has emerged as a critical issue of public policy. Prisons have started getting much attention since past 15-20 years. Now, India is preparing to sponsor the phase of prison modernization scheme. It aims at the construction of more prisons, staff quarters and the renovations of old buildings. Under the new phase, usage of technology in Prison Management is added. A lot of the changes have been witnessed in the management of prisons regarding issues of security, custody, inmates and staff of prisons. Prisons, as institutions, are barely considered when it comes to State budgets. Though the budgets are fixed and allocated, but they never suffice and the money sometimes never reaches the proper hands. As a result, prisons find themselves starved of adequate funding. This systematically constructed the isolations of our prisons deflects the gaze of civil society institutions, which includes the Media. Due to this, all the steps taken for the proper management of the prisons become unfruitful. The concept of prison system can be observed from two paradigms, naively as the mode of punishment and as the mode for punishment and the two are mutually exclusive. The subject of ‘prison reforms’ is the domain of the first paradigm, where one views imprisonment as punishment and not for punishment in the sense that curtailment of liberty in itself is recognized as a legally sanctified punishment and any further infliction in the form of deliberate or callous deprivation of humane conditions in jail is an unconstitutional aggression on the prisoner. Prisoners are peculiarly doubly handicapped. For one thing, most prisoners belong to the weaker segment, in poverty, literacy, social station

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and the like. Secondly, the prison house is a walled-off world which is incommunicado for the human world, with the result that the bonded inmates are invisible, their voices inaudible, theft injustices unheeded. So it is imperative, as implicit in Article 21 of the Constitution of India that life or liberty shall not be kept in suspended animation or congealed into animal existence.2 In

India

a

number

of

committees,

commissions,

jurists,

criminologists, authors and even judicial pronouncements extended vast range of recommendations and suggestions towards reforms in prison system, but they were not of much conspicuous avail.Condition of prisoners in India remained miserable for long which treated imprisonment as punishment and not for punishment. During the period 1979-80 India witnessed various widespread agitations by the prison staff as well as prison inmates demanding improved service conditions and improved living conditions in jails the agitations also turned violent in some states and union territories, So, the Government of India, taking stock of the situation set up through the Ministry of Home Affairs, the All India Committee on Jail Reforms on 25 July 1980 under the chairmanship of Mr Justice Anand Narain Mulla. With its terms of reference spread across nine clauses ranging from review of laws governing the prison managements, to recruitment policies, to living conditions in jails, to systems of open air prisons, remissions and specialized treatments for women, juveniles and sick, the Committee was specifically asked to look into the affairs of Tihar Jail. Three years of extensive research by the Mulla Committee culminated into a two volume historical document in the form of report in the year 1983.

2

Sunil Batra (II) v, Delhi Administration, (1980) 3 SCC 488.

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Later, under the judicial directions of the Supreme Court of India in the case of Ramamurthy v. State of Karnataka,3 the work of looking into status of implementation of the recommendations of Justice Mulla Committee was assigned by the Ministry of Home Affairs to the Correctional Administration Division (that had been created in the year 1995 in the Bureau of Police Research and Development, Ministry of Home Affairs), which started its work in the month of June, 2001 and came out with its report in the year 2003. The 2003 report read the recommendations of the 1983 Mulla Committee report into two categories, namely, the goal oriented recommendations and the actionable recommendations; the latter was further sub-divided into the recommendations for the Government of India and the recommendations for the states and the union territories. Relating to the actionable recommendations, a detailed questionnaire was prepared and sent to all the states and the union territories, who responded to the same and on the basis of computerized tabulation, recommendation wise report was prepared by the Correctional Administration Division. This report is a classic exhibit of the non serious manner in which such scholarly researched prison reform recommendations have been dealt with. The Model Prison Manual compiled by the Bureau of Police Research & Development, is a perfect document to look into proper maintenance and management of prisons and it is necessary for the States to observe with the guidelines given in it in every possible way.Moreover, the Draft of National Policy on Prisons formulated by the All India Committee on Jail Reforms of 1980-1983 lays certain express guidelines that State shall endeavor to bring about the basic uniformity in the minimum standards of the management of the prisons and the treatment of offenders in the country. It further suggests incorporation of the principles of management of prisons and treatment of offenders in the Directive 3

AIR 1997 SC 1739.

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Principles of State Policy embodied in Part IV of the Constitution of India and also lays the emphasis on the inclusion of subject of prison and allied institutions in the Concurrent List of Seventh Schedule to the Constitution of India. The Judiciary should also play an active role and it should keep an eye on the working of prisons. It is the directive of the Supreme Court that there should be nomination of Lawyers by the Judiciary to visit prisons as part of the visitorial and supervisory judicial role. Periodical visits by District Magistrates and Sessions Judge should also be made. Management and the maintenance of prisons need to be given more emphasis in the affairs of the country. Prison should be made as much a public institution as a university or hospital and there is a need to remove its isolation and must integrate it functionally and physically into the society for, only then, the Prison Manual so prepared will become useful. 6.2

LEGISLATIVE AND CONSTITUTIONAL STEPS Prison is a state subject according to item number 4 in the State List

(List-II) of the seventh schedule to the Constitution of India. According to Article 246(3) of the Constitution of India, the legislature of any state has the exclusive power to make Jaws for such state or any part thereof with respect to any of the matters enumerated in the List II in the seventh schedule. However, Article 252 of the Constitution provides that two or more states may by resolution in their respective state legislatures authorize Parliament, to enact a central legislation on a state subject. The Union of India can thus consider enactment of law relating to prisons’, only on receipt of requests from two or more states. As noted in the above described 2003 report of the Correctional Administration Division, Bureau of Police Research and Development, Ministry of Home Affairs, the Central Government in the Ministry of Home Affairs requested the State Governments to pass resolutions under Article 252 of the Constitution for enactment of a new Prisons Act to replace the 325

existing Prisons Act, 1894, but did not receive the requisite response from the State Governments. This placement of the subject of prison system in the State List of the seventh schedule to the Constitution is the root cause of immense disparity, in the manner different prisons in the country are governed differently, owing to differences in different socio-economic conditions of each state. Recommendations of Justice Mulla Committee to formulate directive on National Policy on Prisons and to embody the same in part IV of the Constitution and also for inclusion of the subject of prisons and allied institutions in the Concurrent List of the seventh schedule of the Constitution of India were not accepted by the Government. In order to bring about uniformity in the state approach to the philosophy underlying and practical modalities in administration of prison system across the country, the constitutional amendments on the above lines are definitely the need of the hour. One interesting revelation by the Tihar Jail authorities is that influx of petty offenders, belonging to lower financial strata of society increases substantially with the onset of winters. For, the destitute and homeless compelled by the need for shelter and warmth of necessary clothes and bedding, commit petty offences and after getting arrested, do not seek bail so that at least during the peak winters, they could get protective shelter from winter chills. This revelation, on the face of it, sounds of the authorities’ scant regard for the individual liberty, in the sense that why would someone barter his liberty just to get a roof over his head temporarily, with one or two blankets. But a deeper look also makes it sound not unbelievable, looking into the state of living standards for the destitute and homeless, even in Delhi, the capital of our country. With this backdrop, it is suggested that the maintenance of jails and prison establishment being an expensive burden on the public exchequer, the offenders should be confined to prison for only a minimum period which is 326

absolutely necessary for their custody. Such an approach is from the angle of not just reducing the financial burden on the system but also a reasonable solution to overcrowding in jails. Towards reform of prison through active inspection by judiciary At the level of subordinate judiciary, the interaction with prisoner is mainly by the Magistrates as: trial judges and by the Additional Sessions Judges as trial judges and as jail inspecting judges. Role of trial judges at both levels is no doubt significant but the role of the jail inspecting judges is of utmost importance. For, it is the jail inspecting judges who are entrusted with the solemn duty to ensure protection of human rights of prisoners and adherence to the legal tenets laid down in various judicial pronouncements qua the prison system. The judges, especially the jail inspecting judges should not be oblivious to the strict positivist approach to law that the prisoner is liable to only that punishment, which is legally sanctified. Hatred towards the prisoner, being the domain of morality should find no place in the work of judges. Legally sanctified punishment in case of imprisonment is only in the form of curtailment of liberty of the prisoner. In case of undertrial, the imprisonment is not even in the form of punishment strict sense, the limited purpose of undertrial detention is to ensure availability of the accused to face trial. Any infliction inside the prison over and above curtailment of liberty is nothing hut an unconstitutional slate aggression against the undertrial or convicted prisoner. In view of this underlying philosophy, the judges dealing in any capacity whatsoever with the prisoners must be extremely sensitive. For, they are dealing with a person hated and discarded by the society for his wrongs (and at times, even for his no wrong) and such a person has nobody to hear his cry for protection against an unconstitutional aggression against him. Judges cannot hate a criminal, for; hate is the prerogative of the domain of morality.

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Reference of the Delhi Prisons (Visitors of Prisons) Rules. 1988 The Delhi Prisons (Visitors of Prisons) Rules. 1988, (hereinafter referred to as ʻthe Rulesʼ) framed by the Administrator of the Union Territory of Delhi in the exercise of powers conferred by clause (25) of section 59 of the Prisons Act 1984, stipulates a panel of various persons, authori2ed and also duly bound to visit the jails in Delhi, with specific objects aimed at protecting the abrogation of the rights of prisoners. Rule 2(1) contemplates two sets of visitors, viz ex-officio and official or non official visitors. Rule 2(2) enlists the ex-offlcio visitors of every jail within the areas under their

respective charge or jurisdiction, namely

Secretary(Home) Delhi Administration; Commissioner of Police; District and Sessions Judges; District Magistrates; and Director, Social Welfare Department, Delhi Administration, Rule 3 contemplates that Commissioner of Police and Sessions Judges are required to visit the jails once in three months and once a month respectively, while District Magistrates are required to visit the jails once fortnight In Delhi owing to topography of jails and work exigencies, this duty to visit jails is delegated by the Sessions Judge to some of the Additional Sessions Judges, who visit every alternate month the jail assigned to them, Like all jail visitors, every jail inspecting Additional Sessions Judge (hereinafter referred to as ‘the Inspecting Judge’) has enjoined duty to satisfy himself that the provisions of the Prisons Act, 1894, and all rules, regulations, orders mid directions made thereunder are duly observed. For the said purpose, vide Rule 4 of the Rules the inspecting judges, like every official visitor are authorized to examine all or any of the hooks, papers and records of any department of the jail and to interview any prisoner and hear his complaints or representations. Detailed report of each jail inspection is submitted by the inspecting judge through the Sessions Judge to the Delhi High Court, from where affirmative appropriate directions are issued to the all authorities. 328

Rule 13 of the Rules elaborately enlists the duties of the jail visitors to inspect the barracks, cells, wards, work shed and other buildings of the jail generally and the cooked food, to ascertain whether considerations of health, cleanliness and security are attended to, whether proper management aid discipline are maintained in every respect, and whether any prisoner is illegally detained, to examine jail registers and records, to hear and attend to all representations and petitions made by or on behalf of prisoners and direct, if deemed advisable, that any such representation or petition be forwarded to the government. In this regard, Rule 16(2) also contemplates that the visitor is authorized to direct the escort to withdraw from earshot of the prisoner, so as to permit private communication between the visitor and the prisoner. In order to ensure that during the intervening period of about two months between the two consecutive jail visits of the inspecting judge, the prisoner is not rendered unprotected, Delhi has the system of the prisoners writing their complaints or representations to the inspecting judge. Such complaints can be submitted by the prisoner either personally on the date fixed for his trial or appearance in the trial court or through some fellow prisoner, who is scheduled to appear in the court. Where the complainant prisoner or his fellow prisoner have to appear before the court other than the court of his jail inspecting judge, he makes a request to be produced before the inspecting judge and the same is allowed by the trial court. There is no fixed time prescribed for such appearances of the prisoners before the inspecting judge; many a times much after the court sitting hours and at times even when the inspecting judge has already boarded his car to return home in the late evening, the prisoner is produced and the inspecting judge is duty bound to hear his grievance and take appropriate action. Another role assigned to the jail inspecting judge is approval or disapproval of the punishments proposed to be imposed on the prisoners by

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the jail authorities for various acts of indiscipline and misconduct inside the jail. The jail superintendent, having found a prisoner guilty of some act of indiscipline or misconduct inside the jail, proposes to impose a punishment on the delinquent prisoner and sends the proposal to the Sessions Judge, who in turn, refers the punishment proposal to the concerned inspecting judge. The said proposal is in the form of a punishment slip, describing the misconduct in a few sentences. The punishments are mainly in the form of stoppage of one or more meetings with the delinquent prisoner’s visitors/family and forfeiture of the offending material like currency and canteen coupons etc. Mostly the proposed punishment is stoppage of family meetings of the prisoner for a few days or weeks. This has deleterious effect on reformation of the prisoner. The motive of jail officials in playing such mischief as described above or proposing excessive punishments ranges from deep rooted biases and hatred against the criminals to means of extortion of money or favours from the prisoner or his family. Here, role of an inspecting judge becomes very crucial in upholding the constitutional values. Supervision of Legal and Medical Aid Lack of free and competent legal aid in jails is another malady that abrogates the fundamental rights of the prisoners and it is a part of the duties of the inspecting judge to ensure appropriate remedy. Inspecting judge must interact personally with the prisoners to ascertain if the free legal aid counsel appointed by the authorities is regularly visiting the jail or not and whether the free legal aid counsel is demanding any money from the inmates in the name of any photocopying, translation, tiling expenses etc. and if so, the inspecting judge must convey the same to the concerned legal aid authority, recommending prompt action. The inspecting judge must also ascertain as to whether the appeals or bail applications etc. are 330

being timely and promptly filed by the free legal aid counsel or not and in case required, must recommend action. Medical aid for the prisoners is most commonly found to be lacking in jails. During the jail inspections and even otherwise, the jail inspecting judge gets many applications of prisoners complaining lack of appropriate medical treatment. Most of the jails have an in-house jail dispensary, managed by one or two doctors, but the same are not sufficiently equipped to deal with any major ailment. Many a times, the doctors posted in such dispensaries are so posted against their will and with no specialized counseling as regards dealing with prisoners. Prisoners, owing to their circumstances, have a peculiar thought process that needs to be understood with compassion and patience, at least by the doctors. But it has been often found that the jail doctors nurture harsh biases against the prisoners and believe that the prisoners do not deserve any sympathetic treatment and must suffer as they also made someone suffer by their crime. This is systemic problem, where the doctor is posted in jail, without being counseled about the manner in which a prisoner must be dealt with, keeping in mind the reformative approach. For the doctor, a patient must be a patient only and not criminal, as to punish him is not the job of the doctor. Another important issue, which a jail inspecting judge must look into is impartial and equitable distribution of wage related work for the prison inmates. Often there are complaints that the jail authorities allocate wage paying work only to few of the selected prisoners and demand bribes or commissions from wages also. There are also instances where jail officials demand bribe in order to get transferred the wages earned by a prisoner in the previous jail to his present jail, where he was shifted after transfer. Jail inspecting judge must take serious note of such complaints, in order to protect the fundamental rights of such prisoners.

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6.3

TECHNIQUES OF PRISON REFORMS The institution of prison is meant to serve the dual purpose of

keeping away criminals from society and reformation followed by rehabilitation of the criminals. This objective is achieved under an institutional treatment whereby the system scientifically eliminates the conditions, which are found responsible for converting an individual into a criminal. Present day penal philosophy incorporates the prisoners’ after-care service also as an integral part, which correctional service presupposes active help and guidance to the discharged prisoners through counseling and surveillance. The process is titled ‘Released Person’s Convalescence’ The desired goal of reformation and/or rehabilitation of criminals is achieved through various tools and techniques in the institution of jail. Some such tools and techniques are discussed following 6.3.1 Probation The word ‘probation’ arose from the latin word probatio, which means ‘to test’ and the concept has historical roots in the practice of judicial reprieve. In English common law, prior to the advent of democratic rule, the courts were empowered to temporarily suspend the execution of a sentence and allow a convict to submit appeal to the monarch seeking pardon. The concept of probation, in its initial form first developed in the US when John Augustus, a Boston cobbler, persuaded a judge in the Boston police court in the year 1841 to give him the custody of a convicted alcoholic offender for a short period and then helped the man to appear rehabilitated by the time of sentencing. Probation, a very significant tool of reformatory penology, is basically a period during which the convict ordered to undergo sentence, remains, instead of being in prison, under supervision. It is a treatment device, developed as a non- custodial alternative which is used by the

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criminal courts after guilt of an accused is established and the court considers that imposing a prison sentence would do no good, since imprisonment damages scope for the convict to readjust in the normal society after the release and his association with professional criminals in jail often has undesired effects. A convict on probation has to follow certain conditions set forth by the court, often under the supervision of a probation officer. During this period, the convict faces the threat of being sent back to prison, if found breaking the rules or misusing liberty. Thence, the release of the convict on probation serves as a reformative treatment plan prescribed by the convicting court, and in the course of this treatment, the convict on probation lives within his community and modulates his own life under conditions imposed by the court, and remains under the supervision of a probation officer. Such a suspension of sentence during probation serves the dual purpose of deterrence for the convict (by acting as a threat of his being subjected to unexhausted sentence) and of reformation (by providing necessary help and guidance to the probationer in his rehabilitation). The United Nations has recommended the adoption and extension of the probation system by all countries as a major instrument of policy in the fie]d of prevention of crime and the treatment of the offenders. The tool of probation is employed in many countries while dealing with the problem of reformation efforts with characters peculiar to suit the system concerned. In almost all systems, the convict under probation is required to refrain from being in possession of firearms, and may be ordered to remain employed, live at a directed place, obey the orders of the probation officer, and not leave the prescribed limits of territorial jurisdiction. The convict under probation is also prohibited from contacting the victims as well as the potential victims of similar crimes or known criminals, particularly coconvicts. Additionally, the restrictions can include a ban on possession or

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use of alcoholic beverages, even if alcohol was not involved in the original criminal charges. In some systems, the convict under probation is also compulsorily made to wear an electronic tag or GPS anklet, which signals his whereabouts to the probation officer. Intensive probation, home detention, GPS monitoring and Computer Management etc are highly intrusive forms of probation in which the convict is very closely monitored, and it is common for violent criminals, high ranking gang members, habitual offenders, and sex offenders. Some systems even require the convict under probation to waive off their constitutional rights regarding search and seizure, and such probationers may be subject to unannounced home or workplace visits, surveillance, and the use of electronic monitoring or satellite tracking. GPS monitoring and home detention, are commonly used in juvenile cases, even if the underlying delinquency is minor. Computer management at a minimum involves installing monitoring software and/or conducting computer searches in order to ascertain the online activities of the convict under probation. Generally, under standard supervision during probation, the convict is required to report to an officer, mostly bi-weekly or quarterly, and is subject to any other conditions as may have been ordered, such as alcohol/drug addiction treatment, and community service etc. Then, there is unsupervised probation, which does not involve direct supervision by a probation officer and the convict is allowed to go to his workplace, educational institution, or place of worship etc. with the requirement to meet with a probation officer at the onset or-near the end of the probationary period, or at times even not at all. Probation, thence serves as an important tool of reformation of a convict, as it keeps the convict away from the criminal world and fear of punishment in case of violation of probation law has a psychological deterrent effect on the convict. Thus, probation indirectly prevents a criminal from adopting a vengeful attitude

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towards the society at large and complainant in particular. The release of the convict on probation also saves him from stigma of imprisonment and thus prepares him for rehabilitation. Supervision of the convicts released on probation must be made mandatory in all cases. Scope of powers as well as duties of the probation officer also need to be widened in the sense that if satisfied, the probation officer may recommend the discharge of the convict undergoing probation and it be left to the judgment of the probation officer to decide about necessity to vary an order of probation. At the same time, there must also be some complaint redressal mechanism to deal with the instances of not just malpractices, but even inaction amongst the probation officers. The provisions under the Probation of Offenders Act, 1958, and the Criminal Procedure Code, 1973, need to be amended and brought in tune with the Juvenile Justice (Care and Protection of Children) Act, 2000, which stipulates more detailed procedures pertaining to the agencies dealing with the juveniles. One major area which direly needs improvement is the efficiency of those manning the institution of probation. Presently, the task of the probation officers is not given much importance in India and their role in the system is considered to be a mere formality. However, if utilized properly, they could be most effective. At the entry level itself, it needs to be systematically worked upon. Those seeking to enter the system as probation officer must be equipped with at least the basic degree in disciplines like criminology, social work or psychology etc. At the same time, the quality of probation work can be improved by making the service conditions of the probation staff more lucrative, which will attract well qualified and competent persons to the occupation. A nationwide uniform scheme of training for probation personnel with emphasis on social work and rehabilitative techniques would serve a useful purpose to improve the

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efficacy of probation service in India. Probation officers must be provided an intense on-the- job training aimed at inculcating in them a missionary zeal for the welfare of the criminals being dealt with by them. We need to work on even the subjects of the system, the convicts undergoing probation. There needs to be made an increased investment on correctional services, especially for the poor, illiterate and unskilled convicts undergoing probation. That would be more productive not only in reducing crime but also in improving the quality of life among the strata they come from and are ultimately to return to. There must be financial support mechanism for such convicts, so that they can engage in small scale income generating activities. 6.3.2 Parole Originating from French, the word parole means voice’ or ‘spoken words’; gradually the term parole became associated during the Middle Ages with the release of prisoners who gave their word to return and undertake the remaining part of sentence. Historically, parole is a concept known to military law, where it denoted release of a prisoner of war on promise to return. Parole in the present day criminal justice system connotes the provisional release of a prisoner who agrees to certain conditions prior to the completion of the maximum sentence period. The life in a prison is so rigid and restrictive that it hardly offers any opportunity for the offender to rehabilitate himself. It is, therefore, necessary that in suitable cases the prisoner be released under proper supervision from the prison institution after serving a part of sentence imposed upon him, as a matter of efforts to rehabilitate him in the society. This object is accomplished by the system of parole which aims at restoring the prisoner to society as a normal law abiding citizen. Parole, in other words, is the release from a penal or reformative institution, of a criminal who remains under the control of correctional authorities in an attempt to find out 336

whether he is fit to live in the free society without supervision. It is thus the last stage in the correctional scheme, of which probation may probably be the first. Donald Taft, characterizes parole as a release method which retains some control over the prisoner, yet permits him more normal social relationships in the community and provides constructive aid at the time he most needs it4 According to Taft, parole is a release from prison after part of the sentence has been served, the prisoner still remaining in custody and under stated conditions until discharge and liable to return to the institution for violation of any of those conditions. Dr Sutherland describes parole as the liberation of an inmate from prison or a correctional institution on condition that his original penalty shall revive if those conditions of liberation are violated. The ultimate significance of parole is that while retaining effective control over him, it enables the prisoner a free life. Under the scheme, every prisoner is carefully studied and the one who shows potential for correction and responds favourably to the disciplined life inside the prison, is allowed considerable liberty and finally released to join the society conditionally. Thus, parole is essentially an individualized method of treatment of offenders and envisages a final stage of adjustment of the incarcerated prisoner to the community. The conditional release from prison under parole may begin anytime after the inmate has completed at least one third of the total term of his sentence but before his final discharge. The object is to adjudge the adjustability of responsive prisoner to the normal society by offering him suitable opportunity to associate himself with outside world. Parole is taken as an act of rehabilitation curriculum and not as a matter of prisoners right, the prisoner may be released on parole on the condition that he abides by the promise. It is a provisional release from 4

Taft and England, Criminology, Macimillian, 4th Edition. 1964, p 485.

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confinement but is deemed to be a part of the imprisonment. Release on parole is a part of the reformative process and is expected to provide opportunity for the prisoner to transform himself into useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not in any way, change the status of the prisoner. Parole does not mean suspension of sentence. The period of parole is counted towards the total sentence of a prisoner. In India, seeds for prison reforms were mainly sowed by the political prisoners, who repeatedly launched protests with the prison authorities and made all possible efforts to see that the rigours of prison life were mitigated and prisoners were humanly treated. Besides, the reformative global trend in penology, which was gaining momentum, also stimulated the cause of correctional methods of treatment of offenders in India. It was realised that confining the convicts in closed prison cells hardly serves any useful purpose. 6.3.2.1 Parole system dealt under the Delhi Parole/Furlough Guidelines, 2010 In Delhi, the issue of parole is dealt under the Delhi Parole/Furlough Guidelines, 2010, notified on 17 February 2010. The Guidelines intend to regulate the applications for parole and to ensure that the same are considered in a fair and transparent manner. As per Guidelines, the objectives of parole could be amongst others, to enhance continuity with family members; to maintain a minimum level of self-worth and confidence; to develop a positive attitude and interest in life; to combat inner stress; and to protect social ties. The Guidelines contemplate to two kinds of parole, namely, custody parole and regular parole. The custody parole is to be granted in emergent circumstances like marriage of a family member or serious illness/death of

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family member or any other emergent situation, gravity where of is to be verified by the superintendent of the jail from the concerned police station upon receipt of the parole application. Custody parole which has to be granted by way of an order in writing by the superintendent of jail is for a period not more than six hours excluding the time taken to reach the destination and return to the jail. In custody parole, the prisoner is escorted to the place of visit and return there from in safe custody and during the period of custody parole, the prisoner is deemed to be in Application for regular parole is considered by the Government on other grounds such as serious illness of a family member, critical conditions in the family on account of accident or death of a family member, marriage of a family member, delivery of child by the wife of the convict if there is no other family member to take care of the spouse at home, serious damage to life or property of the family of the convict and to maintain social ties etc. It must be stressed here that reformation of the parolee through surveillance and assistance is the foremost object of parole. But neither of the two to the exclusion of the other can make the system effective. Parole, as a tool to be effective, must, therefore, inevitably include a combination of both – surveillance and assistance, for its successful implementation. Excessive supervision over parolees without proper guidance would virtually mean that the parole authorities are performing the police functions of keeping a close watch on the prisoner with an assumption that he would definitely repeat the crime if not kept under surveillance. Conversely, assistance to parolees without proper supervision will also yield poor results. It is erroneous to think that parolees can reform themselves merely by affording them ‘easy freedom’. It is a part of parole authorities’ duty to ensure that the parolee makes the best use of the opportunities placed before him after his release from prison. While handling parolees, priority should be on the protection of society against

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crimes rather than undue leniency towards the parolees. The essential requisites of an ideal parole system may briefly be summarized thus: 1. Before release on parole, the parolee must be thoroughly prepared for parole administration by the authorities. 2. The parolee must be assured an honourable employment and favourable surroundings at the time of his release on parole, which will inculcate hope, confidence and a sense of social responsibility in him and would also help him in overcoming his guilt complex arising out of his conviction. 3. Emphasis must be on supervision as well as guidance and assistance to except parolee so as to make the system useful to the society in general and the parolee in the in particular. 4. Since the parolee has to be rehabilitated within the society through various parole social agencies, it is desirable that the parole authorities should seek active co as per operation of the public in this task. Parole authorities should he completely free from political pressures and le order, only persons of proven ability and integrity should be inducted in these ons such authorities. Well qualified and trained personnel should be recruited for this job. At this stage, it would also be appropriate to take a glance into the judicial approach to the concept of parole in India. A Constitution Bench of the Supreme Court of India in the case of Sunil Fulchand Shah v. Union of India,5 observed thus: “The detenu is not a free man while out on parole. Even while on parole he continues to serve the sentence or undergo the period of detention 5

2000 SCC (Crl) 659.

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in a manner different than from being in custody, Parole does not keep the period of detention in a stale of suspended animation” Repeatedly, the Supreme Court of India has held that the purpose of parole is three-fold: firstly. the use of parole as a motivational force for reforming the prisoners; secondly, to keep the family tics intact as the family ties are likely to be broken because of the long periods of incarcerations; and thirdly, to slowly draw the misled soul back into the folds of the society. Since punishment should be more reformative and less retributive, the role of parole as a reformative measure has to be acknowledged. 6.3.3 Furlough Furlough is another reformatory tool that is often confused with parole. Undoubtedly, parole and furlough are reformative tools of the penal system, but the two are different. Furlough is a matter of right while parole is not, Furlough must be granted to the prisoner periodically irrespective of any particular reason. since the object behind this tool is merely to enable him to retain family and social ties and avoid negative effects of a continuous prison life. The period of furlough is treated as remission of sentence. Parole, on the other hand, is not a matter of right and can be denied to a prisoner even if he makes out sufficient case for release on parole, where the competent authority is satisfied, of course on valid grounds, that release of the prisoner in question on parole would be against the interest of society at large or the prison administration. The subtle distinction between the two has been explained by the courts from time to time. A parole can be defined as conditional release of the prisoner i.e. an early release of a prisoner, conditional on good behaviour and regular reporting to the authorities for a set period of time. It can also be defined as

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a form of conditional pardon by which the convict is released before the expiration of his term. Thus, the parole is granted for good behaviour on the condition that parolee regularly reports to a supervising officer for a specified period. Under the Guidelines, such a release of the prisoner is temporarily on some basic grounds, It is to be treated as suspension of the sentence for time being, keeping the quantum of sentence intact. Release on parole is designed to afford some relief to the prisoners in certain specified exigencies, as described above. Furlough, on the other hand, is a brief release from the prison. It is conditional and is given in case of long term imprisonment. The period of sentence spent on furlough by the prisoner need not be undergone by him as is done in the case of parole. Furlough is granted as a good conduct remission. A convict literally speaking must remain in jail for the period of sentence or for rest of his life in case he is a life convict. It is in this context that his release from jail for a short period has to be considered as an opportunity afforded to him not only to solve his personal and family problems but also to maintain his links with society. Convicts too must breathe fresh air for at least some time provided they maintain good conduct consistently during incarceration and show a tendency to reform themselves and become good citizens. Thus, redemption and rehabilitation of such prisoners for good of societies must receive due consideration while they are undergoing sentence of imprisonment. Both parole and furlough are conditional release. Parole can be granted in case of short term imprisonment whereas in furlough it is granted in case of long term imprisonment.6 In Delhi, grant or refusal to grant furlough also is governed by the Delhi Parole/Furlough Guidelines, 2010, notified on 17 February 2010. As

6

Dinesh Kumar v. Govt of NCT of Delhi, WP(C) 1229 of 2012, decided on 01 May 2012 by the Bench of Mr. Justice A K Sikri, CJ and Mr. Justice Rajiv Sahai Endlaw of the Delhi Court.

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contemplated by clause 24 of the Guidelines. a prisoner who is sentenced to 5 years or more or rigorous imprisonment and has undergone 3 years of imprisonment excluding remission can be released on furlough. Vide clause 25 of the Guidelines, a prisoner, would be entitled to 7 weeks of furlough in a year with the first spell consisting of 3 weeks and the subsequent spells consisting of 2 weeks each. Clause 26 of the Guidelines enlists the eligibility criteria for release on furlough. As per the said provision, a person is entitled to be released on furlough where:  The applicant prisoner earned three Annual Good Conduct Remissions with good conduct in the prison and he continues to maintain good conduct;  The applicant prisoner is not a habitual offender;  The applicant prisoner is a citizen of India;  The applicant prisoner has not been convicted of robbery, dacoity, arson, kidnapping. abduction, rape and extortion or any offence against the State such as sedition;  The release of the applicant prisoner is not considered dangerous or deleterious to the interest of national security or there exists no reasonable ground to believe that the convict is involved in any pending investigation in a case involving serious crime; and the applicant prisoner is not such a person whose presence is considered highly dangerous or prejudicial to the public peace and tranquility by the District Magistrate by his home district. The sanctioning authority for furlough is the Director General, Prisons and the furlough applications are to be taken up on a fast-track basis by the Superintendent of Jail (in co-ordination with the Department of Home) within a period of 2 weeks. It is open to the competent authority to impose suitable conditions while granting furlough in exceptional cases. 343

6.3.4 Suspension Commutation and Remission Two contrary views have always prevailed on the issue of purpose of criminal justice and punishment. The punishment, if taken to be remedial and for the benefit of the convict, remission should be granted, but if sentence is taken purely punitive in public interest to vindicate the authority of law and to deter others, it should not he granted. Dias, in his book Jurisprudence7 observed thus: The easing of laws and penalties on anti-social conduct may conceivably result in less freedom and safety for the law-abiding. As Dietze puts it: Just as the despotio variant of democracy all too often has jeopardized human rights, its permissive variant threatens these rights by exposing citizens to the crimes of their fellowmen The more law-abiding people lose confidence in the law and those in authority to protect them, the more will they be driven to the alternative of taking matters into their own hands, the perils of which unthinkable and are nearer than some libertyminded philanthropists seem inclined to allow … In Salmond on Jurisprudence,8 the author dealt with the purpose of criminal justice and punishment as under: Deterrence acts on the motives of the offender, actual or potential; disablement consists primarily in physical restraint. Reformation, by contrast, seeks to bring about a change in the offenders character itself so as to reclaim him as a useful member of society. … The reformative element must not be overlooked but it must not be allowed to assume undue prominence. How much prominence it may be allowed, is a question of time, place and circumstance.

7 8

Michael Dias, Reginald Walter, Jurisprudence, Buttersworth, 1985. P J Fitzgerald, Salmond on Jurisprudence, Sweet and Maxwell, London, 12th Edition, 1968.

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Punishment enables the convict to expiate his crime and assists in his rehabilitation. The concept of remission policy manifests a process of reshaping a person who, under certain circumstances, had indulged in criminal activity and is now required to be rehabilitated. Objectives of the punishment, as now recognized are wholly or at least predominantly reformative and preventive. The basic principle of punishment that ‘guilty must pay for his crime’ should not he stretched to the extent that punishment becomes vicious. The matter is required to he examined keeping in view the modern reformative concept of punishment. The sentence softening schemes have to be viewed from a more humane and social science oriented angle. Punishment should not be regarded as the end hut as only the means to an end. The object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal. The circumstances in which the offence was committed and the state of mind of the convict when the offence was committed are very significant factors, to be taken note of while deciding the punishment. Section 432, Criminal Procedure Code, 1973, empowers the competent authority to suspend or remit sentences in whole or in part of any person sentenced to punishment for an offence, at any time, without conditions or upon any conditions that the person sentenced accepts. Whenever an application is made to the competent authority for the suspension or remission of a sentence, the authority may require the Court before or by which the conviction was held or confirmed, to state its opinion as to whether the application should be granted or refused, together with reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists, If any condition on which a sentence has been suspended or remitted is in the opinion of the competent authority, not fulfilled, the authority may cancel the suspension or remission, and thereupon the person

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in whose favour the sentence had been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence. Section 433-A, Criminal Procedure Code, 1973, imposes restriction on powers of remission or commutation where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by law or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least fourteen years of imprisonment. While considering the premature release of a life convict, the authorities are required to consider his case mainly taking into consideration the questions as to whether the offence was an individual act of crime with no affect on the society at large, as to whether there was any possibility of a future recurrence where the convict commits a crime; as to whether the convict had lost his potential to commit crime: as to whether any fruitful purpose would be achieved by confining the convict any further; as to whether the socio-economic condition of the convicts family call for such a premature release and other similar facets. 6.3.5 Pardon The term ‘pardon’ has been defined as an act of mercy by which the offender is absolved from the penalty which was imposed on him. The grant of pardon may be absolute or conditional. Under conditional pardon, the criminal is left off with certain conditions, the breach of which will result into revival of his sentence and he shall be subjected to the unexhausted portion of the sentence Pardon is an act of grace proceeding from the power entrusted with the execution of law, which exempts the individual on whom it is bestowed from the punishment that law would inflict for a crime he has committed. Every civilised society recognises and has to be provided with 346

the pardoning power, which shall be exercised as an act of grace and humanity in appropriate cases. This power has been exercised in most of the States from time immemorial, and has always been regarded as a necessary attribute of sovereignty. It is also an act of justice, supported by a wise public policy. It cannot, however, be treated as a right or a privilege. It is as much an official duty as any other act. It is vested in the authority not for the benefit of the convict only, but for the welfare of the people, who may properly insist upon the performance of that duty if a pardon or parole is to be granted. Pardon as a mode of mitigating the sentence of the criminal has always been a controversial issue since long. Proponents of power to pardon in the penal system argue that it substantially helps in saving an innocent person from being punished due to miscarriage of justice or doubtful conviction. As observed by Chief Justice Taft in James Shewan and Sons v. United States,9 the executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law’. As J L Gillin observed, if the pardons are administered with care and solely to correct injustices, they certainly do not diminish respect for law and rather infuse confidence in the machinery of justice. Besides, the hope of getting pardoned in itself serves as an incentive for the convict to behave properly in the prison and thus helps considerably in solving the problem of prison discipline. Historically, pardon was extensively used also as a method of reducing overcrowding in prisons during war, political upheaval and revolt. Opponents of the power of pardon as an effective measure of mitigating sentence argue that the power to pardon is often misused by the executive. Possibility that the convict may secure his release from prison by exerting undue influence on the executive authority can never be ruled out. 9

[1924] 69 Law 527.

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Another evil that follows as a result of pardon as a measure of undoing the guilt of the convict is that it has an adverse effect on prisoners because they invariably try to secure pardon rather than reforming themselves. Despite all its shortcomings, the great moral advantage of pardoning power of the executive lies in the fact that it is always referable to grant liberty to a guilty offender rather than sentencing an innocent person. In India, the provisions contained in Articles 72 and 161 of the Constitution provide that the President of India and the Governors of the States respectively, are empowered to grant pardon, reprieve, or commute the sentence of any convict. Similar provisions exist in the constitutional documents of many other countries which empower the executive head of the State to grant pardon or alter the sentence of the convict. In the case of Kuljit Singh alias Ranga v. U. Governor of Delhi,10 the Supreme Court of India was called upon to decide the nature and ambit of the pardoning power of the President of India under Article 72 of the Constitution. In that case, the death sentence awarded to one of the appellants was confirmed by the Supreme Court. where after his mercy petition also was rejected by the President. Thereafter, the appellant filed a writ petition in the Supreme Court of India challenging the discretion of the President of India to grant pardon on the ground that no reasons were given for the rejection of his mercy petition. The Supreme Court dismissed the observing thus: ….that the administration of justice by the courts is not necessarily or certainly considerate of circumstances which may properly mitigate guilt. But the question as to whether the case is appropriate for the exercise of the power conferred by Art 72 depends upon the facts and circumstance of each particular case... After all, the power conferred by Art. 72 can he used only for the purpose of reducing the sentence, not for enhancing it. We 10 AIR 1982 SC 774.

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need not, however, go into that question elaborately because in so far as this case is concerned, we are quite clear that not even the most liberal use of his mercy jurisdiction could have persuade the President to interfere with the sentence of death imposed upon the petitioner… The Supreme Court was once again called upon to decide upon the President’s power to grant pardon, reprieve or remission or to suspend, remit or commute the sentence of death imposed on the condemned prisoner, under Article 72 of the Constitution in the case of Kehar Singh v. Union of India.11 The apex court observed that the power to pardon is a part of the constitutional scheme, and it should be so treated in the Indian Republic and has been reposed by the people through the Constitution in the Head of the State. and enjoys high status; that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) must act in accordance with such advice; that the President can scrutinize evidence on record and may come to a different conclusion from that of the Court regarding the guilt or sentence of the accused. 6.3.6 Open Prisons Modern penologists believe that criminals respond more favourably to humane treatment and constructive rehabilitative process rather than to the purposeless infliction of pain in the name of punishment. Across the world, significant changes have been or are in the process of being introduced in penology aimed at meaningful treatment of criminals. Open prisons, also named as open air camps, open jails or parole-camps (being a sort of expanded form of parole), are another such significant tool of criminal reformation, Open air-institutions are essentially a 21st century device for rehabilitating offenders to normal life in the society through an intensive after-care programme. 11 AIR 1989 SC 653.

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The United Nations Congress on Prevention of Crime and Treatment of Offenders held in Geneva in 1955 defined an ‘ open prison’ thus: An open institution is characterized by the absence of material and physical precautions against escape such as walls, locks, bars and armed-guards etc., and by a system based on self-discipline and innate sense of responsibility towards the group in which he lives. Thus open prisons are minimum security tools for jail inmates, aimed at rehabilitating them in the society after final release. The open prisons provide work to the inmates in forests, agricultural farms and construction sites instead of allowing them to be idle inside the prison cells. These prisons play an important role in the scheme of reformation of a prisoner which has to be one of the critirea of reformative management. They represent one of the most successful applications of the principle of individualization of penalties with a view to social readjustment because introduction of wages system, release on parole, educational, moral and vocational training of prisoners are some of the characteristic features of the open prison system, Besides, open prisons are far less costly than the closed prison establishments and the scheme has a further advantage of government being 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 open jails acquire financial self-sufficiency. During the 19th century open prisons existed in America in the name of prison farms. The convicts, who were nearing the end of their sentences, were generally transferred from conventional prisons to the open farms in forests as labourers. These open prisons however, differed from modem open prisons at least in one aspect that these were literally ‘slave-camps’. However, the experience with these prison 1mm labourers was quite encouraging. It was found that majority of these prisoners could be trusted 350

if engaged in corrective work outside the guarded enclosures under unarmed supervisors. Although the system involved a risk of prisoners escaping from the worksites, the number of actual escapes was so negligible that this mode of imprisonment was adopted as an integral part of correctional programme in the United States. The greatest contribution of open farms to the prison community was to develop self-reliance and selfconfidence among the prison inmates by resorting to minimum security measures. In the closing years of the 19th century, a semi-open prison institution called the Witzwill establishment was set up in Switzerland. Open-prisons in modern sense were, however, established, in UK in 1930’s and in US around 1940’s. Sir Alexender Parelson, the member secretary of the Prison Commission of UK from 1922 to 1927 made significant contribution to the development of open prison in England. The philosophy underlying such minimum security institutions is based on the basic assumptions that a person cannot be trained for freedom unless conditions of his captivity and restraints are considerably relaxed, that the gap between the institutional life and free life should be minimized so as to ensure the return of inmate as a law abiding member of society; that the dictum ‘trust begets trust’ holds good in case of prisoners as well, therefore, if the prisoners are allowed certain degree of freedom and liberty, they would respond favourably and would not betray the confidence reposed in them. Inspired by the success of open prisons in UK and US, many countries across the world, including India adopted the said system. In Netherlands, open prisons were established during 1957-1962 and the same were meant to serve as pre-release treatment centers operating between the period of prisoner’s detention in a closed institution and his return of free life. The inmates of the open prisons were allowed to mingle freely with members of society while at work as also during leisure. The number of

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inmates in each of these institutions was limited to a maximum of twentyfive as a part of individualized treatment so that their individual progress could be kept under watch by the competent supervisors. Entitlement of prisoners for admission to the open prisons was and is on the basis of recommendations made by the Central Selection Committee which meets on monthly basis. The stay of a prisoner in the open prison cannot exceed five months. The open prisons in Netherlands are located near provincial towns so that the prisoners have adequate chances of being engaged as wage earners by the private entrepreneurs. 30% of the total wage earnings of an inmate is deposited in his name, to be paid to him at the time of his final release whereas 10% is paid to him for his pocket expense. The inmates are, however, expected to spend their leisure time within the institutional framework with opportunities to visit the places of entertainment and recreation. They can meet their friends and relatives without any supervision and are also free to put on clothes of their choice.12 France also has the system of open prisons, where the inmates go for work as free workers without any supervision and return to the prison every evening or during non-working days. The scope for expansion of open prisons in France is rather limited because even the traditional prison system of France allows prisoners to work outside the institution with private employers under proper supervision. In India, the first open prison was started in the year 1905 in Bombay Presidency, for which the inmates were selected from the special class of prisoners of Thane Central Jail, Bombay. However, this open prison was closed in 1910. Thereafter, in the year 1953, Uttar Pradesh established the first open prison aimed at the construction of a dam over Chandraprabha river near Varanasi. After completion of the dam construction, the prisoners 12 Professor NV Paranjape, Criminology and Penology, Central Law Publications, Allahabad, 11 the Edition, 2002.

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were shifted to a nearby place of constructing the dam over Karamnasa river. The third open prison in Uttar Pradesh was made at Shahbad for digging a canal. Encouraged by the success of these experiments, a permanent open prison was started at Mirzapur on 15 March 1956 with a view to employ prisoners on the work of quarrying stones for Uttar Pradesh government cement factory at Churk, Mirzapur. Prisoners selected for the open jail from different jails of the state are transferred to District Jail, Bareilly, from where they are shifted to the open prison. Success of open prisons in Uttar Pradesh led to establishment of open prisons in many other states. In 1996, there were 24 open prisons (excluding semi-open camps) in 12 states across India. Such open prisons, usually located on the outskirts of a town fall within five kilometers of the nearest town, except in Kerala and Uttar Pradesh where the same are situated 15 to 35 kilometres from the nearest towns. The capacity of the Indian open prisons varies from less than 100 to 1000 prisoners. Some of these prisons provide work only in agriculture, some in industries, and some both in agriculture and industries. In Delhi, for the first time in June, 2013, a proper semi-open jail was opened at the Tihar Prisons campus, and 20 inmates, mostly murder convicts were selected for it. Each of the selected inmates had to go through a tough selection process, the test including good behaviour and completion of more than 12 years of their jail term and their furnishing surety of Rs. 10,000/- each that they won’t try to escape. Presently, the said open jail in Delhi covers only male inmates. The semi-open jail, converted from the staff quarters can house up to 100 inmates. Dressed in navy blue pants and light blue shirts, such inmates can go to work every day at around 06:00 am and come back to their rooms by 07:00 pm. The said convicts will stay within the jail premises but will be released out of their jails in the morning

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so that they can work during the day in an open environment with PWD, horticulture department or the Tihar Haat (where products manufactured in Tihar jail are sold).13 Researches carried out in India as well as abroad reflect that more prisoners in open prisons indicate a high level of adjustment to personal problems as well as to co-inmates and the staff than those in closed prisons, which is the result of better facilities and free environment; that the inmates in open prisons exhibit more positive self-esteem and positive attitude towards co-inmates than those in closed prisons; that anxiety, insecurity and guilt feelings are higher amongst the inmates of closed jails than in those of open jails; that attitude towards authorities is more cooperative amongst prisoners in open camps than those in closed jails; that neuroticism and extroversion among convicts are found to be much less in open prisons than in closed prisons, and that inmates of open prisons show more positive attitude towards society than those in closed prisons. These findings establish the positive role of open prisons in the reformation and rehabilitation of criminals. There is a need to establish open prisons in all those states where they do not exist at present. At the same time, there is also a need to frame common rules of eligibility for admission and the facilities for inmates of open prisons in all states across the country. Then, there is also a need to ensure ruling out biases, pressures and corruption in preparing lists of prisoners to be sent to open prisons by superintendents. Courts also need to be empowered explicitly by law to send certain categories of convicts to the open prisons. 6.3.7 Self Governance by Inmates In order to ensure discipline and obedience among prisoners, experiments on self- government in prisons have been carried out in few systems, like San Pedro in Bolivia and few other states in the US. The 13 News report, Capital gets its first semi open jail, The Times of India, 12 June 2013.

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underlying purpose of the exercise is to ensure complete or at least partial freedom for prison population from external control, which ultimately serves also as an effective tool of reformation. Under the system of selfgovernment in prisons, the inmates elect some of their fellow prisoners as their representatives and the entire prison management is run by that elected body of prisoners, who exercise complete or at least partial control over mess and are expected to take care of the interests and welfare of their fellow prisoners.The self-government of prisoners in Osborn USA jails proved to be very successful and even reduced the number of jail escapes. The inmates generally behaved well and never tried to misuse the liberty extended to them. In India, however, the system of self-government in prisons has not been much successful, because perhaps the lack of overall moral discipline among the criminals who are generally illiterate persons from the lower strata of society. Therefore, instead of introducing complete selfgovernment system, India has experimented with a system of partial selfgovernment in its prisons. Under this partial system, the prisoners who have good conduct record in the prison are attached to work with jail officials and thus they act as a connection between the prison authorities and their fellow inmates. Such privileged prisoners are granted certain facilities and are even allowed to move out of the prison occasionally during the course of their work. This proves advantageous multifariously. Firstly, it develops a sense of duty, honesty, trust and loyalty among the prison inmates and secondly, it leads to a psychological effect on other prisoners by conveying that a disciplined behavior in prison can get them also certain facilities including reduction in term, of their sentence like their fellow prisoners. 6.3.8 Work Release Work release is considered to be a very effective reformation tool in modern criminal justice. In this method, the prisoner is allowed to work for

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pay in the society for part time basis. This gives him an opportunity to mix up with the society in a normal manner without any limitations. The control of the prison authorities in, however not completely taken away since he has to work within the permitted parameters and during non-working hours, he has to return the concerned correctional institution. The correctional authorities collect his earnings and which are paid to the prisoner on the completion of sentence. However it differs from parole as inmates continues live in and subject to control of jail authorities except the working hour. This helps the prisoner to adjust in the situation at the work place after the release. 6.3.9 Vipassana ‘Vipassana’ which means ‘insight’ or ‘to see things as they really are’ in Pali, is the essence of the Buddha’s teachings. It is a straightforward way to achieve peace of mind and to live a happy, useful life. It equips one with the inner strength to face the challenges of life in a calm, balanced manner, and gain mastery over one’s mind. It is a practical experiential way of understanding the mind-matter phenomenon and purifying one’s mind of underlying negativities. Vipassana meditation, as taught by S.N. Goenka is being used as a prison reform measure with the ultimate objective of reducing recidivism, and reintegration of prisoners back into the society once they are released. Vipassana was rediscovered by Gautama, the Buddha, about 2500 years ago in India. Although this technique became very popular and was practiced by many at the time of the Buddha, its purity got lost in India after the Buddha’s death. It was only in Myanmar (formerly called Burma) that Vipassana meditation was preserved in its true form and was passed on traditionally from teacher to student over the years. Sayagyi U Ba Khin was one of the last teachers from whom S.N. Goenka learnt this technique and brought it back to India. Today there are more than 90 Vipassana meditation centers all over the world.

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The first Vipassana course in a prison took place in Jaipur, India, in 1975. However, it was only after almost 20 years that Vipassana established itself as a tool for social and prison reform in the 1990s. It was Kiran Bedi, the then Inspector General of Prisons of Tihar Jail, the highest security prison in the country and the largest in Asia, who introduced Vipassana as one of the reform techniques of Tihar jail. The tremendous impact and change that it brought about in the prisoners was the turning point and very soon more and more prisons began organizing these meditation courses for the prisoners. Today, the meditation practice is not just confined to India but its non-sectarian and universal application is being recognized in prison facilities in many other parts of the world, especially North America, where Vipassana has had the same positive effects on the prison inmates. It was with this purpose of dealing with the emotional and psychological problems of prison inmates that Dr. Kiran Bedi, the then Inspector General of Tihar Jail introduced Vipassana in Prisons. Her strong belief in ‘offender rehabilitation’, rather than punishment, spearheaded many fundamental and systemic changes in Tihar. Improving living conditions of the inmates, providing better facilities, dealing with corruption, ensuring improved medical services were all a part of the reform measures. To ensure that the inmates used their time in the prison usefully and productively, various educational and vocational programs became an integral part of the prison, which helped in building community as well as developing their personality in a positive manner. 6.3.10 After Care Programmes There is also a need to work on after-care scientific programming, aimed at rehabilitation of the prisoners after their release. During last about 2-3 months of the awarded term of sentence, the prisoner should be placed under an intensive after-care system, which systematically designed individualized process will offer him adequate opportunities to overcome 357

his inferiority complex and guilt. In India, certain social institutions such as seva sadans, nari niketans and Reformation Homes are at work in different places, involved in the task of after- care and rehabilitation of criminals, but the functioning of these is generalized and not scientifically designed. Open prisons also can serve a similar purpose. It is always preferable to place even the released prisoner under the supervision and guidance of a specially trained officer for rehabilitation in the free community. In this regard, the Welfare Officers appointed in prisons can play an important role in providing adequate counseling, legal help and financial assistance to the prisoners at the time of their release so that they are properly rehabilitated in society 6.4

ATTITUDE OF PUBLIC TOWARDS PRISONERS Public attitude and perception towards the prison institutions and

their management also needs to be Fine tuned through an intensive publicity programme using the media. There is a need to create a right climate in society to accept the released prisoners with sympathy and benevolence without any hatred or distrust for them. The media should be allowed to visit and cover the prison institutions frequently so that their misunderstanding about prison administration may be cleared. Greater participation of public in prison administration shall certainly create an atmosphere conducive to reformation of the prisoners.In order to inculcate discipline in the prisoners, a general policy to reduce the sentence of the prisoner showing good behavior will operate as incentive for them to maintain discipline and will also offer them an early opportunity to join back the community and at the same time relieve the burden of the State. 6.5 REFORMATIVE APPROCH TOWARDS FEMALE PRISONERS During their term of sentence, female prisoners should be treated with more generosity and specifically speaking, they should be allowed to

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meet their children as frequently as possible, as the same will keep them mentally fit and responsive to the treatment methods. The correctional and educational programme required in case of female prisoners must be liberal and not as rigorous as in case of male prisoners, because females need lesser coercive control and custody owing to their feminine temperament. Particularly, the women who fall a prey to prostitution offences should be treated with sympathy and their illegitimate children should be assured normal life in the society. 6.6

GENERAL ISSUES RELATED TO PRISON REFORMS Efforts for rehabilitation of a criminal, in order to be effective, must

begin from the moment he steps inside the prison. A comprehensive and individualized reformation and rehabilitation programme is, therefore, essential to cater to the needs of different categories of criminals. The prison-life should be so regulated that the prisoner is able to overcome all his psychological strains and adapt himself as a law abiding citizen after his release from jail. It must be remembered that the role of prisons has radically changed over the years and they are no longer regarded as mere custodial institutions, instead prisons have now acquired a new dimension as treatment and training centers for those who fall foul with law. The emphasis has thus shifted from custody to training and reformation of criminals and the policy of segregation now stand substituted by community participation of prisoners. Protection of society can be better ensured if the offenders are corrected and reformed within the society itself. To talk about treatment and training in prisons is not rhetoric, but real. There is need to improve the prison system by introducing new techniques of management and by apprising the prison staff with their constitutional obligations towards prisoners. This would surely end the gloom cast on our prison system and create new awakening among the prison community. It

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cannot be ignored that majority of criminals sentenced to imprisonment want to return the society as law abiding citizens. 6.6.1 (A) Mulaqat system The system of mulaqat (family meetings) of prisoners in jail needs to be taken seriously as it is an extremely effective but unexploited tool of reformation. although the prisoners are allowed to meet their near relatives at fixed intervals, the mulaqat is for very short time and in very uncomfortable atmosphere, with no privacy during such meetings. The meetings under the supervision of prison guards are really embarrassing for prisoner as well as the visitor and many emotions on both sides remain unexpressed for want of privacy. In Tihar Jail, the mulaqat system earlier used to be that the visitor would stand in front of the prisoner, the two being separated by a double wall with grill windows, so that they could see and talk to each other across the distance but could not touch each other, so that there is no transfer of any objectionable material by the visitor to the prisoner. But it was found that oven across the double wall, the visitor and the prisoner could exchange objectionable material through the grilled window, using paper missiles with the help of rubber band or even chewed gum. In order to curb this menace, Tihar Jails improvised the mulaqat section in the jails by converting the grilled windows into fixed toughened glass windows in the double wall that separates the prisoner from the visitor during muluqat so that the chances of transfer of objectionable material could be completely ruled out. For auditory interaction between the prisoner and the visitor, now there are microphones and speakers on both sides. But with this step of the jail authorities, mulaqat system has lost its utility substantially. For, now there are enormous complaints that the sound system invariably fails to transmit clearly audible voice due to poor maintenance and lack of sound proofing, besides the toughened glass of the window being always smudged and unclean, there is no visibility as well. Thence,

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the conversion of the system using advancement of technology in order to prevent transfer of objectionable material into the jail has brought immense damage to the highly useful reformatory tool of mulaqat. It is submitted that for failure on the part of the guards on duty to ensure strict vigil and prevent transfer of objectionable material into the jail, right of the prisoner to muluqat, which is also an effective scientific tool of reformation cannot be taken away. The right of the prisoners to communicate and meet friends, relatives and legal advisers should not be restricted beyond a particular limit. For, 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 visit continue the personal relationship during the term of imprisonment which brings about a psychological communication between him arid other members of the family. 6.6.1 (B) Celebration of festivals and other ceremonies It is opined by the reformers that the system of limiting the scope of festivals and other ceremonial occasions merely to delicious dishes for prisoners needed to be changed by bringing in celebrations through rejoicings and other meaningful programmes so that the prisoners could at least momentarily forget that they are leading a fettered fife. Jail authorities in some places claim that now a Lot is being in that direction by organizing art and music programmes, besides spoils and games activities inside the prisons. But the same is not showing effective results in the mindset of prisoners, so something more is called for. 6.6.1 (C ) Communication by post or mail The existing rules relating to the restrictions and scrutiny of postal mail of inmates should be liberalized. This shall infuse trust and confidence among inmates for the prison officials, Most of the times, the only excuse presented by the prison authorities in support of such restrictions is that the

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same is done in the interest of security of the prison. But it is submitted that in the name of prison security, maintenance whereof is the bounden duty of the authorities, right of the prisoners cannot be allowed to be curtailed. Even postal communication helps in ensuring life in the familial bonds of the prisoner and thereby helps in reformation and rehabilitation of the prisoner. 6.6.1 (D) Education and skill training The continuing education of prisoners is yet another tool, that keeps them occupied and also would help their rehabilitation after release from jail. There should be greater emphasis on vocational training of inmates, which will provide them honourable means to earn their livelihood after release from jail. The facilities of lessons through correspondence courses should be extended liberally to the inmates, who are desirous of taking up advanced studies. Those prisoners, who are not inclined towards formal education, should be provided training in vocations like tailoring, bakery, carpet weaving, carpentry, and embroidery etc., which activities consume extensive occupation of body and mind. The prisoners who are well educated need not be subjected to rigorous manual work in jail and instead they should be deployed in some productive work requiring use of mental faculties. The training of jail inmates in the vocational trades, have resulted in the production of articles which have the market value. The details of the gross value of such produce in different State. Delhi had reported the highest gross value of sale proceeds of 2,885.0 lakhs earned by the jail inmates followed by Bihar (1,708.6 lakhs), Uttar Pradesh (1,456.1 lakhs), Kerala (1,255.3 lakhs), Tamil Nadu (1,156.0 lakhs), Maharashtra (1,143.1 lakhs), Gujarat (818.3 lakhs), Andhra Pradesh (577.0 lakhs), Jharkhand (296.6 lakhs), Chhattisgarh (269.5 lakhs) and Punjab (266.3 lakhs). The value of goods produced per inmate was highest in Delhi (`23,817.4)

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followed by Chandigarh (21,812.0), Kerala (18,069.7), Tamil Nadu (8,760.9) and Gujarat (7,063.4) during the year 2012.14 There is a proven correlation between illiteracy, innumeracy and offending. Most prisoners have access to educational courses and training while in prison. The objective is to enable them to gain the skills and qualifications that could help them to find the employment on release. Many Research shows that the prisoners who gain employment after release are far less likely to re-offend. In some of the Jails in India, like Tihar Jail, those prisoners who are disciplined and react favourably to prison staff are joined in to participate in the prison administration, which is taken as a badge of honour. But in this system, there is often lack of bonafides, in the sense that the prison officials in a calculated manner cultivate some of the prisoners by joining them in the prison administration, but with the larger goal of exploiting them as spies and henchmen. 6.6.1 (E) Spiritual trainings Some penologists have advocated the need for spiritual training of the prisoners, which is certainly a positive step towards reformation. It is strongly believed that the practice of yoga and meditation can enable the prisoners to control their mind, which is prone to aggression bouts owing to their basic temperament and prison life. This is indeed a new approach to the problematic of crime and criminal in the Indian setting. Regular practice of yoga not only keeps the human body healthy and strong, but also bends the negative temperament to positive one, thereby taking the criminal away from criminogenic tendencies. Thus, by the practice of yoga in prisons, crimes can be considerably controlled and hardened criminals can be reformed. The experiment carried out in the many Jails across country

14 Prison Statistics India-2012 published by national crime record bureau

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through introduction of yoga and meditation, have brought noticeable change in the living and thinking of the prisoners .Many jails across India are holding meditation and spiritual exercises regularly, The philosophy underlying this kind of prison reform programme is that a person often commits a crime because of anger, hatred or a feeling of rivalry or revenge and in order to help such offenders, it is essential to control their emotions, which are aggrandized by pessimistic manifestations of mind like tension, failure or anxiety. A majority of prisoners repent for their crime and they sincerely want to mend their ways but often lack necessary inspiration or the sprit. It is, therefore, essential to enlighten such people by inculcating in them values of morality and ethics so that they get the inner strength of distinguish between good and bad. This improvised Indian approach to prison reforms will surely will bring about a positive change in the attitude of prisoners and help in their rehabilitation. 6.7

PRISON CULTURE The

correctional

system

in

the

world

is

experiencing a

metamorphosis. Consequently, now is a critical time for the development of robust theories of the prison culture. Prison populations continue to soar at alarming rates, and laws impacting the prison population continue to change. Determinate sentencing laws, including Three-Strikes Laws and habitual offender statutes, have helped give the prison population a new dynamic, as the number of elderly offenders continues to grow. Other offender groups who are being represented in increasing the proportions are those inmates with terminal diseases, such as AIDS, and female offenders. It is entirely much possible that this crossroad in the corrections cannot be fully understood in the context of traditional models of the prison culture. Even if theoretical models take on a new composition, elements of the classical models will inevitably remain, as they are still relevant in gaining an understanding of the prison culture.

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Socialization Process in prison To ensure good discipline and administration, an initial classification must be made to separate male from females, the young from the adults, convicted from the unconvinced prisoners, civil from criminal prisoners and from casual from habitual prisoners. The main object of prison labour is prevention of crime and reformation of the offenders. And the other main object was to engage them so as to prevent mental damage and to enable them to contribute to the cost of their maintenance. The under trail prisoners constitute a majority of population in prison than convicted prisoners. The under trial prisoners are presumed to be innocent and most of them are discharged or acquitted after immeasurable physical and mental loss caused to them by detention due to delay in investigation and trial. Prisoners constitute important institutions which protects the society from criminals. The obstacles in prison reforms are resource allocation, the deterrent functions of punishment, the notion of rehabilitation, and internal control. various judgments passed by Indian courts suggest that they are sensitized to the need for doing justice to the people to whom justice had been denied by a heartless society for generations. Although the several judgments have recognized the rights of the prisoners, these have resulted in few amendments to legislation. While judicial sensitivity and activism is appreciable, it must be borne in mind that the country’s criminal justice system still suffers from substantive and procedural deficiencies; once a citizen is arrested, even if on a relatively minor charge, he or she could be held in custody for years before his or her case comes up for trial. Those who are affluent, are still being able to negotiate their way around the numerous obstacles that lies on the road to justice. For an ordinary citizen, an encounter with the laws is very much the stuff of nightmares. There is a long course before Indian judiciary to be followed in order to achieve the goal of the social justice (Krishna Iyer VR, 1984).

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Though the various rights have been granted to the prisoners, in reality, they do not reach the prisoners. An outstanding example is the right to speedy trial. A huge backlog of the cases impedes the delivery of the justice and this is a violation of the rights by the court itself. Similarly, free legal aid is an idealistic goal, but presently far from reality. Many of the prisoners don’t know about the services and they are unable to utilize it. Apart from that, we see how Tihar Jail has successfully carried out a number of the welfare programs for the prisoners including the education, recreation and free legal aids to help them during their stay in the prison. Such schemes need to be replicated in other prisons of the country. The other prisons in India should take Tihar Jail and Delhi Prisons Authority as the model in order to work for a better and more efficient working.It is also imperative that adequate fund allocation is provided by the Government, and also to be generated from inside the prisons by emulating the Tihar model, so that the stay and subsequent rehabilitation of the unfortunate prisoners doesn’t get affected due to the lack of funds. A review of the Management of Prisons in the State of Gujarat brought out the deficiencies in the financial management and in providing basic infrastructure in the prison. Equipment like Door Frame Metal Detectors, Close Circuit Television Cameras were found to be either absent or not working optimally. There were security lapses in terms of prisoners’ escapes, entry of prohibited articles inside prison and even excavation of tunnel. Lack of planning was observed in optimal utilization of the accommodation capacity in the prisons leading to overcrowding in some prisons and underutilization in some other prisons. Utilization of newly constructed prisons/hardcore cells was delayed due to lack of co-ordination with government Departments. Health care facilities provided in the prisons were inadequate. Acute shortage of security staff adversely affected security of prisons. No State Advisory Board or the Prisons Development Board had been constituted in the State for better administration and modernization of prisons. Internal control system was found weak in the prisons.

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NCRB data and Reformation Report have illustrated that the prison condition of our country and the process being used as per the references of reformations in India. The central jail has given right to prisoners so that the prisoners can enhance themselves and can participate in the reformative process in the jail. As in the jail that we have seen prisoner's participation in games and sports activities within the prisons took a big jump with the organization of inter ward and the inter jail competitions twice a year for the last over five years. In all the prisons, sports like volleyball, cricket, basketball, kho-kho, kabbaddi, chess, carom etc. are organized during the winter sports festivals, which are popularly known in the jail as "Tihar Olympics". Inter jail cultural meets titled "Ethnic Tihar" are held during spring season every year in which competitions in music, dance, sher-oshairi, quawali, painting, quiz etc. are organised for inmates. Eminent personalities from the field of sports and culture are invited on these occasions to encourage the prisoners to take part in the sports and the cultural events, to foster their physical, mental and cultural development and inculcate discipline. In tihar, there is a religious environment, so there; all Religious and National festivals are celebrated by one and all inside the prisons. On Republic Day and Independence Day National Flag is hoisted in all the prisons. All the religious festivals like Holi, Diwali, Id, Guru Parv, X-mas etc. are celebrated by one and all of the prisoners. On Rakshbandhan Day sisters/ brothers are allowed to meet the inmates and tie Rakhie. Sweets are prepared inside the prisons and sold to the visitors. This is a huge occasion which helps the jail administration to convey to the prisoners that they Care for them. 6.8

ROLE PLAYED BY HUMAN RIGHTS COMMISSION IN PRISON REFORMS The role of the Human Rights Commission in protecting and

safeguarding the human rights of the prisoners in custody or the inmates ought to be analyzed. Under the present management and leadership, the

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Commission has played and has been playing a pivotal role in developing a desired culture for the security and protection of human rights in the country. National Human Rights Commission has built up an edifice of human rights accountability on the foundation of autonomy and transparency. While concentrating on immediate redressals and remedy of wrongs it has taken suo moto investigations and has established contacts with Central and State Governments and Human Rights Organisation s in India and abroad. It has also struck fruitful collaboration and co-operation with non-Governmental Organizations both in India and abroad. This will go a long way in redressing the atrocities faced by the prisoners in various custodies. The National Human Rights Commission has given priority to the protection of Civil Liberties of an individual. It has also given review of legislations repugnant to the principles of human rights and its role in opposing TADA was commendable. The National Human Rights Commission has also given priority to the reforms in Civil and Police Administration to usher the human rights culture, which will reduce or ultimately eliminate custodial violence and rapes and finally National Human Rights Commission has set a base of redressal of human rights grievances of scheduled castes and scheduled tribes. The aforesaid priorities will help in creating awareness in the society about the rights of the people in custody, particularly the women will be made aware of their rights and they will also be trained to press for the same. It will also sensitise the people against human right violators, train officers, medias etc. as to how to respect human beings and make sure that the human right violators are punished appropriate legal actions are taken by drawing attention of the state authorities and the rights of the victims are restored. 368

The Commission also teaches people as to how to avoid exemplary damages or simple damages. To set an example before the people, society, Government, judiciary and police or other detaining authorities to eradicate custodial violence i.e. torture, rape, death and other inhuman activities like beating, harassing, abusing, teasing, assaulting of people in custody or inmates the National Human Rights Commission has a significant role to play. The National Human Rights Commission, has come to the conclusion that reforms in laws and treaties and even the changes made in the structure or systems were not themselves sufficient to promote and protect the safety and security of human rights. The nation requires comprehensive programmes on social regenerations to deal with the social wrongs. Appropriate programmes to reorient the citizens and to restrain the police and the bureaucracy are the need of the hour. Keeping the above in view, the National Human Rights Commission has taken positive steps to review draconian legislations. In respect of TADA, it addressed the members of parliament directly. It has initiated in depth studies in Insurgency areas on the steps to be taken to safeguard human rights, initiated Human Rights Literacy drives in schools and colleges with the help of National Council of Education Research and Trading (NCERT ) and University Grant Commission (UGC), listed on media support to create human rights awareness and participate in and organise seminars. With the establishment of the National Human Rights Commission, now there is an independent organization which looks into all complaints of violations and fixes the accountability 6.9

NATIONAL COMMISSION FOR WOMEN Women have been relegated to a secondary status and have been

subject to various legal and social discriminations in Indian scenario. The

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framers of the Constitution recognized the need to remove such inequities, and made special provisions to redress the same. The need was felt for a structure to uphold the rights and implement the provisions of beneficial legislations in an organized and institutionalized manner. The National Commission for Women (NCW) is a statutorily constituted body under the National Commission for Women Act.1990. The commission carries on various functions such as to investigate and examine all matters relating to the safeguards provided for women under the constitution and other laws. mainly the Commission’s mandate can be divided under four heads – (a) safeguard of rights of women granted by the constitution and laws, (b) study problems faced by women in the current day and make recommendations to eradicate these problems, (c) evaluating the status of Indian women from time to time and (d) funding and fighting cases related to women’s rights violations. (a) Safeguard Rights of Women: They expect the Commission to examine the safeguards for women provided by the law and the Constitution. The Commission is to submit reports about these safeguards and make recommendations about the implementation of the same. The Commission is also expected to review these safeguards periodically to identify and remedy any lacunae and inadequacies. The Commission is also empowered to take up cases involving the violation of the cases. (b) Study of problems faced by women: The Commission is to carry out studies involving the problems arising out of discrimination against woman and provide remedies for these problems. As per this part of the mandate, the Commission is also expected to advise the government about the socio – economic development of women based on these studies.

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(c) Evaluating status of Indian women The Commission, according to various guidelines, has the responsibilities of the evaluating the status of Indian women under the Union Government and State Governments. It is to inspect and evaluate the conditions of detention homes and other such facilities in which women may be detained and deal with the appropriate authorities in order to improve the condition of such places. These evaluations are to be submitted to the Government through periodic reports and recommendations. Fighting cases related to women’s rights violation. the mandate also empower the Commission to take up cases related to discrimination against women, women’s right violation and fund cases which involve the rights of a large number of women. Provisions of the act empowers the Commission to take suo moto notice of matters relating to women’s right deprivation, non – implementation of laws enacted to protect women and non – compliance of policies and guidelines for mitigating hardships of women, in such matters the Commission is empowered to approach the appropriate authorities and seek remedies. Complaint And Counseling Functions: The “core” unit of the Commission is considered to be the Complaint and Counseling Cell and it processes the complaints received oral, written or suo moto under Section 10 of the NCW Act. The complaints received relate to domestic violence, harassment, dowry, torture, desertion, bigamy, rape and refusal to register FIR, cruelty by husband, gender discrimination and sexual harassment at work place. This cell adopts a three-point method to deal with the mentioned problems  Investigations by the police are expedited and monitored. 371

 Family disputes are resolved or compromised through counseling.  In case of serious crimes, the Commission constitutes an Inquiry Committee, which makes spot enquiries, examines various witnesses,

collects

evidence

and

submits

the

report

with

recommendations. Such investigations help in providing immediate relief and justice to the victims of violence and atrocities. The implementation of the report is monitored by the NCW. There is a provision for having experts/lawyers on these committees. A number of such inquiry committees have been set up over fourteen years in order to combat many serious problems. Committees were set up to investigate the alleged police atrocities and misbehavior with girl students of Kurukshetra University the case of rape of a 30 year old woman in Safdarjung Hospital, the case of a gang rape of 15 years old girl at Lucknow and other such serious and heinous crimes against women. Legal Functions: A large part of the Commission’s mandate is related to legal research for safeguards of women, legal interventions, recommendations on bills and similar matters relating to the legal system of India. The legal cell of the Commission was set up in order to deal with these functions. 6.10

NATIONAL COMMISSION FOR SCHEDULE CASTE AND NATIONAL COMMISSION FOR SCHEDULE TRIBES Consequently upon the constitution (eighty-ninth amendment) Act,

2003 coming in force on19-2-2004 vide notification of that date the erstwhile national commission for schedule castes & schedule tribe has been replaced by (1)National commission for schedule caste and(2)National commission for schedule tribes .after notification of rules of national

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commission of SC &ST by social justice and empowerment department any person belonging to SC and ST can apply to the commission for the violation of his Human rights for the disposal of the complaint received the commission has taken action through nominated members or through offices situated in different states. 6.11

NATIONAL COMMISSION FOR MINORITIES For the protection of the Human Rights of the minority communities,

residing in different states of india and to bring them in the main stream of the society and for their progress. This commission was established under The minorities act 1992.such commissions are constituted in different states. Overview on prison reforms However, some experts believe that even the modem reformatory techniques through individualization in prison fail in cases of hardcore or habitual offenders, who would never respond favourably to any of the reformative methods of treatment, as they accept prisonisation as a normal way of life and criminality as a regular profession. So much so, that when placed in a correctional institution, recidivists treat it as a place of leisure and comfort. Thus, the treatment methods hardly serve any useful purpose in case of recidivists and such criminals have got to be confined to four walls of the prison and made to live a strictly regulated life. Commenting on the policy to be followed in case of recidivists, Sir Lionel Fox observed, ʻcertain people are worthless from social standpoint and are in fact physically, mentally and morally a burden to society and there exists no rational reason to provide care of them’. But according to me, with all humility at my command feels that in such cases, what fails is not the criminal, but the programme designed and it is the design of the

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reformatory programme in case of such criminals that is needed to be fine tuned to meet the need. And for that purpose, the prison authorities must take help from professionally trained psychologists, which can happen only when prisons are manned by those with innovative and missionary zeal.

***

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Chapter - 7

RESEARCH METHODOLOGY

CHAPTER -7

RESEARCH METHODOLOGY 7.1

INTRODUCTION “A SOCIO – LEGAL STUDY OF PRISON SYSTEM AND ITS

REFORMS IN INDIA”, In this research the researcher has focused upon the prison system of our country especially states of Gujarat, Delhi, and Rajasthan etc. In this chapter main focus of Researcher will be on following issues: 1. To get the prison system and environment of prison. 2. To get the prisoners living condition in prison. 3. Measuring the Crime Prevalence in prison 4. To get the Social Relationship of prisoners. 5. To get the steps taken in the prisons for the Reformations. Through this chapter the scholar has tried to frame out the true picture of problems which are faced by the prisoners in India. Also by collecting the primary and secondary data related to prison system researcher has tried to portray the main features of prison culture, prisoners right & duties, there facilities,techniques used for their reformation etc. these studies were done by using some tools and techniques. The primary data was collected through interaction with few judges, lawyers, police authorities as well as with prisoners whereas secondary data was collected through newspapers, books, magazines internet, journals etc.

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7.2

TOOLS AND TECHNIQUES In this research methodology for the research, researcher has used

tools like ‘Content Analyses’, ‘Interviewing the Prisoners’, ‘Interviewing the Prison Staffs’, ‘Case Studies’ ‘Reports’ etc. scholar has use some tools for collecting the data for fulfilling requirements for the completion of this research.

7.3

DATA COLLECTION METHODS Researcher has used the following tools and techniques for collecting

data: 1. Content Analyses: in this method an analytical study of the contents regarding the prison system, its environments, Conditions of prisoners, facilities provided to prisoners were discussed 2. Interviews of Prisoners, Prisoners’ Relatives and Prison Staffs a) Interviewing the Prisoners: In this method researcher have interviewed the prisoners to understand socialism inside prison, facilities which prisoners need as well as facilities which they are availing presently.. b) Interviewing the Relatives of Prisoners: in this method scholar has given summaries of the interviews taken of the relatives of the prisoners. 3. Interviewing the Prison Staffs: In this method researcher has mentioned summary of the interview with prison staff 4. NCRB data review 5. Case Studies a) Prison condition from PUCL Bulletin 1981

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b) Jail Investigation in India – A case study c) Prison Condition of Tihar Jail 2013-14 6. Reformation Report – New Delhi

7.4

INTERVIEW RESULTS

7.4.1 Summary of Interview with Prisoners Every interview with a convicted prisoner took place in the presence of an experienced prison officer, who was positioned at the place from where he could see and hear what passed between the prisoners and his interviewer and he can prevent any article being passed between the two parties. A lady Deputy of Superintendent, a Matron, an Assistant Matron or a female warder shall be present when female prisoners are interviewed.. Ordinarily, the time allowed for an interview was about half an hour. However, this could be extended by the Superintendent of the Prison at his discretion. The Researcher prepared some questions for the prisoners to ask about the system so that he could ask them within the provided time. Some of those questions were as follows: 1. What facilities are being provided in the prison? 2. Is there any proper cares for the prisoners in the jail? 3. Have education systems been added in the prison system or not? 4. What techniques are being used by the prison staffs in the prison for the care of the prisoners? During the interview the prisoners told that they have got almost every human right here in the jail, all the facilities have also been provided to prisoners like bathroom, toilet, clothing, good quality meals, sports facilities medical facilities etc. They also informed that they have also been provided the education facility here in the jail. They told that the security 377

guards, reserve guards have also been provided for the care of them. About the techniques used by the prison staffs, they told that many CCTV cameras are being used in the jail, grounds around toilets etc. The provision is that the interview could be terminated at any moment, if the prison officer present considers that there is sufficient cause for terminating it. In every such case, the reasons for terminating the interviews shall be reported at once to the senior most prison officers present in the prison. 7.4.2 Summary of Interviews of Relatives of Prisoners Researcher prepared some questions for them (relatives of the prisoners) to ask. Thus this research also depicts the stigma of having a father, mother or sibling imprisoned, and of the sense of the otherness and the exclusion that this creates, which comes through with most impact in the interviews with prisoners children. The relatives of the prisoners when interviewed there were little bit tensed about their relative in the jail. Children talked about how they felt about their parents and grief and sadness or shame which they have experienced. Still researcher interviewed the relatives of prisoners, some of them told that most of the time they saw their husband/wife/son/daughter any relative, in the jail suffers problems in the jail. There is lack of care for them in prison. Parents of the imprisoned young offenders talked about their efforts to help inmates with drug or mental health problems. Parenting involved a range of the practical and the emotional problems, including money worries, exhausting travel and relationship breakdowns. The people in the jail have been given proper facilities but there is no proper provision for food and diet. Researcher asked the reason, since the staff in jail have informed that he was given the proper facilities what they want, relatives further informed about degradation of health of inmates, Means health was not good according to the relatives of the prisoners. Some relatives of the prisoners also told that 378

the prisoners in the jail have been tortured a lot since sometimes they have noticed marks of physical abuse. However, the researcher found that the majority of prisoners were absorbed in the prison environment and showed little understanding of the problems faced by their families. They also had a tendency to abdicate responsibility, insisting that their relatives (especially mothers and female partners) were coping well. Upon release, an unrealistic expectations and a lack of understanding often led to a failure of the relationships, or of the reintegration process. It came to know while visits take place, that there is limited support of family it may be difficult to talk freely in a public arena and problematic topics may not be discussed. Both relative and prisoner demands that they should be allowed to talk in a relaxed and peaceful atmosphere, but this provision is still very rare. 7.4.3 Summary of Interviews of Prison Staffs The prison staffs told the same thing which the prisoners informed. They also told that the boundaries of the prison have been fully protected by the wires such that no prisoner can escape. According to them as per the education schedule, the books and library facilities are provided in the prison. They also told that there : “Nobody is superior and nobody is inferior. All human beings are brothers and they should act in the interest of each other and for common progress. ” and also “Whole world is one family”. Hence such is the relation between prisoners and prison. For the women, separate cells have been made considering the safety of the women prisoners. All the medical facilities have been provided for the prisoners and women prisoners. For the women prisoners there was provision of women staff. If any woman is pregnant then all the medical facilities are provided to them. This is what they think of women prisoners: “Where (in Home or somewhere either jail or country) women are worshipped and respected, their honor and dignity are protected, and the Gods stay there 379

happily. Where she is insulted and unhappy, the family becomes unhappy and finally it is destroyed.” When researcher asked about the torture in the prison, the prison staff told that if any prisoner tries to escape, or misbehaved then only they are being ill-treated. Researcher was told that If any prisoners breaks the discipline of the prison Or doesn’t follow the rules of the prison and continuously involve themselves in violent activities inside prison with other prisoners or prison staffs then 3rd degree is used as well. But staff denied the routine torture in the prison systems since they consider it as the complexities of the prison system. Hence after considering the thoughts of the prisoners and the prison staffs, the researcher concluded that condition and environments are very safe for the prisoners. The prisoners were getting the education by many educational boards like open boards, open universities etc. Hence the illiterate prisoners are being given education and they are also taught humanity. The prison system in Delhi, Rajasthan etc. have been under reformations. The thinking of the prisoners has been changed by the education system in the prison. 7.4.4 Summary of Interviews with advocates According to advocates with whom researcher interacted maximum prisoners are ‘under trial’ and such matters are pending for long time. This is due to delays in verdicts given by judiciary, also delays caused by police in collecting evidences, and unwillingness of appearances by witnesses in court. There are too many instances of giving false FIR, complaints etc. researcher was also explained about the importance of new system of video conferencing in jails by judiciary. 7.5

PRISON STATISTICS IN INDIA 2012 (Data Taken From NCRB) Prison institutions are one of the three main constituents of the

criminal justice system. Recently, there has been considerable change in the 380

social perceptions towards the prisoners. The prisons are no longer regarded as the places for punishments only. They are now being considered as reformatories and greater attention is being given to ameliorate the conditions in the jails, so that they must have a healthy impact on the prisoners in developing a positive attitude towards the life and society. The ultimate purpose is to combine the prisoners in the society after their release from the prisons. A comprehensive database has been developed at the national level on all aspects of these institutions what has been found to be of immense use to the prison authorities in planning various activities connected with the prison administration. The input forms have been reviewed and made more comprehensive in year 2000 to collect data on every aspect of prison activities. The below given the summary of the data of Prison Statistics in India 2012.  No Borstal school, Open jail and other jail existed in any of the UTs at the end of 2012.  The highest number of 80,311 inmates (around 77,148 male: 3,163 female) were reported from Uttar Pradesh (20.9%) followed by Madhya Pradesh 33,959 (32,778 male: 1,181 female), Bihar 28,550 (27,622 male: 928 female), Maharashtra 24,509 (23,171 male: 1,338 female) and Punjab 23,219 (21,944 male: 1,275 female) at the end of the year 2012.  Chhattisgarh reports illustrated the highest overcrowding in prisons (252.6%) and followed by Delhi (193.8%).  A total of 344 women convicts with their 382 children and 1,226 women under trials with the 1,397 children were lodged in the various prisons in the country at the end of 2012.  A total number of 4,470 inmates having mental illness out of 3, 38,135 inmates, accounting for 1.2% of the total inmates, were lodged in various jails during 2012. 381

 The Maximum numbers of 26,250 (25,406 male: 844 female) convicts were reported from Uttar Pradesh (20.5% of total convicts in the Country) followed by Madhya Pradesh 16,125 (15,631male: 494 female) accounting for 12.6% of the total convicts in India at the end of the year 2012.  Murder alone accounted for about 59.04% (64,949 out of 1, 10,001) of the total convicts under IPC Crimes. The highest percentage of the murder convicts was reported from Uttar Pradesh (17.6%) and followed by Madhya Pradesh (16.0%) of the total murder convicts at the end of 2012.  23.2% (1,624 out of 7,009) of the conviction related to the rape cases were reported from Uttar Pradesh.  The highest percentage of around (26.9%) (54,715 out of 2, 02,762) of under trials were charged with murder. Uttar Pradesh reports illustrated 15.7% of such under trials (8,595 out of 54,715) followed by Madhya Pradesh 4,746 (8.7%). 7.5.1 Detention Period (NCRB DATA)  Maximum number of under trials (37.7%) was detained for up to 3 months during the year 2012.  A total of 2,028 under trials (0.8% of total under trials) were detained in jails for more than 5 years at the end of the year 2012. Uttar Pradesh had the highest number of such under trials (324) followed by Punjab (317).  A total of 414 convicts including 13 females lodged into the different jails of the country were serving capital punishment at the end of the year 2012.  Around 69,133 convicts including 2,787 women accounting for 54.1% of the total convicts in the country were undergoing sentences for life imprisonment at the end of the year 2012. 382

 A total number of 97 prisoners were awarded capital punishment and capital punishment of 61 inmates was commuted to life imprisonment during 2012.  One inmate was executed in the country (in Maharashtra) during 2012.  A total of 14, 34,874 under trials were released, out of which 76,083 under trials were acquitted, 2,842 under trials were transferred to other States during the year 2012.  The total amount of 2, 20,542 convicts were released during the year 2012.  A total of 12,135 convicts were habitual offenders/recidivists which were accounted for 5.5% of the total convicts admitted during the year 2012.

CHART 7.1 SEX WISE PERCENTAGE DISTRIBUTION, UNDER TRIAL PRISON – 2012(NCRB)

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7.5.2 Inmates Particulars (data from NCRB)  Out of 1, 27,789 convicted inmates 1, 16,861 belong to same state, 8,445 inmates belong to other states and 2,483 inmates belong to the other countries.  Out of 1, 27,789 convicted inmates, majority of the inmates are either illiterate (37,255) or educated up to class X (58,014).  The highest number of graduate (1,218) and post graduate (398) convicts were reported from Uttar Pradesh at the end of the year 2012.  Out of 2, 54,857 under trials inmate, 76,626 were illiterates, 1, 10,385 were educated up to Class X, 49,871 having education of above Class X & below the graduation, 12,459 were graduates and 3,471 were post graduates persons.

CHART 7.2 EDUCATIONAL QUALIFICATION-WISE DISTRIBUTION – 2012(NCRB)

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7.5.3 Deaths in Jail(NCRB DATA) Death of a prisoner is always a matter of serious concern for prison administration. Sometimes such deaths lead to the “law and order” problems. Deaths in the jails have been broadly classified into the two categories i.e. natural deaths and the unnatural deaths. Unnatural deaths include the suicide, murder by the inmates, death due to firing, death due to negligence or excesses by jail personnel, etc.  A total number of 1,471 deaths were reported (1,345 natural and 126 un-natural) during the year 2012.  A total of 55 deaths of the female inmates were reported during the year of 2012, wherein 8 deaths were suicidal in nature reported during this year.

CHART 7.3 DEATHS OF INMATES – 2012(NCRB) 7.5.4 Number of convicts and under trial prisoners in different age groups The under trial prisoners formed a major share of prison inmates among various types of prisoners. The percentage of under trial and

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convicted prisoners to the total prisoners in various jails was reported as 66.2% and 33.2% respectively in India during the year 2012.  During 2012, 43,622 (34.1%) convicted prisoners were between the age 18 - 30 years, 62,135 (48.6%) convicts were between 30 - 50 years and 22,032 (17.2%) convicts were 50 years and above. No convicted prisoners are in the age group of 16-18 years was lodged in any jails of the country.  During the year 2012, 91 under trial prisoners were in the age group of 16-18 years, 1,17,984 (46.3%) in between 18 - 30 years, 1,06,191 (41.7%) under trials were in the age-group of 30 - 50 years and 30,591 (12.0%) under trials were 50 years or more.  Only 10 States/UTs reports have illustrated the lodging of civil prisoners. A total number of 95 convicted and 29 under-trial civil prisoners were reported during the year 2012.

CHART 7.4 NUMBERS OF CONVICTS BY THE PRISONERS(NCRB) 386

CHART 7.5 DISTRIBUTION OF CONVICTS – 2012(NCRB)

CHART 7.6 CONVICTED AND UNDERTRIAL PRISONERS – 2012 (NCRB) 387

CHART 7.7 AGE GROUP WISE DISTRIBUTION (INDIAN FEMALE INMATES) – 2012

CHART 7.8 AGE GROUP WISE DISTRIBUTION (FOREIGN FEMALE INMATES) – 2012(NCRB)

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7.5.5 Rate of Change of Convicts  The number of convicted prisoners have decreased marginally by 0.6% in the year 2012 (1, 27,789) over 2011 (1, 28,592).  Number of the persons convicted under murder charges decreased by 2.3% in year 2011 over 2010 and percentage change in 2012 (64949 convicts) was insignificant as compared to 2011 (64954 convicts).  Number of the persons convicted under the attempt to murder increased sharply by 23.2% in year 2011 and decreased sharply by 17.7% in the year 2012 over the respective previous year.  Number of the persons convicted under rape charges have been increased by 2.6% in year 2011 and marginally decreased by 0.3% in the year 2012 over respective previous year. 7.5.6 Training Training of prisoners in various vocational skills in the Prison Institution has received a lot of importance in almost all the States/UTs. These training programmes can provide the opportunities for the prison inmates to engage themselves in fruitful pursuits during the term of their sentence in jails. Training for prison inmates not only affords value for one’s work but also makes the prisoners learn the skills which would enable them to follow a vocation after their release from the jails. The training facilities available in the jails, that depends on the local conditions. The availability of the raw materials, local market needs, demands and the marketing of finished products mainly decide the vocational training facilities that is available in any jail premises.  A total number of 52,228 out of 3, 85,135 inmates were trained under the various vocational training in various jails during the year 2012. 389

 Likewise previous year, maximum number of training (6,249) was imparted in the weaving followed by tailoring (4,245), carpentry (4,208) and agriculture (3,095) during 2012.  The highest number of inmates trained in agriculture, carpentry, canning, tailoring, weaving, soap & phenyl making and handloom were reported in Madhya Pradesh (1,766), Gujarat (1,634), Assam (129), Delhi (986), Gujarat (1,772), West Bengal (164) and Madhya Pradesh (167) respectively during 2012.  Amongst the State/UT, around 81.4% (617 out of 734 lodged inmates) inmates have been provided with the vocational training in Chandigarh followed by Gujarat (49.5%) means (5,737 out of 11,585 lodged inmates), Tamil Nadu (46.3%) means (6,107 out of 13,195 lodged inmates) and Delhi (42.0%) means (5,084 out of 12,113 lodged inmates).

CHART 7.9 INMATES POPULATION VS NUMBER OF INMATES 2012(NCRB)

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7.5.7 Rate of Change of Under Trial Prisoners(NCRB data)  The number of under trial prisoners has increased by 5.7% in 2012 (2, 54,857) over 2011 (2, 41,200).  Number of under trial prisoners under murder charges decreased by 0.3% in 2011 and increased by 5.8% in the year 2012 over the respective previous year.  Number of under trial prisoners under attempt to murder charge increased by 3.0% in the year 2011 and 5.1% in 2012 over the respective previous year. 7.5.8 Prison administration and Earning by prison inmates(NCRB)  A total number of 35,044 jails inspections were done in country in which 51.7% of the jail inspections were done by the medical officials. However, 8,543 judicial officials and 3,559 executive officials were also been inspected the prisons during 2012.  The highest gross earning by producing goods by the inmates trained in the various vocational programs was reported from Delhi (2,885.0 lakh) followed by Bihar (1,708.6 lakh), Uttar Pradesh (1,456.1 lakh), Kerala (1,255.3 lakh), Tamil Nadu (1,156.0 lakh) and Maharashtra (1,143.1 lakh) during the year 2012.  The highest earning per inmate was reported from Delhi (23,817.4) followed by Chandigarh (21,812.0) and Kerala (18,069.7) as compared to All-India average of (3,329.9) during 2012.  The highest annual expenditure per inmate was reported from Delhi (` 83,343.5) followed by Nagaland (71,256.3), D&N Haveli (54,054.1) and Arunachal Pradesh (52,816.9) as against All-India average of (22,476.9) during the financial year 2012-13.

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7.5.9 Inmate population and strength of jail officials An important aspect of prison administration is the population of inmates that the authorities have to handle in the prisons. One thing that comes out strikingly with the based on the available data is that the jails are over-crowded. Data relating to the population of both male and female inmates are collected from the prison authorities in order to find the relationship in terms of the occupancy and overcrowding between the capacity available in prisons and the actual number of prison inmates. The occupancy in any jail changes on daily basis due to addition of new prisoners and the release of old ones, nevertheless, an estimate of the population of the inmates at the end of the year would serve as a good indicator to determine the occupancy rate.  The prisons have a staff strength of around 50,358 jail officials to take care of 3, 85,135 inmates which amounts to 1 Jail Official per 8 inmates.  The highest number of inmates per prison staff was reported from Jharkhand (20) followed by Bihar (17), Chhattisgarh (15), Uttar Pradesh & Uttarakhand (11 each) and Rajasthan & Gujarat (10 each).

CHART 7.10 INMATE POPULATIONs – 2012 (NCRB) 392

Hidden Facts  A total of 32,142 out of 1, 14,665 inmates from Tamil Nadu were taken out of the jail on remand & the other purpose. While maximum of the 37.0% (2, 56,939 out of 6, 95,134) inmates in Delhi were taken out of the jails for the medical attendance.  A total number of 489 inmates were escaped from the various prisons, wherein 123 inmates were reported escaped from the inside prison during 2012.  A total of 8 incidences of jail break and 160 clashes/group clashes were reported during the year 2012 in which 1 inmate was killed and 194 inmates were injured in such clashes.  Total numbers of 5,096 jail officials (1,090 Officers and 3,784 Staff) had attended the various training programs during the year 2012.  A total number of 1,631 were provided with the financial assistance on release; however 3,776 and 62,050 prisoners were also rehabilitated and provided with the legal aid respectively during the year 2012.  The State of Rajasthan, Jharkhand, Odisha, Tamil Nadu, Uttrakhand, West Bengal and UT of Chandigarh disposed off all the complaints (100.0% disposal) received through the National Human Right Commission (NHRC) during the year 2012.  A total of 36,459 inmates had been released on parole. However, 563 inmates were kept on observation as parole absconders out of which 201 parole absconders were re-arrested during 2012.  Amongst all the States/UTs, Pondicherry has provided highest wages of rs 170, 160 and 150 per day to skilled convicts, semi-skilled convicts and unskilled convicts during 2012. 393

Jails inspection and Visits The State Governments have framed rules regarding appointments and the visits by the official and non official visitors in exercise of the powers conferred by the sub-section 25 of section 59 of the Prisons Act 1894. The officers working as ex-officio visitors and the other non official visitors and their term etc. varies as per the jail manuals of different States/UTs, but following common features have been found in jail manuals of all States/UTs. The official and non official visitors of the jail should constitute a board of which the District Magistrate should be ex-officio chairman. The functions of the board of visitors shall be:i.

To visit the prison periodically;

ii.

To attend to request of inmates pertaining to their care and welfare;

iii.

To help the administration in correctional matters;

iv.

To enter any observations in the visitor’s book about their visit to the prison.

Ex-officio visitors: The following officers shall be ex-officio visitors of the prisons in their respective jurisdiction namely, District Magistrate, District and Sessions Judge Chief Judicial Magistrate, Director of the Health Services, Director of the Industries, Director of Agriculture, Director of the Textile industry, Executive Engineer, District Education Officer and the District Health Officer. Non-Official visitors: The State Governments should appoint the nonofficial visitors for every jail and such appointments made by the Government; it shall be notified in the State Government gazette. The members of the legislative assembly representing the concerned constituency, social workers and those interested in correctional works, 394

psychiatrists, psychologists etc. have been appointed as non-official visitors. Inspection of jail by the visitors and their remarks in the visitor’s minute books are aimed at the improvement of the conditions of the jails and toning up the efficiency and management of jails. The information regarding the inspections carried out in the jails have been compiled under three categories: Medical, Executive and Judicial. The details of such information received from the States and UTs are presented below: Inspections The total numbers of inspections by the medical authorities were observed as the highest (18,111 out of 35,044 inspections) followed by judicial (8,543) and executive (3,559) inspections. Andhra Pradesh has reported relatively large number of the inspections (5,484) by medical authorities during the calendar year 2012. Rajasthan (1,563), Haryana (1,858), Punjab (1,345), West Bengal (1,292) have also reported considerable number of inspections by the medical authorities. No inspection by the medical authorities was reported from Manipur, A & N Islands and Lakshadweep. West Bengal has reported the highest numbers of the routine inspections (550) by executive officers followed by Madhya Pradesh (347), Punjab (297), Uttar Pradesh (268) and Tripura (239). Andhra Pradesh, Sikkim and D&N Haveli have reported no such inspections 7.6

PRISON CONDITION OF TIHAR JAIL (2014) Tihar jail is one of the largest detention facilities in the world.

Hence, it is bound to have faced every problem a prison in India faces, including all mentioned in this thesis. But the Delhi Prisons Authority (DPA) has continuously ensured the adequate living conditions for all its

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prisoners by taking various reformative steps. Here the researcher will try to review what these steps are and how they were implemented to make Tihar jail what it is today. 7.6.1 Expansion Tihar jail is continuously expanding since its establishment in the Tihar village area of Delhi in 1958., till the year 1980, Tihar Jail consisted of one central jail with a sanctioned capacity of 1273 prisoners. This prison, around the mid of 1980s was trifurcated into Central Jail No. 1, 2 and 3 with the collective capacity of 1760 prisoners. In year 1980, another district jail was constructed in Tihar with a sanctioned capacity of 740 prisoners. This jail was elevated to the Central Jail No. 4 in the year of 1990. In the year of 1996, a special prison was constructed for adolescent prisoners between the ages of 18 to 21. This jail, Central Jail No. 5, had a capacity to lodge around 750 prisoners. In the year 2000, an exclusive women’s jail, Central Jail No. 6, was commissioned with a capacity to lodge around 400 female prisoners. Between 2003 and 2005, three Central Jails with a collective capacity of 1550 prisoners and one District Jail (at Rohini) with the capacity of 1050 prisoners were commissioned by the Delhi Prisons Authority. Presently, another jail under the Tihar Prisons Authority, known as the Mandoli Jail Complex, is being constructed. It has a definitive capacity to lodge as many as 3500 prisoners. The salient features of this Mandoli Jail Complex are:  The complex will house 6 Jails, in which one for convicts, one for first time offenders, and one each for long term under trials, adolescent, women and High Security prisoners.  There is Air Circulation System in the all wards.  There is No electrical fixtures inside the wards. 396

 Inbuilt mechanisms for Close Circuit Television (CCTV), Optical Fiber Cable Network.  Dual water supply system, R.O. System, Solar Heating System, Sewage Treatment Plant, Rain Water Harvesting.  Energy attentive buildings.  Provision of separate prison for High Security prisoners and the First Time Offenders to ensure total segregation. Therefore, the issues of overcrowding have been tackled by continuous expansion by the Tihar jail. It is a different story that even today; the actual population of the prisoners in Tihar jail is almost twice as much as the sanctioned capacity. 7.6.2 Special Courts Hon’ble Chief Justice of India (Retd.) Shri A.S Anand, rightly expressed his concerns regarding the increasing number of under trial prisoners lodged in the various jails of India. In order to curb this problem, the Delhi High Court directed the Lt. Chief Metropolitan Magistrate of Delhi to organize special courts in the Central Jail of Tihar for petty offenders and was willing to confess. The first special court in Tihar was organised in the May of 2000, and since then, as of December 2011, 130 such Courts have been organised in Tihar Complex on monthly basis and cases of around 5127 prisoners have been decided and disposed off, leading to a win-win situation for both, the under trials as well as prison authorities. 7.6.3 Semi Open Jail Tihar Jail has recently established a new wing in its Complex, Janakpuri, New Delhi which is known as the Semi Open Jail. This is the first of its kind in this country.

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The Semi Open Jail, along the lines of the concept of Open Jails, is being used to conserve the prisoners who have been sentenced to life and have less than 2 years of that sentence left to serve and have a good track record. The inmates of semi-open jails have a chance to step out of their cells and earn a wage fixed by government, though only within the 400 acre campus of the Tihar jail complex. They are allowed to work in PWD, horticulture and the other contract based jobs inside Tihar premises. They also run Tihar Canteen and Tihar haat, which are official outlets for selling the things which are produced in the factories of the Central Jail No. 2. This semi open jail, apart from further reducing the overcrowding in the Central Jails, provide such inmates with the opportunity to re-adjust into the society after such a long stay inside the prison cut off from the real world altogether. This is a major step towards their rehabilitation after the release, which could be helpful for them and their family as well by making them lead a relatively normal life once they are released from the prison 7.6.4 Free Legal Aid facility Government organizations like the Delhi Legal Service Authority (DLSA), National Legal Service Authority (NLSA) and the Delhi High Court Legal Services Committee (DHCLSC), along with many other NGOs, thrive to provide free legal aid to the prisoners of Tihar Jail, as mandated by Article 39 (A) of the Indian Constitution. The DLSA has set up a free legal aid and counselling centre in the Tihar Jail Complex to provide a free legal help to the poor inmates who are in need of it but can’t afford it. The following are the features of Legal Aid activities in the Jails:

398



A Free Legal Aid Cell is functioning in each jail in which the stationery items, typing materials, books, Photostat machines etc. have been provided by the Prison administration.



DLSA has about 30 advocates on its roll, who are regularly visiting the Legal Aid Cells of the Jail and giving the legal aid. They are also provided assistance by the advocates of the various NGOs.



DHCLSC has around 20 advocates on its roll for arguing the petitions/appeals of the prisoners.



Regular drafting of application/petition/appeal of the prisoner by advocates and Para Legal Aides formed by the legally literate prisoners is done. These Para Legal Aides are being given a regular training so that Legal Aid schemes may function most smoothly and its benefits may reach to the deserving prisoners.



The matter of release of the young prisoners, woman prisoners, sick, infirm or old aged inmates are taken up on the priority with the Courts.



Custody parole to the convicts on the occasion of the marriage, death, serious illness etc. is being routinely allowed by the Jail Superintendents.

7.6.5 Educational Facilities Tihar Jail Authorities provide the immense educational opportunities to the inmates during their stay. The curriculum is designed in such a way that even after their release, the prisoners can easily continue their education in the outside world and lead a better life. As the website of the Delhi government asserts that if an illiterate person landing in Tihar Jail can look forward to being literate, authorities help him if his stay is more than a week. The most important aspects of the education system in Tihar Jail is that the educated prisoners voluntarily teaches less educated or illiterate prisoners. 399

The educational activity in Tihar Jail are organized at the different levels for the different categories of the prisoners like illiterates, neoliterates, semi-literates, literates and for those desirous of getting higher education. There are study centers of Indira Gandhi National Open University (IGNOU) and National Institute of Open School (NIOS), from where a prisoner can pursue his studies and he is given certificate/degree for that course without mentioning the place of examination being a jail. Literate inmates are provided the training and then help the Prison administration in imparting the education to the other inmates. Special attention is also given to illiterate inmate so that he may be able to read and write his name within a week time. Advance educational avenues are available to the prisoners so that if they want to pursue higher studies then they may do so through IGNOU open schools etc. Special attention is also kept for the prisoners appearing for various competitive examinations. All the costs, including the fees, the stationary and anything a prisoner might need for the proper education, is borne by the Government. Ensuring the proper and adequate educations to the prisoners is a huge step towards the reformation. As it has been continuously observed, one of the major reasons for crimes throughout the world is lack of education and unemployment. Education helps the inmates to make themselves capable enough to work in the outside world on release and hence, they can lead a crime free life. Moreover, the education to the prisoners makes them more aware of their rights and the responsibilities. Hence, it ensures the miscellaneous welfare of the prisoners. As a part of the vocational training, the products being made inside the prisons are marketed outside. In fact, there is now a brand name “TJ” under which various products are being produced by Tihar inmates are sold, and revenue earned. There are Tihar Haats across Delhi which exclusively market such products and have a loyal band of consumers. 400

7.6.6 Campus Placements at Tihar The placement drive at Tihar was started in 2010 as a part of the rehabilitation program for the prisoners and to ensure a bright future and rehabilitation. In the year 2014, there was a record 100% placement of the Tihar inmates in various factories and companies on the basis of the vocational skills and certificates such inmates managed to earn during their stay in the Tihar Jail. 7.6.7 Recreational Facilities Various programs like the “Tihar Olympics” and the “Ethnic Tihar” ensure good light hearted recreational facilities for the inmates of the Tihar jail. Tihar Olympics is a winter sports festival organized in the Tihar jail consisting of sports like volleyball, cricket, basketball, kho kho, kabaddi, carom etc. The Ethnic Tihar on the other hand is held during spring season and consists of competitions like music, dance, painting etc. Eminent personalities from the field of sports and the culture are invited during these competitions to boost the morale of the prisoners. All Religious and National festivals are also being celebrated by one and all inside the prisons. On Republic Day and Independence Day, the National Flag is hoisted in all the prisons. All religious festivals like Holi, Diwali, EId, Guru Parv, X-mas etc. are celebrated by one and all. On Rakshbandhan Day, all sisters/ brothers are allowed to meet the inmates and tie Rakhies. Sweets are also prepared inside the prisons and sold to the visitors. According to the 2012 Annual Review of the Tihar Jail, a cricket academy has been established at Tihar in association with NGO Divya Jyoti Jagriti Sansthan to give quality training to those inmates who are interested in learning and playing cricket. For the same purpose Mr. Rajendra Pal, the coach of the famous cricketer Mr. Kapil Dev, had been invited and requested to select Tihar XI. The selected team is being coached to enable

401

them to play matches with the teams outside. This encourages the community participations in the reformation activities, which ultimately will help the prisoners in their rehabilitation. According to an article in IBN Live website (9th January 2013), recently Tihar Jail launched Tihar Idol, inspired by the successful musical reality show ‘Indian Idol’. About 350 contestants and many elimination rounds later, the winning bunch has now become the first worldwide to cut a commercial music album from inside a jail. All these not only help the prisoners to make a creative use of their leisure time inside the prison, but also help them to recognize their talents and encourage them to pursue same, once they are released from the prison, hence reforming them into better human beings. 7.6.8 Medical Facilities The medical care inside the Tihar jail is managed by experienced medical and para medical staff from the Delhi Government Health Services. The prison authorities thrive to provide round the clock medical care, and also refer the prisoners to specialty and super specialty hospitals if required. The basic features of the medical care in Tihar jail are:  150 bedded Hospital with Medical, Surgical, Tuberculosis, Psychiatric Wards, round the clock casualty services.  A minor Operation Theatre in Central Jail Hospital.  Round the clock Dispensary with the Medical Observation Room facilities in all Jails headed by Senior Medical Officers.  Special treatments and special diets to the old and sick prisoners.  ICTC Centre at the Central Jail Hospital.  OST Programmes is being initiated in DAC.  Regular Health check-up Camps is also arranged by the Jail Doctors and NGOs.

402

In 2007, a drug de-addiction centre was also established in the Tihar jail. It is noticed that most of these drug addicts are repeaters and are arrested for the petty offences, with most being vagabonds or jhuggi dwellers working as laborers / rickshaw pullers / truck drivers etc. In the most cases, the crimes are being committed by drug addicts to meet their requirement of drugs, the addiction for which is chronic in most cases. The de-addiction centre is well equipped to handle such chronic cases with the empathy and compassion, and has shown encouraging results. Vocational classes in English/Hindi typing and Commercial Arts are conducted by the Directorate of Training & Technical Education and certificates are issued to successful students. For spreading the Gandhian Philosophy, a Gandhi Centre has been established by Gandhi Smriti and Darshan Samiti, Government of India at IGNOU ward. More than 500 books on Gandhian philosophy have been added to the library. Some of the inmates who joined the path of ’Reformation through Education' have been successfully rehabilitated. Expenditure on fees for IGNOU/NIOS courses is borne by the Government of India. Study material like notebooks, pens etc. is also being provided for free of cost to inmate students. Many dignitaries including Chief Minister, Ministers, Director/Inspector General of various prisons, Judges, Vice-Chancellor of IGNOU, Chairman NHRC, Media persons and NGOs of International organizations had visited the centers during last one year and have appreciated the efforts of jail administration 7.7

PRISON CONDITIONS IN STATE OF GUJRAT As we know the prison are meant to confine the offenders and keep

the prisoners in safe custody. Home Department of Gujarat Government is responsible for management and administration of prison and reformations of prisoners. till 1 st November, 2013, the occupancy rate of Gujarat jails is

403

93.02%, or overcrowding rate of the prison -6.97%. Going by the individual figures, jails of 17 states and UTs in the country are overcrowded. This problem arises due to heavy inflow of the prisoners against the limited accommodation capacity and has been long standing, not only in India, but also in some western countries. Implications of such a situation are the rough hygiene conditions in the jail premises, additional burden on the staff, and chances of mismanagement, etc.Gujarat is better off in all such respect, thanks to effective steps taken by the central jail authorities in the last couple of years. Not just prisoners, but even jail staff members are finding the ‘work place’ far more manageable. As per the figures from the state prisons department, jail overcrowding ratio in the state now runs in negative. Against the given combined capacity of 12,318 inmates, the 26 jails in state have 11,459 inmates at present, indicating an overcrowding rate of 6.97%.We know negative ratio is based on the cumulative total of all the 26 prisons, not every jail is technically ‘under-crowded’. As per central authority figures, as many as 14 jails of the state are under crowded and have negative rate of occupancy. The remaining 12 are either more or less overcrowded. However, even this is good news as the overcrowding has gone down in these jails.For this we can consider the statistics of the crime 2012 in Gujarat and Delhi. Summary of the statistics of crime 2012 in Gujarat and Delhi: Considering the Cities of Gujarat : As we know the population of Ahmadabad is around 65 lakhs, the rate of total crimes is “178.7” in Ahmadabad city. But in Surat, as its population is around 56 lakh, yet it is far criminal based city, crime rate is quite high “533.7”. While in Delhi it is quite better than Gujarat. Delhi having the population around 163 lakh but the incidents happened is only little above

404

the 5000, its rate in crime is 31.9 only.Among these is Ahmadabad central prison, which is still overcrowded by 1.89%. Against the authorized capacity of 2,586, the central jail houses 2,635 inmates, including convicts, under-trials and detainees. However, against the 40% figure 10 years ago, this seems definitely much better. Similarly, In Vadodara, the central prison shows 38% overcrowding, down from almost 90% during 2002.As per the figures illustrate, three of the most under-crowded prisons include Amreli open jail with “-77.5%”, Rajpipla sub-jail with “-64.89%” and the newly inaugurated Patan sub-jail with “-58.91%”.Junagadh district prison with “66.04%”, Surendranagar sub-jail with “60%” and Vadodara central prison with the “38.87%” overcrowding are among the most overcrowded ones. Percentage of overcrowding has gradually come down due to increase in authorized capacity by constructions of Gondal Sub Jail, Palara special Jail, Amreli Sub Jail, New Undertrial Jail at Ahmadabad, Addl. Under trial jail at Rajkot, Female Section at Ahmadabad Central Jail, upgradation of Palanpur & Mehsana Sub Jails into District Jails and construction of 81 additional barracks. Gujarat state has initiated steps to reduce the overcrowding that has been appreciated by Nation Human Rights commission in 2008-09. Overcrowding percentage of about 220.86 was the highest in the Surat District prison among all the Gujarat Prisons, with the total of 1123 prisoners as on 01/02/2012. With the newly constructed Lajpore Central Prison being inaugurated, overcrowding at Surat Prison has been converted to the under-crowding for the first time. Thus, solving the constant problem of over-crowding in Surat. Prison thereby satisfying criteria of 20 prisoners per barrack, as specified in the Human Rights of the Prisoners and space requirement thereof is concerned.

405

FIGURE 7.1 SECURITY THROUGH ELECTRIC WIRES IN CENTRAL PRISON Newly constructed Lajpore Central Prison, Surat with 742 cameras installed inside every barracks and positioned in such a way that almost all the area can be monitored from the control room with other 64 PTZ (Pan, Tilt and Zoom) installed in the external areas to monitor all outside activities of every person and also surrounding of the jail premises especially entry and exit points. Thus, the Video Surveillance / Electronics Security Surveillance System is the first of its kind in Indian Jails and with the largest number of 806 CCTV cameras installed makes Lajpore Central Prison, Surat as one of the most Hitech Electronic Surveillance covered Central Prison in India. The CCTV Surveillance systems have complete operating software installed in the main server which has storage / recorder device with one week recording capacity designed in the device. After one week, the old storage could be taken in the back-up hard disk manually and kept in the custody for record purpose. CCTV system has one control rack installed in each building and that control rack is being connected to the 406

centralized control room located in the administration building. Fiber optic cable laid into the prison is also planned for cable TV and telephone networking. All the control rack is connected with the control room via IP base telephone in a way that connected directly to the control room and any information can be shared directly to the concerned building. Lajpore Central Prison, Surat is the first Central Prison where during the night time, entire area will be covered under 13 electric high mast poles with five watch towers. Central Jail has been provided with the Supply of 500 KVA electricity. To prevent any power outage / breakdown, 2 heavy duty electric generators with capacity of 250 KVA has also been installed as a backup. Entire outer peripheral with the high voltage D.C. live wires which has a unique feature of non-fatality system, with the foolproof system deterrence against the tampering or intrusion built into it. Lajpore Central Prison hospital with 48 beds is fully equipped with the x-ray machines, Sonography machine, ECG machine etc. Lajpore Central Prison, Surat has special facility for SRP barracks, shopping complex in the residential area with the IOC petrol pump coming up on the pattern of the private public partnership whose income / profits will go to prisoners and jail staff welfare fund. 7.7.1 New Initiative related to Prison systems of Gujarat As far as Gujarat State is concerned, following facilities are extended to Prison Personnel for their well being:  Scheme of Group Accident Insurance covering the risks of the prison personnel has been introduced with effect from 30th April, 2011. Prison officials would be compensated in cases of accidental death, permanent disability or partial disability. Members of guarding staff would be paid Rs. 4, 00,000/- as the compensation & other staff members will be paid Rs.5, 00,000/- as compensation.

407

 Amul parlour has been started within jail premises & one percent of the profit of this parlour is given to the prison department out of which only 50% is deposited to Staff Welfare Fund 50% is deposited to Prisoners’ Welfare Fund. Rs. 20, 55,641/- has been deposited so far. Income of rent of cricket ground at Ahmadabad Central Prison has comes to Rs. 1.91 lacs so far.  Staff Welfare Fund is being maintained under which all the loans are given, prizes are given to scholars and Rs. 10,000/- are paid in the case of the death of staff member during their services. Loan of Rs. 13, 90,000/- has been sanctioned to prison personnel for the year 2011-12. Rs. 35,605/- have been paid as a prize to scholars of jail staff. Rs. 30,000/- has been paid as the financial assistance to the families of deceased. An amount, Rs. 47,000/- has been written off being outstanding the dues against loans sanctioned to prison officials who died during service. Large number of Officers numbering 31 in the year 2010, 141 in the year 2011/12 upto now, were sent for various training programmes, namely Vertical Interaction Course, Prison Management Course, Personality Development Course, Human Rights in Prison Management, RTI Act – 2005, Best Prison Practices, Disaster Management, Positive Attitude, Stress Management Course etc. Prominent Institutes where officers / staff were sent for these trainings were Sardar Patel Insititute for Public Administration, Ahmedabad, APCA, Vellore, Brhma Kumari Ishwariya Vishwa Vidhyalaya, Mt.Abu, Jail Officer Training College, Pune, Indian Law Institute, New Delhi, Indian Institute of Foreign Trade, New Delhi, Gujarat National Law University, Gandhinagar, IIM, Ahmedabad, Institute of Correctional Administration,

Chandigarh,

National

Institute of

Criminology & Forensic Science, SVP, National Police Academy, Hyderabad, New Delhi, NCRB, New Delhi. 408

For the better care of prisoners and make economic better, a new system has been developed in the prison system of Gujarat that is “Video conferencing”. Hence Gujarat has become the 2nd State of India introducing video conferencing system to the prison. This video conferencing system has been added between Ahmadabad Central Prison and Bhadra Court Complex. The whole system is maintained by the employees of Sabarmati Central Jail & Bhadra Court. Its objective is to: (1) Become most economical way for saving Government Expenses on Police escorting & Transportation, (2) minimize the scope of escapes of the prisoners from the prison, (3) Minimize unauthorized communication and smuggling of contraband /prohibited articles and (4) Ensures maintenance of Prisoner’s dignity as they are not unnecessarily taken to courts and made to wait at courts only for taking remand extension. This system installed in the prison has many benefits. Such as since 2005 many hearings have been done through this system and much amount of money have been saved since 2005 when installed. Gujarat Prisons with the help of leading NGO has undertaken campaign to create awareness about prisoners’ constitutional and legal rights. Workshops have been organized to make available the rights of bail under section 436-A of Cr.P.C. as well as Plea-bargaining under Section 265(A) to (L). 3211 undertrial prisoners have been released so far. Legal services of students of National Law University, Gandhinagar is made available to the prisoners of Ahmedabad/ Vadodara Central Prison. Permanent Legal Aid Cell has been started with cooperation of Nirma Law University at Ahmadabad Central Prison to create awareness of prisoners’ rights. Telephone booth facility at Ahmadabad Central Jail for prisoners made operational from the year 2011. Legal Aid Clinics run by Law Universities and Law Colleges in Gujarat have been established in the every 409

Jail to create the awareness about the Legal Rights of the prisoners by State Legal

Services

Authority.

Honorable

Gujarat

High

Court

has

operationalized the software for online submission of bail petitions of prisoners linking with the jails. This system will facilitate the prisoners as well as Hon’ble High Court for speedy disposal of the bail applications of the prisoners. This kind of project is being undertaken for the first time in India, by any Hon’ble High Court. Education facilities have also been added in the prison system since it has been seen that the literacy rate in Gujarat prison is as less as imagined. Out of 16,327 illiterate prisoners, 15,530 prisoners have been literate during the literacy campaign. 109 prisoners appeared in Diploma examination on Gandhivichar organized by Gujarat Vidhyapeeth. Long distance education through BAOU, IGNOU, Annamali University Study centres of Dr. Baba Saheb Ambedakar Open University were functional at only Ahmedabad/ Vadodara Central Prison & Junagadh District Jail before 2010. Now study centres of Dr. Baba Saheb Ambedakar Open University has been started at every Jails since 2011, covering all jails even sub Jails. Before 2010 on an average 16 to 60 prisoners were enrolled in various courses of Dr. Baba Saheb Ambedakar Open University but during the year 2010, 2011and 2012 this figure has touched to 244, 3794 and 1298 respectively. Before 2010 the study centres of Indira Gandhi National Open University was functional at Ahmedabad Central Prison & now this enter has been also started at Vadodara Central Prison. Before 2010 average number of prisoners enrolled in Indira Gandhi National Open University were 20 to 38 per year which has been increased up to 56, 321 and 531 for the year 2010, 2011 and 2012 respectively. The reach of Indira Gandhi National Open University is being expanded up to all the District Jails of Gujarat State by establishing study centres. Before 2010 above both the universities were charging the fees from the prisoners but after 2010 both the universities are providing education at free of cost to the prisoners. Before 2010 female prisoners 410

were not enrolled in these Universities but since year 2011 for the first time in all 189 female prisoners have been enrolled in various courses. Aganwadi institution have been started for the innocent children living with their mothers in Ahmadabad / Vadodara Central Prison with help of a reputed NGO. Primary School has been started for the children of female prisoners at Ahmadabad/ Vadodara Central Prison by a reputed NGO. A leading NGO appointed fully trained lady teachers and music teachers for female sections of Ahmadabad Central Prison and Vadodara Central Prison to educate illiterate woman. During the year 2011, 56 prisoners have passed the Diploma in Value Education and Spirituality Course and for the first time in India convocation was organized inside the Ahmadabad Central prison to award the Degrees to successful prisoner-students.  59 Prisoners have joined in Diploma in Value Education and Spirituality Courses for the Year 2012.  32 prisoners have joined in M.Sc. in Value Education and Spirituality Course for the Year 2012.  16 prisoners have joined in P.G. Diploma in Value Education and Spirituality Course for the Year 2012.

NCRB-DATA FIGURE 7.5 EDUCATIONAL GROWTHS IN PRISON IN GUJARAT 411

By adding the educative environment to the Prison System, the prison climate/environment can be improved even much better. By adding education facility to the prisoners, the environments of the Gujarat Prisons have been bitterly improved as per figure says:

FIGURE 7.2 SPORTS FACILITIES IN PRISON In the Gujarat Prison, books, library and other facilities for education have also been introduced. In response to our appeal for donating books and magazines for libraries of jails, made to various prominent Institutes/ individuals, jail libraries were enriched with 77,131 books and 11,480 magazines up to June 2012, from 29,962 books and 1,706 magazines, as on 01/05/2010. A quarterly magazine titled as “Kasturbani Kotdiathi” is being published for female prisoners. `Hriday Manthan’ a quarterly magazines for prisoners is being regularly published. With financial backing from Gujarat Sahitya Academy, a poem book titled as “Karagruh ma Kalarav” containing poems of prisoners was launched by Hon’ble Jail Minister.

412

Computer facilities are also being imparted to the jail system for enhancing the computer literacy among the prisoners. As we can see through the following examples:  A digital computer language lab donated by Dr. Baba Saheb Ambedakar Open University, with 24 computers and with trainers has been established at Ahmadabad central Prison.  In all 177 computers have been received by donation from various NGOs, Corporate Bodies, and prisoners are now being imparted Computer Literacy training at almost all the jails. The vocational training facilities such as weaving, textile, carpentry etc. have also been imparted to the system because of increasing the opportunities to get job after when they get out of the jail and can live a better life. 7.8

PRISON SYSTEM AND REFORMATIVE TECHNIQUES IN STATE OF RAJASTHAN

7.8.1 Human Right at Prison in Rajasthan Rajasthan Prisons Department has always been ahead in correctional services for prisoners. The department provides services and programs to address prisoner needs, structured use of leisure, and facilitate the successful reintegration of prisoners into society. Upon arrival at jail, a convict prisoner is screened by staff from the case management, medical & mental health units. Later, a prisoner is assigned tasks where he or she receives a formal orientation to the programs, services aimed at learning vocational skill. Researcher noticed that participation in a variety of programs that teach marketable skills helps to reduce recidivism. Additionally, institutional misconduct can be significantly reduced through programs that emphasize personal responsibility, respect, and tolerance of others.

413

The prison department offers a wide variety of program aimed at vocational training, formal and moral education and sports and recreational facilities. Educated prisoners teach illiterate prisoners in prisons barracks so that illiterate may acquire basic minimum knowledge of words and figures. Those who want to take up or continue higher studies are given facility to prepare and fee is also paid through Prisoners Welfare Fund or NGO's. Rajasthan Prisons achieved landmark in the history of prisons when ITI & study centre of IGNOU were established at Central Prison Jaipur. Prisoners take up the courses of plumber, electrician, and like trades. Today IGNOU study centers running at central jail jaipur, jodhpur, udaipur, kota, ajmer, bharatpur, bikaner, sri ganganagar, and distt. jails alwar, bhilwara, jhalawar and women reformatory jaipur. The Administration of prisons is accorded utmost priority by Government. Concerted efforts are taken to improve the all round welfare measures of prisoners and basic infrastructure facilities. The principles of correctional administration are imbibed by Prison Department so as to provide for reformation and rehabilitation in the system Rajasthan Jails Administration has undertaken exhaustive vocational skill development programmes for convicted inmates which can go a long way in rehabilitating them after their release. The Human Rights of prisoners are taken care of by providing wholesome living conditions with sufficient accommodation, ventilation, food facilities, potable drinking water, better diet, medical and sanitation facilities, interview and communication facilities, entertainment, free legal aid etc. The staff is also provided sufficient training in Human Rights so as to alter their attitude towards the Prisoners. Vocational training in various trades is provided to convicted inmates in nine jails of the state. These trades are making durries, niwar, cloth 414

dyeing, carpentry, iron-smithy, stitching, hosiery cloth manufacturing, etc. Power looms have been installed for manufacturing cloth in jails. Convicted inmates learn various trade skills in the Jail Factories at various Central Jails. These programmes have not only resulted in learning a trade but also provided monetary gains to jail inmates. The Social Justice & Empowerment Department of Rajasthan Government provides assistance to released offenders for their post-release rehabilitation. Wages are paid to inmates for the work against labour done in jail factories. Training in simple trades As the object of vocational training to the inmates is their reformation and rehabilitation, training in simple industrial trades like wireman, fitter, carpenter, diesel mechanic, cutting & sewing are conducted and inmates are given certificates by ITI to enable them to seek employment after release. Vocational Training Apart from Industrial Training, the inmates are given training in the following simple trades also by the Government as well as NGOs for their rehabilitation: (1) Making durries & niwar; (2) Stitching & dyeing cloth; (3) Carpentry; (4) Iron-smithy & Desert Coolers; (5) Iron furniture; and (6) Hosiery cloth manufacturing. All eight Central Jails and District Jail Alwar have Jail Factories where training and employment is being given to approximately 5000 convicts at any given time. The department aims at employing all the convicts in the Jail factories. These factories activities not only provide financial support to inmates but also act as a training and rehabilitation institution and help the administration in maintaining peace in the Jail.

415

The various works being undertaken in different sections of the Jail Factory are:7.8.2 Weaving Section This section manufacture cloth (White), carpets, convicts Chaddar, Woollen Chaddar, Fine Chaddar, Dasuti Cloth/Khesla, Handloom durries, and Dusters. Installation of new power-loom machines has not only augmented the production capacity of the section, but has also created a training ground for convicts working on these machines. Apart from meeting internal requirements of the Jail, the department has been privileged to secure orders from various departments of the Government of Rajasthan and from the private sector. Hosiery cloth for making vests is also manufactured in powerlooms of jail factories. 7.8.2 Carpentry Section This section is instrumental in supply of Desks/Tables & Chairs to various schools and other governmental offices in the state of Rajasthan and public at large. Ironsmithy This section manufacture & supply desert coolers, steel Almeria, steel racks and iron furniture to various schools and other governmental offices in the state of Rajasthan and public at large. Goods worth 1.06 Cr. were produced in the jail factory during year 2013-14. 7.8.3 Sports and Recreational Facilities Researcher was informed that In all the prisons, facilities of games & sports like volleyball, kho-kho, kabbaddi, chess, carom etc. for inmates have been created. Prisoner's participation in games and sports activities within the prisons took a big jump with periodical organization of interprison competitions. Intra prison cultural meets at Central Prisons are held 416

during every year in which competitions in music, dance, sher-o-shairi, quawwali, painting, quiz etc. are organized for prisoners. Eminent public personalities are invited on these occasions to encourage the prisoners to take part in the sports and cultural events, to foster their physical, mental and cultural development and inculcate discipline. Various newspapers, books and magazines are provided to inmates for their knowledge gain. TV, radio-sets, cassette players are also provided for their entertainment. Competitions in debate, singing, dance & drama, sports & games, etc are regularly organized at district and state level. All Religious and National festivals are celebrated by one and all inside the prisons. On Republic Day and Independence Day National Flag is hoisted at all prisons. All religious festivals like Holi, Diwali, Id, Guruparv, X-mas etc. are celebrated by one and all. On Raksha-Bandhan Day sisters are allowed to meet their prisoner brothers to tie Rakhies. Similarly, on occasion of Id lady members of prisoners’ family are allowed to meet them. 7.8.4 Yoga and Meditation Researcher noticed remarkable activities in prison for example cleansing and disciplining mind, Yoga and meditation classes are run with the help of various voluntary organizations. Staff members are also encouraged to attend meditation courses. Organizations like Brahma Kumari Ishwariya Vishvavidyalaya, Divya Jyoti Jagriti Sansthan, Sahaj Yoga Kendra, Art of Living, etc have been imparting moral education, counseling and techniques of meditation to the prisoners. This has helped many prisoners in changing the whole approach to life. 7.8.5 Prisoners Welfare Programme Prison officers cater to the welfare of the prisoners. Women prisoners can keep their children up to the age of 4 years with them in prisons. 417

Crèches have been established in prisons for benefit of children of women inmates. Yoga and Meditation classes are conducted regularly by various non-governmental organizations. Films of moral and educative value are also shown. Radio and TV Sets have been provided in blocks for the entertainment of prisoners. Music and games are also provided for the recreation of the Prisoners. 7.8.6 Parole Researcher was further informed that Parole is granted to the eligible convicted prisoners for encouraging in them the spirit of discipline and good conduct. Parole is granted to the convicts who have completed one fourth of their substantive sentence including remission. There is no restriction on a convict about the number of times he can apply for parole. Emergent parole is generally granted on the grounds of critical sickness, death, marriage of blood relations mentioned in the rules, property destruction any other sufficient reasons. Regular parole is granted by the District Parole Advisory Committee. Emergent parole up to seven days is granted by the Superintendent of Prison while emergent parole of up to 15 days is granted by the District Magistrate and DG&IG Prisons. The period of regular parole is counted towards the total sentence of a prisoner. A provision of 45 days parole has been made by the state government for pregnant woman convict at the time of child delivery. 7.8.7 Premature release of prisoners The purpose of releasing prisoners prematurely is to give them chance for rehabilitation in the society. It is given to the prisoners those who have behaved exceedingly well during the period of sentence and have served sufficient deterrent period of their sentence. There is provision of premature release from prison for those convicts who bear exemplary good 418

conduct. Advisory Boards have been constituted under Rajasthan Prisoners (Shortening of Sentences) Rules, 2006 to make recommendation to the state government for premature release of eligible prisoners. After considering the recommendations of Advisory Boards, the State Government decides to release or not to release the prisoners prematurely. 7.8.8 Periodical Review of cases of under Trial Prisoners According to jail staff A committee under chairmanship of Chief Judicial Magistrate has been constituted in every district of the state for periodically reviewing the case of undertrial prisoners. The committee meets every month to review cases of prisoners who are in jail over a long period and suggest measures for timely disposal of their cases. 7.8.9 System of meeting Each prisoner is allowed to hold periodical interviews with his relations/friends. An undertrial prisoner is allowed weekly interviews while a convicted prisoner is allowed fortnightly interviews. The interviews are permitted in the "Interview Gallery" of a prison. The duration of each interview is 45 minutes. Each prisoner is normally permitted three visitors per interview. During the interview, a prisoner is allowed to receive nonprohibited edibles and clothes. In addition, prisoners are entitled for interviews with legal advisor on working days. Facilities Jail canteens have been started at all central and district jails with a limit of Rs.1400 per month purchases of goods from their deposits Telephone/P.C.O. facilities is available for prisoner at central jail jaipur, ajmer, and women reformatory jaipur. work-order has been placed to established. This facility at central jail kota, bharatpur, udaipur, bilakner and sri ganganagar. 419

7.8.10 Visitors to Prison There is a Board of visitors comprising official and non official visitors for each Prison. While, non-official visitors are appointed by the state government, the official visitors are as mentioned in Rajasthan Prison Manual. The visitors can visit the prison periodically and see that the prisoners are treated in accordance with the rules and their security is ensured. 7.8.11 Ventilation of grievances Any prisoner or citizen can make verbal/written complaints to the Officer-in-charge of Prison and immediate remedial steps are taken. The prisoners can ventilate their grievances through the sealed complaint Boxes which are kept in conspicuous places with easy accessibility to prisoners. These complaint boxes are opened by the District Sessions Judge and appropriate action taken on the complaints deposited by the prisoners. Separate complaint boxes are also provided by Prison Authorities to receive complaints from prisoners and public at large. Prison Superintendent, Deputy Superintendent and other senior officers have frequent meetings with the prisoners where prisoner grievances are listened carefully and solutions provided. Grievance Headquarters.

Redressal

Cell has

been

established

Complaints

regarding

dissatisfaction

at

Prison

with

prison

administration can also be addressed to DG, Addl DG and DIG Prisons. Addl. Director General of Prisons is also the Chief Vigilance Officer of the department. 7.8.12 Prisoners’ Welfare Fund Prisoners’ Welfare Fund has been constituted for welfare and benefit of prisoners. It is used for remitting examination fee of prisoners, buying 420

text books, stationery, sports articles, organizing sports & cultural programmes and meditation camps and celebrating festivals in prisons and to provide spectacles for reading to prisoners on medical advice. 7.8.13 Prison Band Prisoners’ Band groups have been formed at Central Prison Jaipur, Jodhpur, Udaipur, Ajmer, Bikaner and Kota. Prisoners are given training in playing band instruments. These bands are sent on private functions against fixed charges. Half of the income generated by prisoners’ band is distributed to the prisoners working in band and the other half is spent on maintenance of the band. 7.8.14 Treatment of Women Prisoners There are two separate Women Reformatories in the state at Jaipur and Jodhpur which are exclusively administered by women staff. Woman prisoners are provided with all facilities that are available to male prisoners. They are also given training in vocational trades. Women Prisoners’ children of age up to 4 years are admitted. Nursery & crèche have been established in Women Reformatories. Diet Researcher was informed that Nutritious food prepared under hygienic conditions is supplied to the prisoners as per the scale prescribed in Rajasthan Prisons Rules. Items like milk, bread, egg etc, are given to the prisoners as medical diet to the sick prisoners on the recommendation of the Prison Medical officer. Stainless steel plates, bowls and mugs are provided to prisoners for their personal use. Stainless Steel cooking vessels are used in prisons to cook food. Food from outside is not permitted. Special diet is also given to prisoners four times in a year on festive occasions. 421

7.9

A REPORT ON BEST PRISON PRACTICES INDIA REPORT ON

THE

NATIONAL

CONSULTATION

ON

PRISON

REFORM - HUMAN RIGHTS Use of Technology in Prisons CCTVs have been installed for maintaining security and prison management in Tihar, Delhi ,Tamil Nadu prisons. Health and Medical Facilities Drug de-addiction Centre – Delhi is a good example; hospital for women and men with HIV – West Bengal; Intake Screening Examination – Tamil Nadu.  Educational and Vocational Training Introducing the following educational and vocational training courses:  IGNOU;  National Open School;  Computer Centre;  Engineering, MBA, DCA;  Carpentry;  Bakery;  Pottery;  Shoe-making;  Sculpture making;  Soap and phenyl making. Delhi Prisons Act, 2000 The Act is based on the principle of preserving the “right to life” and that prisoners still have all of their rights, except those taken away by virtue of incarceration.

422

The Act thus mandates:  Safe and secure custody of prison inmates;  Reformation and Rehabilitation of inmates;  Basic minimum facilities to inmates to maintain their human dignity. Mr. Gupta explained that the Act primarily aimed at the reformation and rehabilitation. It also provides for Welfare Officer. There was not such provision earlier and the post of the Welfare Officer did not exist under the Prisons Act 1894. As per the Act, healthcare for the prisoners starts at the moment of the admission or entry. This has the advantage of discovering the health problems proactively and making preventive care much easier. Women and Women with Children in Prisons or Children in Prisons According to Dr. Sarita Sarangi, Member, Delhi Commission for Protection of Child Rights, stated that a person in prison does not lose his identity and selfhood on account of being locked up in a prison, and is therefore entitled to all the human rights within the context of imprisonment. There is not any justification in aggravating the suffering already inherent in the process of the incarceration. The aim should be of prisoner rehabilitation in the light of the Supreme Court ruling – in the case The Upadhyay judgment contained the specific guidelines, based on the various committee recommendations, about how children should be cared for in prisons. Quoting the National Crime Record Bureau data, she said that the women constitute 4.1%, as compared to 2.6% in year 1980, of India’s total prison population (NCRB, 2007). There are, however, only 12 states that have prisons exclusively for the women prisoners. There is a need for the separate prisons for women prisoners. Likewise, the undertrials should be kept apart from the convicts; adolescents from hardened criminals; first time offenders from the habitual offenders. For women, 423

there should also be an effort to separate the prostitutes and procuresses from others. BPRD’s Model Prison Manual has many provisions relating to women, but few of them have been adopted. Many of the historical rules, on women, have to do with their role in the society and the family and these needs to be thoroughly examined. Women tend to feel the impact of being imprisoned, that much more acutely than men do. This is, in part, because of the greater stigma attached to women in prisons and, in part, because of the lack of the social support and the psychological stress of being separated from the family and children. Prisons can cause the major damage and disruption to the lives of the vulnerable women and their families. Most of them are in prison for non violent offences and pose no risk to the public. Therefore, the consideration should be given to the development and implementation of non-custodial strategies for the women, particularly during pregnancy, or when they have young children. There needs to be an emphasis on the non custodial solutions, especially on the probations. Gender-sensitive legislative frameworks, the penal policies and prison rules are necessary to ensure that the needs of women in the prisons are addressed in a systematic and sustainable way. Prisons need to be about the corrections, the reformation and rehabilitation, she stated. The only lasting solution includes the involvement of the NGOs and the civil society organizations. Women face a lot of difficulties in the prisons − from bad infrastructure to overcrowding as well. Jails are teeming with the prisoners. Taking an example, over two hundred prisoners have been accommodated where there is capacity of only hundred. Basic facilities like electricity, or fans in rooms, or clean bathrooms and toilets − have not been provided. Kota jail has no any bathroom. There are no proper medical facilities for women and there are no gynecologists. 60-70% of women need counseling but there are no counselors.

424

Further, all kinds of the convicts are kept together. Women, in the tribal areas, face even a greater discrimination. They are usually implicated on the false charges. At the times, the police take women family members into custody when male culprits are missing. Families, of women prisoners, have to travel a long distance as they are kept in far away the cells; in some jails men and women are kept together like in Chhattisgarh, since there are no separate prisons for women. There is only one open air prison for the women prisoners in Pune. Children, of the women prisoners, and juveniles, in conflict with the law, are often mistreated in the prisons. In Punjab, children, of the prisoners, get less than two spoons of the milk powder a day. There are no nurseries or playgrounds for children in the prisons. Children, of prisoners, are allowed to visit their parents in the prison but there are no facilities for them. 7.10

IMPROVING THE PRISONERS AND PRISON SYSTEM i.e. REFORMATIONS Mr. Colin Gonsalves, Senior Advocate and Founder Director, HRLN

article from Human Rights Law Network (HRLN) observed that prisoners’ rights are in a perilous phase because the Government has adopted a largely uncaring position over last decade. It seems that no one in the Judiciary cares about prisoners any more. Most judges feel that the prisoners are subhuman people who deserve to be imprisoned. In Jharkhand, the Government was going to release 7 lakh tribal, most of whom had been arrested for the petty crimes like those of stealing wood from a forest. If 7 lakh people have been arrested for only the petty crimes in Jharkhand alone, there must be millions of people in a similar situation across the country as well. Law Minister Moily recently have announced a scheme to release a large number of under trials, but no one has seen it happen yet. No one 425

knows how it would happen, or if it will ever happen at all. Some people have argued that the poor people want to be in prison, that in prison they would at least get food and shelter. Even if in the rare cases, where it found to be true, it shows what is wrong with our society today, he remarked. Mr. Gonsalves, speaking on the role of the Judiciary in improving the conditions of prisons and the prisoners in India, spoke about some of the landmark judgments of High Courts and Supreme Court where the courts have upheld and protected the rights of prisoners. 7.11

REFORMATION AND REHABILITATIONS Mr. Johnson Edayaranmula ibid, the Director, ADIC Alcohol & Drug

Information Centre (ADIC)-India India, said that the reformation and rehabilitation are, perhaps, the most successful harm-reduction strategies. By rehabilitating one person means we can prevent another 25 people from choosing the path of crime. In the correctional administration scenario, the reformation and rehabilitation is of the utmost importance, he said. However, in the present day context, “rehabilitation is a no man’s agenda”. Mr. Edayaranmula, talking about the attitude of the prison authorities towards rehabilitation, stated that each entity in the prison process has its own reasons for discarding the rehabilitation. The police are more concerned with enforcing law and order; the judiciary with guilt and evidence; the policy makers with putting anti socials behind bars; the society with wanting protection from criminals; the prison staff with wanting more funds; the social workers with the exasperation that comes with failure; and the prisoner with the whole process of reform and rehabilitation that is, contrary to its declared intentions in the matter, geared towards making him feel like an outcast. Mr. Edayaranmula had described his AIDC India experience where a single study, among 284 under trial prisoners in a Trivandarum sub-jail, took a long time and numerous permissions. Given the difficulty in obtaining the permission for a single 426

study in one sub-jail, it is not surprising that not much is known about India’s prison system, he surmised. The ADIC, as a project, started in the year 1990 when it was decided to work towards the rehabilitation of a high-risk population as part of its substance abuse strategy. They approached the prison authorities and, after the consistent efforts, the Government of Kerala approved the ADIC request to start a small center within a prison. As a result,  A separate independent cell was allocated within the prison;  Complete furniture was supplied from the prisons department manufactory;  Participation of the Social Welfare and Health Departments;  Mobilization of the services of doctors, social workers counselors and yoga therapists;  Began with free medicines from pharmaceutical firms and samples from doctors, but later got a direct supply from the Health Department;  Organized orientation program for prison staff and authorities;  Established ‘Navjyoti Counseling and De-addiction Centre’ – the first ever prison centre of its kind in India. 7.12

SOCIETAL PARTICIPATION IN REFORMATION As a part of community participation in the reformation and social

integration of the prisoners after their release, a large number of the respectable members of non-Governmental organizations, Retired Major General, Professors of I.I.T Delhi, the Eminent Psychiatrist, Psychologist, Principals and Teachers of the various educational institutions have been conducting various activities in the Prisons. These NGOs have had very

427

sobering and positive impact on the psyche of the prisoners, who have been shown the positive and the constructive approach to life after the interaction with them. NGOs participation is mainly concentrated in the field of the education, vocation and counseling for the Prisoners. Apart from the formal education with the NGO support, the classes in the various languages like Urdu, Punjabi, German, French etc. are also held in the prisons. Some of the NGOs have trained the selected prisoners on various trades and have been bringing a job for them against payment of remuneration. These prisoners are also rehabilitated and reformed by them after their release from the prisons.

***

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Chapter - 8 CONCLUSION AND SUGGESTIONS

CHAPTER -8 CONCLUSION AND SUGGESTIONS 8.1

INTRODUCTION This chapter presents the gist of the entire research conducted by the

researcher. It present the summary of the study in the form of conclusion as well as suggestions or recommendations from the point of view of researcher which can be helpful for the future references on the issues related to prison system. Researcher has studied and tried to answer all the questions related to prison system, its problems and ways to reform this system.

8.2

REVIEW OF ENTIRE STUDY The rehabilitation of the prisoner and reformation of prison system

is the matter of national as well as international concern. In India Earlier as far as prison is considered during ancient period Brahaspati laid great stress on imprisonment of convicts in closed prisons. Manu was against this system. Various punishment included were branding, hanging mutilation, and death and the imprisonment as a kind of punishment was least choice of the rulers. Kautilya advocated for release of some prisoners every fifth day, who would pay some money as floe or accept some other form of punishment or promise to work for social upliftment. The object of punishment during Hindu and Mughal period in India was to deter offenders from repeating offences. During the Mughal period in India the punishment was given mostly as a retribution or deterrence. The only redeeming feature of the prisoners was that the orders for their release were issued on special occasions. The prison system as it operates

429

presently in our country is a legacy of the British rule. Their Entire aim was to make imprisonment as “a threat to culprits”. They never tried to improve the conditions of prisons consequently; living conditions in jails became pathetic, though the jails were built on British model. The Prisons Act of 1894, empowered the then existing provinces to lay down their own prison rules for the overall prison administration. The act tried to secure uniformity in treatment of prisoners. Further The Constitution of India entrusted subject of the prison tothe state which meant that only states can make the laws related to prison institutions. It is important here to discuss the efforts of government of India towards reforming the prison system, notable in this regard is appointment of jail reforms committee in year 1980 under chairmanship of Hon’ble Mr. justice A.N Mulla which submitted its report in year 1983.The committee suggested that the dichotomy of prison administration at union and state level should be crushed and alsostressed upon segregation of prisoners on the basis of sex age etc.again in year 1987 the Government of India appointed the Justice Krishna Iyer Committee to undertake a study on the situation of women prisoners in India. It has recommended the inductions of more women in the police force with a view to deal with female and juveniles delinquents. After continuous intervention of Hon’ble Supreme court in the matters of jail tortures and its guidelines towards prisonreforms a committee was set up in the Bureau of Police Research and Development which drafted a jail manual in year 2003 and same was accepted by central government and circulated to state governments .In pursuance of such orders some states like Rajasthan, Orissa, Karnataka etc.have made their own prison manuals. Various guidelines related to prisoners like their safety and security, medical needs, cleanliness and hygiene, recreational activities, education and vocational trainings and rules related to prison

430

staff in the conduct of their duties have been mentioned in the prison manuals. Due to awareness among the central and state governments now prison reforms are visible in India. Through various techniques like using the new strategy of Public Interest Litigation and judicial activism, the Supreme Court of India had given expansive interpretation to the prisoners rights in the light of articles 14,19 20,21 ,22

and 39-A of Indian

constitution which included right against handcuffing, right to speedy trial, right to get compensation for illegal arrest, right against double jeopardy, right against self incrimination ,right to produce before magistrate, right to consult legal expert, right to get free legal aid etc.All these concerned issues were discussed in detail through various case laws and statues in the preceding chapters of this thesis. Besides the reformative measures taken by the government the condition of prisoners in India is far from satisfaction. The Researcher has discussed many Declarations, Covenants and Legislations which have been imitated and entered into the National and International levels for the effective promotion and protection of prisoners Rights. Whatever has happened in India for the protection of fundamental rights of prisoners and humanizing the prison atmosphere is the direct outcome of development taking place at international level. The researcher has discussed various prison systems of the world including prison systems of America, united kingdom ,Russia,

china

,south Africa, France, Nigeria, Afganistan,.the features worth mentioning here are due process of America which is considered as backbone of article 21 of the

Indian constitution, There is a unique feature of prison

administration in U.S which provides a channel for submitting any grievance relating to prison conditions which is properly handled and complied by U.S department of bureau of prison. The unitary feature of United Kingdom prison is that there is no provision of corporal

431

punishment except in some exceptional cases. Prisoners who follow rules can earn privileges. This is called the ‘Incentives and Earned Privileges Scheme’. Health care concern of inmates is major concern of prison authorities there. French prison system gives emphasis upon categorisation of detention centres, also more care towards sensitive inmates, advanced educational and training programmes are noticeable. As far as South African prison system is concerned the prisons law was amended in 1993 when solitary confinement and punishment on a spare diet were abolished, as was corporal punishment for prisoners. South African prison system has improved a lot still problem of overcrowding, Corruption, custodial tortures, rape, sodomy in prison is still challenges before government. In this series The Nigerian Prisons Service deserves commendation for its education programmes which can be concluded by the fact that many prisoners have completed post graduate courses and some are even pursuing Ph.D degree. talking about Russian prison reforms A psychological service has been set up

there with sufficient staff, and

practice of sending persons convicted of minor offences or those of medium gravity to settlement-colonies, which in Russia constitute the prototype for the ‘open prisons’ that exist in many West European countries. In china Prisonerswho have not been stripped of their political rights have the right to vote according to law. A prisoner may have his sentence reduced for good behaviour or be released on parole according to law.The Chinese Government attaches great importance to the protection of the civil rights of former convicts when they return to society after serving a sentence. Afghan prison system is gaining reformation momentum after years of violence and inhuman treatments in past. Afghanistan has ratified all the conventions related to human rights. Many nations including India are contributing to construct new prisons throughout the nation.

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8.3

PRISON REFORMS: THE CONCLUSIONS Researcher during the entire research has tried to mention the ways

which can improve the prison environment and rehabilitate prisoners into society. Researcher has discussed many prison reformative techniques through judiciary, legislations, and community involvement in the entire thesis. these techniques or ways really help in the reformation of prisoners,Noticeable among them can be concluded below. 1.

Sympathetic

behaviour of jail inspecting judges:The judges,

especially the jail inspecting judges should not be oblivious to the strict positivist approach to law that the prisoner is liable to only that punishment, which is legally sanctified they should behave sympathetically towards them as they are already distressed. 2.

Probation: It is a very significant tool of reformatory penology which is basically a period during which the convict ordered to undergo sentence, remains, instead of being in prison, under supervision. It is a treatment device, developed as a non- custodial alternative which is used by the criminal courts after guilt of an accused is established and the court considers that imposing a prison sentence would do no good, since imprisonment damages scope for the convict to readjust in the normal society after the release and his association with professional criminals in jail often has undesired effects.. Such a suspension of sentence during probation serves the dual purpose of deterrence for the convict (by acting as a threat of his being subjected to unexhausted sentence) and of reformation (by providing necessary help and guidance to the probationer in his rehabilitation).

3.

Parole: The ultimate significance of parole is that while retaining effective control over him, it enables the prisoner a free life. Under

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the scheme, every prisoner is carefully studied and the one who shows potential for correction and responds favourably to the disciplined life inside the prison, is allowed considerable liberty and finally released to join the society conditionally. It is considered as most important tool as reformation in almost all nations of world. 4.

Furlough:it is a matter of right while parole is not, Furlough must be granted to the prisoner periodically irrespective of any particular reason. Since the object behind this tool is merely to enable him to retain family and social ties and avoid negative effects of a continuous prison life. The period of furlough is treated as remission of sentence.

5.

Suspension commutation and remission:While considering the premature release of a life convict, the authorities are required to consider his case mainly taking into consideration the questions as to whether the offence was an individual act of crime with no affect on the society at large, as to whether there was any possibility of a future recurrence where the convict commits a crime; as to whether the convict had lost his potential to commit crime: as to whether any fruitful purpose would be achieved by confining the convict any further; as to whether the socio-economic condition of the convicts family call for such a premature release and other similar facets.

6.

Pardon: as a mode of mitigating the sentence of the criminal has always been a controversial issue since long. Proponents of power to pardon in the penal system argue that it substantially helps in saving an innocent person from being punished due to miscarriage of justice or doubtful conviction.. Despite all its shortcomings, the great moral advantage of pardoning power of the executive lies in the fact that it is always referable to grant liberty to a guilty offender rather than sentencing an innocent person. 434

7.

Open prisons: also named as open air camps, open jails or parolecamps (being a sort of expanded form of parole), are another such significant tool of criminal reformation, Open air-institutions are essentially a 21st century device for rehabilitating offenders to normal life in the society through an intensive after-care programme.

8.

Self governance by inmates:Under the system of self-government in prisons, the inmates elect some of their fellow prisoners as their representatives and the entire prison management is run by that elected body of prisoners, who exercise complete or at least partial control over mess and are expected to take care of the interests and welfare of their fellow prisoners.

9.

WorkRelease:In this method, the prisoner is allowed to work for pay in the society for part time basis. This gives him an opportunity to mix up with the society in a normal manner without any limitations. The control of the prison authorities in, however not completely taken away since he has to work within the permitted parameters and during non-working hours, he has to return the concerned correctional institution.

10.

Vipassana :It is a practical experiential way of understanding the mind-matter phenomenon and purifying one’s mind of underlying negativities. . It equips one with the inner strength to face the challenges of life in a calm, balanced manner, and gain mastery over one’s mind.

11.

After care programmes:During last about 2-3 months of the awarded term of sentence, the prisoner should be placed under an intensive

after-care

system,

which

systematically

designed

individualized process will offer him adequate opportunities to overcome his inferiority complex and guilt. In India, certain social

435

institutions such as seva sadans, nari niketans and Reformation Homes are at work in different places, involved in the task of aftercare and rehabilitation of criminals. 12.

Role played by judiciary:The Indian judiciary has adopted new approaches, developed new tools and invented new remedies to deal with increasing challenges to violation of human rights of prisoners. Over the last thirty years the Supreme Court has been rendering a signal service to the authorities dealing with prison system by upholding their Human Rights in the context of continuing International concern for their Human Rights. The court has protected the personal liberty against arbitrary invasion by the state.

13.

Education and vocational trainings:The continuing education of prisoners is yet another tool, that keeps them occupied and also would help their rehabilitation after release from jail. There should be greater emphasis on vocational training of inmates, which will provide them honourable means to earn their livelihood after release from jail. The facilities of lessons through correspondence courses should be extended liberally to the inmates, who are desirous of taking up advanced studies.

14.

Yoga and meditation: It is strongly believed that the practice of yoga and meditation can enable the prisoners to control their mind, which is prone to aggression bouts owing to their basic temperament and prison life. This is indeed a new approach to the problematic of crime and criminal in the Indian setting. Regular practice of yoga not only keeps the human body healthy and strong, but also bends the negative temperament to positive one, thereby taking the criminal away from criminogenic tendencies.

436

8.4

OBSERVATIONS

NOTICED

BY

RESEARCHER

DURING VISITS TO PRISONS 1.

Most of the jails do not have sufficient capacity to accommodate prisoners. There was Lack of separate provision for women jails at many places, there are only separate enclosures for women.

2.

The majority of prisoners and detenues were undertrials .they languish in jails for petty offences for which sentences would have been far less even if they had been convicted.

3.

There was lack of holding regular lok adalts in the prisons which are essential for disposal of petty offences for undertrials.

4.

General conditions of hygiene and food are not satisfactorily and needs improvement although in some jails attention is being paid by authorities in this regard.

5.

In some jails there was lack of proper medical facilities. Also there was shortage of female doctors or practitioners for women prisoners.

6.

There was lack of proper counseling centres for prisoners. There is urgent need of establishing such centres because there are many categories of prisoners like youth offenders, mentally sick prisoners who needs special attention.

7.

The process of applying bails through jail is very typical in some prisons. There is need of simplifying these processes.

8.

In many prisons N.G.Os along with prison authorities are working for reformation and rehabilitation. Such participation of N.G.Os must be encouraged at other prisons also .

9.

Many prisoners are behind the bars due to lack of legal aid or legal awareness. There is need of establishing proper legal aid centres in every prison.

437

10.

There was no proper curriculum for education in many prisons due to which there was lack of job opportunities for prisoners after their release.

11.

Special treatments to some prisoners were given in obedience to court orders. Such prisoners were either politicians or officers.

12.

Many prisoners were afraid of their future because of stigma of remaining in jails. There is need of proper counseling for them for keeping their moral high.

13.

Some prisoners complained of brutal treatment in lock-ups. There is need of regular and proper vigilance and supervision by magistrates for checking such abuse.

14.

There were few prisoners who were unable to tell researcher about grounds of their arrest. There should be proper facility by authorities to tell the prisoners regarding their crime. Researcher found difficulty in conducting the visits as jail authorities showed very less interest in providing the permission. At many prisons such visits were denied due to complex procedures of giving permissions.

8.5

GENERAL VIEW OF RESEARCHER After direct interaction with prisoners, prison staff, advocates, NCW

members, collection of data and facts etc. and after observing condition of prisoners at different jails during the visit of researcher, it was experienced by him that conditions of prisons and prisoners have changed a lot in past years. Along with the improved facilities and enhanced basic necessities and also stress upon skill and vocational development courses which provides basis of making prisoners self sufficient inside prison to earn for their living after completion of their sentence.

438

Many of the prisoners were under depressed situation inside the jail due to detention and there was sense of insecurity in them for their future after release from prison. Most of the prisoners were found to be from economically weaker section of the society who had thinking that whether they will get any employment to earn their livelihood outside the prison and how they will manage for shelter and other requirements of life. These tensions were directly affecting their behavior inside the jail. Many of the prisoners wanted to remain in jail because they were in dilemma that after their release they have to lead the same unprotected or insecure life outside. so rehabilitation is major concern for such inmates, as nobody wants to provide employment to person who was convicted of any grievous offence. The undertrial persons are waiting for final conclusion of trial so they have more pain as there is lack of speedy process or fast track courts due to which delay occurs and the families of prisoners also experience mental agony until trial ends. Efforts should also be made to provide more facility in all the jails to prisoners who have behaved well in prisons up to a particular period of detention to set up inspiration for other prisoners and improving their behavior also.

8.6

SUGGESTIONS The prisons are no more the institutions designed to achieve only to

deter the wrongdoers .Prisons are now the places, where the inmates are not neglected mass of the society but they are also human beings who have to go out in to their surroundings as well behaving as reformed persons. For a prisoner, the imprisonment itself is a punishment and thus, prisons are expected to be places of rehabilitation. The following suggestions are madein order to ensure the efficacy and efficiency of prison system and 439

administration under International law as well as machinery in India. If these recommendations and others put into application it certainly strengthen the process of reformation of prisoners at International level and in India and would go a long way in realising the cherished goal. (i)

To check hygiene and Control the Health Problems in Prisons Indian Prisons, being overcrowded, need to promote healthy, clean and hygienic environment in the Prisons. Sensitization programs and training sessions should be conducted regularly among the inmates as well as among the Prison staff. These sensitization programs and trainings can be given as a part of Swatch Bharat Mission, wherein funds for such trainings and programs can be channelized under this mission. Other grey area of concern is Health Problem in Prisons, among its inmates and Prison Staff. The dismal health situation in Indian Prisons can be attributed to the lack of professional counsellors, non-interested and ill-equipped doctors. To deal with these issues -to control health problems in prisons- there is dire need to fulfil basic and minimal need of humane environment in prison, such as: a) Proper emphasis should be laid on the maintaining the clean and hygiene in the prison. b) There should be appointment of permanent Physician doctor for the prison to address any medical emergency situation in Prison. c) There should be provision for the women doctor in the women prison, to facilitate the proper conduct of medical examination, in case of any medical situation. d) There should be special provision for the treatment of lifethreatening, venereal or contiguous diseases. There should be 440

provision for the appointment of special doctors, on case to case bases, to deal with such diseases and situation. e) First Aid should be present at all the blocks, compound and buildings of prison. Periodic inspection should be conducted to check the availability of essential medicines. Also, time-to-time, training should be provided for how, when and where to use the first aid. (ii) To minimize Prison Population : As evident from the research, Indian Prison system is at the brink of collapse due to colossal problem of overcrowding and archaic design of Indian Prisons. In addition to this, slow redressal of justice also leads to the overcrowding of prisons with the ever increasing population of undertrials. Thus, it becomes pertinent to minimize the prison population, especially undertrials by: a) Opening more Fast Track Courts – It could prove excellence in reducing the population of undertrails in Prisons. b) Providing Speedy Justice – Provision to provide speedy justice, in addition to existing ones, could be provided through legislative and administrative route by sub-categorization of offences. c) Constituting Special Reforms Committee – Special Reforms Committee should be constituted at both the National and District level for coordinating the activities relating to speedy justice, infrastructure, maintaining database of convicts and undertrials at both the levels. d) Fixing the Strength of Prisoners in Prison – Data should be collected regarding the optional strength of each Prison in country and then, accordingly, strength of each prison should be determined. This would serve two causes: 441

1. To understand the capacity of present Prison infrastructure in country. 2. To assimilate the data regarding the future need of more prisons in country. (iii)

Segregation

of

Accommodation

:

Provision

for

separate

accommodation should be there. Categorization of separate accommodation should be based on the following parameters: a) Nature of Trial – Heinous/ Serious/ Petty b) Status of Prisoner – Undertrial/ Convicted; factors like Repeated offender/Hard core criminal/History Sheeter etc. should be taken into account. c) Age d) Sex Separate accommodation should be there for the juveniles and proper facility should be provided to the prisoners who want to pursue education and Degree or Diploma should be given in order to incentivize prisoners towards education. And there should be library in each prison. There are no separate cells in the jails for the transgender. They cannot be kept in the cells for male or in the cells for female as because they are not male or female. So, there should be separate cell for these categories of inmates (iv)

Abolition of solitary confinement: No Prisoner should be kept in solitary confinement as it amounts to the violation of Human Right and against the norm of humane treatment. For the strict enforcement of the provision for no solitary confinement, there is dire need to define what amounts to ‘solitary confinement’ and what does not. 442

(v)

Proper security arrangements in jails : For the better administration of Prisons, optimal use of ICT (Information, Communication and Technology) should be there. This can be done by installing CCTV cameras in Prison compound and in the lobby of Jail Barracks. Especially, the Barracks of Hardcore criminals should be monitored 24 hours, so as control and minimize the chances of jail war or inmate fights.Prison compound should be provided with the adequate no. of cctv cameras, proper reception center, separate counseling room for inmates, meeting room for relatives and proper light and water facility, at both day and night. ICT can also be useful in proper surveillance of prison by keeping electronic record of each person or visitor, visiting the Prison. This will help in reducing the illegal smuggling of weapons or drugs or other illegal things entering in the Prison, thus ensuring the security of prison. For proper security of prison and prisoner, each prison should be facilitated by providing the required number of personnel with adequate weapons. There should be proper fencing around the prison, proper searchlight should be there and also adequate backup for electricity should be there. Additionally, all prisons should be provided with the fire-extinguishers at approachable distance in case of any emergency

(vi)

Improving food quality : There is dire need to improve the quality of food which is served to the prisoners. In most of cases, food served to the prisoners is below the standard of human consumption. The quality of food which is served to the prisoners has consequential effects on their behavior and reformation. It also affects their health problems, which is one of the main problems which Indian Prison suffers from. 443

(vii) Recruiting more personnel including psychologist in jail department : To understand the mental condition of prisoners and in their journey towards reformation, the role of psychologist is immense. Indian prisons have dearth of psychologist and there is urgent need to recruit more psychologist in the Jail Department. (viii) Futuristic job oriented courses for prisoners, especially for age group of 18-25 years : Prisoners should be provided with the opportunity to learn and engage themselves in such courses which could provide them decent life after serving their prison term. For this purpose, prisoners, especially those within the age group from 18-25 years, should be taught IT like mobile repairing, refrigerator, T.V. repair and other similar basic courses. These courses will help in their speedy reformation, as they will be using their energy in right direction and they will have prospects to earn and start afresh after their release from prison. These initiatives could be financed under the Skill India mission. (ix)

Easy procedure for getting permission if prisoner wants to pursue their education : State should facilitate the prisoners to pursue education by providing easy procedure for getting permission to study. For this purpose, the cumbersome rules and regulations for obtaining permission to pursue study, many times, act as an impediment. These cumbersome rules and regulations should be relaxed and Prisoners should be motivated to pursue education.

(x)

To reduce violence inside jails : To control the adrenaline rush, many times leading to bloody jail violence, proper energy outlet should be provided. This can be done by organizing the social and cultural events in the jail with the participation of various religious, non-government agencies and social groups. Programs like practicing Yoga and Mediation can be very beneficial in reformation 444

process of prisoners because these practices helps in creating conducive environment in the Prison and among the prison inmates. (xi) Regular visits of eminent persons to prisons : As rightly said by someone, a man moulds himself according to the situation and the people surrounding him. The presence of positive environment and positive people can be detrimental in reformation process of prisoners. Therefore, there should be regular visits in the jail by the eminent persons from different fields such as Sports, Arts, Science, Media and Movies, who can influence prisoners for the good and infuse them with the positive energy. These visits by eminent persons can bring a huge psychological change in the prison inmates encouraging them to change themselves for the good. (xii)

Permission for Parole and probation should be libealized : Prisoners should be incentivized with the good behaviour in form of more chances of Parole and Probation. This can serve two causes: a) Firstly, it will encourage prisoner to behave good, so that he will be incentivized with more chances of parole and probation. b) Secondly, his increase of parole and probation will be consequential to his increased chances of engaging himself with his family, relatives and society as a whole.

(xiii)

Free legal aid for those who can’t afford-Most of the prisoners in India are illiterate, poor and uninformed about their rights and remedies. To cater this large population of prisoners, free legal aid should be provided. For dispensing legal aid to this kind of prisoners, a special cadre of lawyer should be created. This cadre will serve in a single prison and will help to prisoners in understanding their legal rights and remedies including the legal procedure, about filling appeals and other legal processes.

445

(xiv) Allprisons

nationwide

should

be

linked

up

with

open

universities: With the motive to engage the energy of prisoner for his betterment, he should be motivated to join the open universities like IGNOU or Vardhman Mahaveer Open University in state of rajasthan etc. For this purpose, Open Universities should be persuaded to open their education centres in every prison and run them on regular basis. Though some prisons in Rajasthan have already started such centres by open universities, there is immense need to open such centre in every prison so as to provide opportunity to every prisoner to educate himself. (xv)

Trainings of personnel who deals with inmates : To create the conducive and healthy environment in the jail and among the prison inmates as well as among the jail administration, there should be regular and periodic training of personnel of Jail administration. Training should focus on aspects like as management, psychology, coordination etc.

(xvi) Cultural programs to be conducted regularly : Cultural programs should be conducted on the regular basis. Such cultural programs should provide some morals and learning and special care should be taken to engage maximum participation of prisoners. (xvii) Celebration of festival inside prisons : Jail administration should ensure that all the festivals are celebrated uniformly. Festivals like Independence Day, Holi, Ramzan, Christmas, Eid, Rakhi etc. create the feeling of brotherhood among the prisoners. But due care must be taken by jail administration against the miscreants who might try to create scuffle in such environment of celebration. (xviii) Exhibition of Movies –patriotic and educational : There should be provision for weekly or monthly screening of movies in the prison premises. Movies screened should be educational, patriotic and

446

documentary or any other, which gives some message. Movies can be a good medium for igniting the passion among the prisoners for reformation. (xvix) Daily routine plan for prisoners : In order to create discipline and change in the life of prisoner, Prison officer should make daily routine plan, in consultation with psychologist, for the prisoners. Such plan should include routine from morning to night and should describe the activities. This plan should be put to display outside each prison cell. (xx)

Personal identity record of prisoners and other entrants : To keep proper information about who is entering and when entering, proper log table should be maintained either in manual or in electric form.Data base of each prisoners like finger impression thumb ,impressionshould be maintained.It is also essential to maintain the personal identity of entrants, finger impression or thumb impression should be maintained.

(xxi) Better living facility : In prison, there should be proper provision for clean and adequate drinking water. Also to maintain the discipline in the jail, proper sleeping timing should be maintained and adequate provision should be maintained to monitor such compliance of timings and rules. (xxii) Meditation,yoga,classes : There should be provision for the daily or weekly meditation or yoga classes so as keep the prisoners and prison environment healthy. (xxiii) Computer education for prisoners : Adequate computer facility should be provided by the jail authorities for conducting computer teaching classes for the prisoners. This computer education classes could help prisoners in updating with the technology and might help them in generating income after their release from the prison. 447

(xxiv)Art and Craft Teachings and exhibitions of paintings of inmates: Prisoners could be taught art and craft in the jail. This could prove to be a sustainable source of income for them. They can organize their art and craft exhibition with the support of Prison administration. And can sell there are art at such exhibitions. Income generated from such exhibition could be used as a collective fund for the welfare of prisoners as well for promoting their art and craft. (xxv) Sporting event to be held once in week : To provide the channel for outlet of energy, sporting event should be conducted at least once in week. Such event provides the platform to the prisoners for showing their talent. And also it creates sense of belongingness among the fellow prisoners and motivates them to behave in better manner. (xxvi) Product formation by prisoners formation : Prisoners should be provided with the platform to showcase their talent by selling their products like pottery, weaving, sewing, art and craft. In this process, Prisoners should be involved in product formation in the Cottage Industry and Small Scale Industry. The products created by prisoners could be linked up by the Jail Authority with some Industry department or with NGOs, making an arrangement for the sharing of proceeds from the sale of these products at the market price. Proceeds resulting from such sale could be used for the collective benefit of prisoners and their art and craft.

8.7

SUGGESTIONS IN NUT SHELL After a thorough study, the researcher wants to conclude

some

recommendations to make reformation of the prison system to restore human rights of Prisoners.

448

8.7.1 Incorporation of prisoners right as new fundamental right in part III of constitution There is requirement for the new provision in the constitution recognizing the fundamental rights of the prisoners thoroughly. This is because prisoners, being a part of society, need some rights to protect themselves from the adversities. The present provisions of the constitution dealing with the prisoner rights are not substantial and are in the abstract form. So, there arises the need to incorporate the new provision in constitution, incorporating the right of prisoners thoroughly. 8.7.2 New provisions especially for woman and juvenile offenders to be added In prison Act Women and Children, being the vulnerable section of the society, need special protection in the jails and correctional facilities. There is need for incorporating more provisions addressing the rights of the women and children in the Prisons Act. Aim of such provisions should be strengthen the position of women and children in the society. 8.7.3 New provision for holding lok adalats for petty offences There is dire need of organising lok adalats throughout the nation by district and state legal service authority for reducing the number of cases pending before any trial court. For this purpose provision should be added to the legal service authority act for disposal of petty offences,list should be made by officers of judicial department and should be submitted to district and state authority. 8.7.4 Inclusion of “prison”as a subject in the concurrent list Presently prison and similar correctional institutes are subjects of state list where each state can make laws relating thereto; due to which uniformity has not been achieved in prison system throughout the nation.

449

So there is need of placing prison as a subject in concurrent list so that uniformity can be achieved in formulation and implementation of prison provisions. 8.7.5 Constituting task committee for review To minimise the prison population in India an urgent task committee should be constituted under chairmanship of Supreme Court judge, including other members like lawyers and social activists which will review the prison population in the nation. Committee should have authority to recommend liberty to those who have undergone their punishment and are still behind the bars. It should also review the prisoners records including their behaviour and further recommend rehabilitation for those who have improved themselves in prison. 8.7.6 Prison reforms should be made priority in five year plans We have seen around thirteen five year plans at national as well as at state level but none of them have suggested for constructing or improving the prison infrastructure and conditions. Due to insensitivity of governments towards the prisons, they are in poor condition. This is need of hour that building up different correctional institution should be made as an agenda in five year plans so that lack of fund can’t create barriers in the way of prison system improvement. 8.7.7 Pay allowance and other facility of prison officer should be increased The salary and other allowance and service conditions of prison superintendent and other officers should be made parallel to top services of state so that more youth will be attracted towards career in prison department. Also the salary of prison staff should be increased so that corruption in the department can be checked and work satisfaction in staff will increase which will lead towards better prison administration 450

8.7.8 Induction and refresher training for prison staff Following the training pattern for Indian police service, a curriculum for induction training for newly recruited prison officers and staff should be made in such a manner that they learn the basic techniques to reform the prisoners instead of learning cruel methods for dealing with them. Also there should be refresher training course for officers and prison staff in every five years. This will reenergise them with adoption of more and advanced techniques for rehabilitation of prisoners. 8.7.9 Regular cadre of teachers for different subjects be made The education department of state should appoint teachers of various disciplines like mathematics,general science,English; psychology etc.on deputation for temporary period to teach prisoners.If resources of state allows regular recruitment can also be made for such purpose 8.7.10 Code of conduct for prisoners There is need of drafting a code of conduct for prisoners which can develop their faith in Indian constitution and, administrative, executive, legislative, and judiciary system. The code should contain the subjects that they will maintain peace, will not damage public property, and they will not keep any weapon inside the prison. This will serve the purpose of disciplining the prisoners. 8.7.11 Need of prison commission On the verge of national human right commission, national women commission, national minority commission, national SC and ST commission, there is need of permanent prison commission in India which should headed by a retired supreme court or high court judge. The commission will look after the problems and other issues related to prison system and will take care of socio legal problem of prison system and prisoners and should monitor prison rehabilitation schemes. 451

8.7.12 Educated prisoners be registered with employment offices of state State should draft a rehabilitation program for prisoners in systematic manner .firstly it should develop a curriculum for different job oriented courses for prisoners and after completion of that they should be registered with employment exchange department of state which can make arrangements for prisoners in getting the employment after release. 8.7.13 Prison reforms should be added as Directive principle Directive principles were enumerated in the constitution as guidelines to state for welfare of its people and society. Prison reform as a important subject is still missing in these guidelines. There is urgent need of inserting this subject in the directive principles of state policy. 8.7.14 Amendment in penal provisions Punishments in an alternative to prison sentences need to be legally sanctified. The clause 18 of the Indian Penal Code (Amendment) Bill, 1979, proposed to provide alternative punishments to prison sentence such as community service, disqualification from holding office, order of payment of compensation and public censure, but the Bill lapsed. Bringing this bill again and its implementation will serve the purpose of prison reformation in reality. 8.7.15 Prison policy for old ages prisoners On the humanitarian grounds a policy should be drafted for old ages prisoners so that sympathetic decisions like premature release or alternative punishment like community services can be allowed to them. It will serve the purposes of reducing the overcrowding in prisons. There are fewer chances of re-entry of old age prisoners into crime, so it is safe to develop such policy for them. 8.7.16 Need to check media trial of arrested person Whenever a person is arrested or sometimes even name of any suspected person appears during investigation or inquiry, Just to attract the 452

viewers and increase their TRP rates media(both electronic and print) starts its live trial on television in that case even the layman who are unaware about any legal procedures and law starts making opinion about any issue . Many times before conclusion of trial by court media establishes that who is guilty and what is to be done with such accused. Surprisingly the opinion poll is conducted, whether somebody is to be imprisoned or not, should be hanged or not. Not only this when final judgement are delivered by court media starts discussing its sanctity. Such practices mislead the public at large and create undue influence and pressure on advocates, judiciary and police personnel. So there is need to make any policy to check this ‘media trial’. 8.7.17 Role of NGOs and Human Rights Activists, law students, teachers NGOs and Human Rights Activists can contribute for speedy and effective trial by providing free legal advice and aid with the help of competent senior advocates and in matter of policy decision, Public Interest Litigation can be utilized as an ultimate device. The offenders for petty offences can be released by intervention of NGOs and Human Rights Activists. A legal aid scheme should be planned out in which the accused can be released for such offences at the first instance from the court directly and the admission to the prisons can be reduced which may help to reduce overcrowding. Legal Awareness Seminars, 8.7.18 Suggestions for relatives and family members of victims and accused In many cases it is observed that certain crimes are done by temporary greed, lust or anger by accused. It becomes the duties of family members, friends and relatives to rescue the accused with utmost sympathy and cordial efforts as if a patient is treated. The sense of hatred should not be created for such victims otherwise the victim would feel guiltyconscious, sense of inferiority complex and may turn out to be a hard-core criminal. Since the day of arrest during remand, police custody, judicial 453

custody, trial and even conviction or the acquittal as the case may be, the approach of relatives and family members should be generous, objective and positive, which may be prove to be useful for correcting him and transforming him to be a good citizen even after conviction and completion of imprisonment is to be rehabilitated in the society. 8.7.19 Suggestions for the society Sometimes wrong interpretations made by media and press leads the society towards misconception regarding any issue and cause multiple problems for accused and his family. It becomes typical for them to live in society peacefully and with dignity. Even after his acquittal the attitude of society towards him remains same. Such image follows such persons like a dark spot throughout his life. The scope for employment, business, profession, vocation is always curtailed and accused is again tempted for committing some crime to take vengeance with whole society. So it is expected here from the society to play positive and objective roll for rehabilitation of such people. Problem of rehabilitation of prisoners is only a part of the larger problem of social integration. The prison administration, alone cannot rehabilitate the prisoners. It can only make its sincere efforts to set right the prisoners but these efforts will succeed only if our judiciary, police system along with our education and social institutions and values are properly integrated into a harmonious situation. Having considered all the pros and cons of the study, the researcher after a thorough and careful observation has advanced the above suggestions. The researcher is confident that these suggestions will definitely lead the prison system to an comparative international standards and in achieving the goal and objectives of the system.

***

454

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LIST OF CASES 1.

Abhubhai Fatabhai v. State of Gujarat, (DB) 2000 Cr.LR. (Guj) 207 38

2.

Ajit Singh v. State, AIR 1976 SC 1855 235

3.

Ajitbhai Ganpatbhai Chauhan v. State of Gujarat, 2002 Cr.LR. (Guj) 2

4.

Allana Abdulla v. State of Gujarat, 1999 (2) GLR 1514 : 1999 (1) GLH 852236,237

5.

AR Antulay v. RS Nayak, AIR 1984 SC 718 109,316,384

6.

AR Antulay v. RS Nayak, AIR 1984 SC 1630 15

7.

Asharfi Lai v. State of UP, AIR 1987 SC 1721 27

8.

Attorney General of India v. Lachma Devi, AIR 1986 SC 467 26

9.

Babu Singh v. State of UP, AIR 1978 SC 527 125

10.

Bhagwan Anna Arbune v. State of Maharashtra, 1994 Cr. LJ 1477 248

11.

Bhakhar Ram v. State of Rajasthan, (1991) 3 Crimes 719 (Raj) 194, 386

12.

Bhavam Shankar Kripaldas v. State of Gujarat, 2000 (2) GLR 1117: 2000 (2) GLH 120239

13.

Bhim Singh v. State of J & K, 1985 4 SCC 677 198

14.

Bhupendra Singh v. State of MP, AIR 1981 SC 1240 197

15.

Bhurabhai G B D Vadher v. State of Gujarat, (DB) 1997 Cr. LR (Guj) 385

16.

Chandirama Das v. Chairman Railway Board, 199

473

17.

Charles Sobaraj v. Supdt. Central Jail Tihar, AIR 1978 SC 1514 104, 105, 162, 174, 380, 383

18.

Charles Wolff v. McDonnell, (1974) 41 Law Ed 2nd 935 104,382

19.

Citizens for Democracy v. State of Assam, (1995) 3 SCC 743 : AIR 1996 SC 2193 : 1996 Cr.L.J. 3247

20.

Common Causes v. Union of India, (1994) 4 SCC 33 109, 125, 316, 384

21.

Common Cause Society v. Union of India, AIR 1996 SC 1619 112,126, 384

22.

Consumer Education and Research Center v. Union of India, (1995) 3 SCC 42

23.

Dadu Tulsidas v. State of Maharashtra, 2000 SOL Case No. 573 (SC)

24.

Danial H Walcott v. Superintendent, Nagpur Central Prison, 1971 Bom LR 436

25.

DBM Patnaik v. State of Andhra Pradesh, AIR 1974 SC 2092 104, 107, 121, 173,382, 384

26.

Delhi Administration (Now NCT of Delhi) v. Madan Lai, (2002) 6 Supreme 77230

27.

Dharambir v. State of UP, AIR 1979 SC 1595 133, 215, 219, 384, 390

28.

Dipakkumar BP Upadhyay v. State of Gujarat, 1998 Cr. LR. (Guj) 124 : 1998 (1) GLR 1

29.

DKBasu v. State of West Bengal, AIR 1997 SC 610 148, 385

30.

Ex-Sepoy Manjit Singh v. Union of India, Cri Misc Petition No. 17437 of 1994

474

31.

Francis Coralie Mullin v. Delhi Administration, AIR 1981 SC 746 115, 142, 182, 384

32.

George Fernandes v. State, (1964) 66 Bom LR 185 131,385

33.

Gurdev Singh v. State of Himachal Pradesh, 1992 Cr LJ 2542 (HP) 221

34.

Hari Singh v. Sukhbir, AIR 1988 SC 2127 197

35.

Hasmukh D. Prajapati v. State of Gujarat, 1995 Cr.LR. (Guj) 273 : 1995 (1) GLR 726

36.

Hussainara Khatoon (I) v. State of Bihar, AIR 1979 SC 1360 110,316, 384

37.

Hussainara Khatoon (II) v. State of Bihar, AIR 1979 SC 1369 114,384

38.

Hussainara Khatoon (IV) v. State of Bihar, AIR 1979 SC 1377 126

39.

Hussainara Khatoon (V) v. State of Bihar, AIR 1979 SC 1819 126

40.

In Re Prison Reforms Enhancement of Wages of Prisoners, AIR 1983 Kerala 261

41.

Incio Manuel Miranda v. The State, 1989 Mah LJ 77 146

42.

250 Inder Singh v. State, 1978 Cr.LJ 766 (SC)

43.

Jacob George v. State, (1994) 3 SCC 430

44.

Jumman Khan v. State UP, (1991) 1 SCC 752

45.

K Pandurangan v. SSR Velusamy, (2003) 11 ILD 306 (SC)

46.

Kadra Pahadiya v. State of Bihar, AIR 1981 SC 1167

47.

Kadra Pahadiya v. State of Bihar, AIR 1983 SC 939

48.

Kalpesh Gunwantlal Soni v. State of Gujarat, 2000 Cr.LR. (Guj) 309 : 2000 (3) GCD 1717

475

49.

Kalyan Chandra Sarkar v. Rajesh Raj an alias Pappu Yadav, AIR 2005 SC 972 : (2005) 3 SCC 284

50.

Kartar Singh v. State of Haryana, AIR 1982 SC 1439 : 1982 Cr LJ 1772

51.

Kehar Singh v. Union of India, AIR 1989 SC 653

52.

Khagendranath, AIR 1958 Assam 188

53.

Kharak Singh v. State of UP, AIR 1963 SC 1295

54.

Khatri v. State of Bihar, AIR 1981 SC 928

55.

Khatri v. State of Bihar, AIR 1981 SC 1068

56.

Kishor Singh v. State of Rajasthan, AIR 1981 SC 625

57.

Kishore Brothers Ltd. v. Employee’s State Insurance Corporation, (1996) 2 SCC 682

58.

KM Nanavati v. State of Bombay, AIR 1961 SC 112

59.

Koli Jeram Bhimji v. State of Gujarat, 1998 (1) GLR 754

60.

Koyabhai Bhaichandbhai v. State of Gujarat, 2001 Cr.LR (Guj) 664

61.

Kuljit Singh v. Lt. Governor of Delhi, AIR 1982 SC 774

62.

Kunnikkal Narayanan v. State of Kerala, AIR 1973 Ker 97

63.

Latif Chhotumiya Shaikh v. State of Gujarat, 2000 (3) GLR 2362 : 2000 (3) GLH 601

64.

Laxman Naskar v. State of WB, AIR 2000 SC 2762 : 2000 (7) SCC 626

65.

Linder Frank Wolfgang v. Yogesh D Shah, 2002 Cr. LR (Guj) 220 27

66.

LX v. Union of India, 2004 (Delhi HC) 108, 384

67.

M.A. Khan v. State, AIR 1967 SC 254 131,385 476

68.

Maganbhai Prasangbhai v. State of Gujarat, 1994 (2) GLR 977 : 1994 (2) GCD 201

69.

Mahesh v. State of MP, AIR 1987 SC 1346 27

70.

Maliyakkal Abdul Azeez v. Assistant Collector, Kerala, (2003) 2 ILD 920 (SC)128,183

71.

Maneka Gandhi v. Union of India, AIR 1978 SC 59 106,384

72.

Mara Ram v. Union of India, (1981) 1 SCC 107 225

73.

MH Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : AIR 1978 SC 1548116,384, 385

74.

Mir Mohahmad Ali v. State of Andhra Pradesh, 2000 126

75.

Modiram v. State, AIR 1972 SC 2438 14

76.

Mohammad Giasuddin v. State of A.P, AIR 1977 SC 1926 31, 33, 130, 133,384, 389

77.

Motilal Saraf v. State, 2006 SC 113

78.

Motisinh Kesrismh v. State of Gujarat, (DB) 1994 Cr. LR (Guj) 396 : 1994 (1) GCD 822 : 1994 (2)

79.

Murti Devi v. Delhi Administration, (1998) 9 SCC 604 148, 385

80.

Nadella Venketkrishna Rao v. State of AP, AIR 1978 SC 480 23

81.

Palaniappa Gonder v. State of Tamil Nadu, AIR 1977 SC 1323 37, 196

82.

Pandit Parmanand v. Umon of India, (1995) 3 SCC 248 106, 384

83.

Parmannd Katara v. Union of India, AIR 1989 SC 2039 : (1989) 4 SCC 286,107, 384

84.

Paschim Bengal Khet Mazdoor Samiti v. State of West Bengal, AIR 1996 SC 2426 : (1996) 4 SCC 37

477

85.

Phul Singh v. State of Haryana, AIR 1980 SC 249 186

86.

PoonamLata v. Wadhawan, AIR 1987 SC 1383 : 1987 (3) SCC 347 248, 249, 252, 393

87.

Prabha Dutta v. Union of India, AIR 1982 SC 6 141

88.

Pragji Anandji v. State of Gujarat, 2000 Cr.LR (Guj) 290

89.

Prakash v. State of MP, 1993 Cr LJ 119 (MP)

90.

Prem Shankar v. Delhi Administration, AIR 1980 SC 1535

91.

Pt. Parmannd Kumar v. UOI, AIR 1989 SC 20

92.

Punchu v. State of Orissa, 1993 Cr U 953

93.

R Rajgopal v. State of Tamil Nadu, AIR 1995 SC 264

94.

Rachhapal Singh v. State of Punjab, AIR 2002 SC 2710

95.

Rachod Mathur Waswa v. State of Gujarat, AIR 1974 SC 1143

96.

Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507 : AIR 1998 SC 3281

97.

Rajendra Prasad v. State of UP, AIR 1979 SC 916

98.

Ram Shankar v. State of MP, AIR 1981 SC 644 : 1981 Cr LJ 162

99.

Rasikbhai Ramsing Rana v. State of Gujarat, (DB) 1997 Cr LR (Guj) 442

100.

RD Upadhyay v. State of AP, AIR 2006 SC 1946

101.

Reepik Ravindra v. State of AP, 1991 Cr. U 595 (AP)

102.

Regina v. Secretary of State for Home Department Ex-parte Leech, 1994 QB 198

103.

Rudul Shah v. State of Bihar, AIR 1983 SC 1086 : (1983) 4 SCC 141

478

104.

Sagrambhai Nagibhai Bharwad v. State of Gujarat, 1998 Cr. LR (Guj) 8

105.

Sanaboina Satyanarayana v. Government of Andhra Pradesh, (2003) 9 ILD 368 (SC)

106.

Sanjay Suri v. Delhi Administration, AIR 1988 SC 414

107.

Sanjay Suri v. Delhi Administration, 1998 (Suppl.) SCC 160

108.

Sanjit Roy v. State of Rajasthan, AIR 1983 SC 328

109.

Saradhakar Sahu v. State of Onssa, 1985 Cr LJ 1591

110.

Saran Singh v. State of Punjab, AIR 1978 SC 1525

111.

Sepoy Bhuwneshwar Singh v. Union of India, 1993 Cri LJ 3454 (SC)

112.

Shabuddin, 1986 Cr LJ 149 (Guj)

113.

Shaikh Abdul Azeez v. State of Karnataka, (1977) 2 SCC 485 : 1977 SCC (Cri) 378

114.

Shakila v. Vasant, (2003) 7 SCC 749

115.

Sharad Keshav Mehta v. State of Maharashtra, 1989 Cri LJ 681

116.

Sheela Basre v. State of Maharashtra, AIR 1983 SC 378

117.

Sher Singh v. State of Punjab, AIR 1983 SC 361

118.

Smt. Kewal Pati v. State of UP, 1995 (101) Cr. U 2920 SC

119.

Sodan Singh v. State of Rajasthan, (1991) 3 Crime 722 (Raj)

120.

SP Anand v. State of MP, ADR. 2007 MP 167

121.

State (Govt, of NCT of Delhi) v. Prem Raj, (2003) 9 ILD 359 (SC)

122.

State of Andhra Pradesh v. Challa Ramkrishna Reddy, AIR 2000 SC 2083

123.

State of Andhra Pradesh v. Sayyaduddin and others, ADR. 1996 AP 479

124.

State of AP v. M.T. Khan, (2004) 13 ILD 589 (SC)

125.

State of Gujarat v. Hon’ble High Court of Gujarat, AIR 1998 SC 3164

126.

State of Gujarat v. Mustufakhan B Pathan, 1997 Cr. LR (Guj) 380

127.

State of Gujarat v. Raghu, 2003 Cr. LR (Guj) 393 : 2003 (1) GLR 205

128.

State of Haryana v. Ghaseeta Ram, AIR 1997 SC 1868

129.

State of Haryana v. Jai Singh, (2003) 4 ILD 131 (SC) : AIR 2003 SC 1696

130.

State of Haryana v. Mohinder Singh, AIR 2000 SC 893

131.

State of Haryana v. Nauratta Singh, (2000) 3 SCC 514

132.

State of Himachal Pradesh v. Lat Singh, 1990 Cr. LJ 723 (HP)

133.

State of Maharashtra v. Asha Arun Gawalui, AIR 2004 SC 2223

134.

State of Maharashtra v. Manubhai Pragaji Vashi, (1995) 5 SCC 730

135.

State of Maharashtra v. Prabhakar Pandurang Sanzgir, AIR 1966 SC 424

136.

State of MP v. Mohan Singh, (1995) 6 SCC 321 : 1996 Cr LJ 2878 (SC)

137.

State of Punjab v. Kesar Singh, (1996) 5 SCC 495

138.

State through Supdt. Jail, Delhi v. Charulata Joshi, 1999 C. L.J 2273

139.

Sukdas v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991 : (1986) 2 SCC 401

140.

Sukhdev Singh, (1982) 2SCC 439

141.

Sunil Batra v. Delhi Administration, (1978) 4 SCC 494 : AIR 1978 SC 1675

480

142.

Sunil Batra v. Delhi Administration, 1980 Cr.LJ 1099 (SC) : AIR 1980 SC 1579

143.

Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409

144.

Sunil Gupta v. State of MP, (1990) 3 SCC 119

145.

Suijit Roy v. State of Rajasthan, AIR 1983 SC 328

146.

TK Gopal alias Gopi v. State of Karnataka, (2000) 6 SCC 168

147.

TN Mathur v. State of UP, 1993 (Supp) 1 SCC 722

148.

Vallabh Ramji v. State of Gujarat, 1993 (2) GCD 213 : 1994 (1) Crimes 198

149.

Veena Sethi’s case, AIR 1983 SC 339

***

481

QUESTIONNAIRE

RESEARCH METHODOLOGY The Research and Methodology involves two aspects for arriving at the conclusion (i)

Doctrinal

(ii)

Non – Doctrinal

In doctrinal approach the existing literature in the form of Books, Articles, Research Papers, Seminar publication help me to the topic. Further the “Socio Legal Study Of Prison System And Its Reforms In India” again required a detailed doctrinal approach and the same has been followed. The other aspects of Non – Doctrinal includes questionnaire which was there to know about the feedback status of the Prison System on my research topic. Interview from various sections of the society was conclusion. The questionnaire as placed by me before the interviewers is annexed and the outcome has been stated by me in the conclusion part. Doctrinal I. Books (i)

Online

(ii)

Printed

II. Articles (i)

Online

(ii)

Printed

III. News Papers (i)

Online

(ii)

Printed

IV. Statutes V. Case Laws [Mentioned at foot-notes and in bibliography] Non-Doctrinal I.

Questionnaire

QUESTIONNAIRE (FOR PRISON STAFF) Que.1. What,in practice, is the maximum/minimum time for which the accused person

is

kept

in

the

police

lock-up.

Maximum.........

Minimum........................................................................................................ Que.2. Do you inform a person in your custody o f the grounds of his arrest........... .................................................................................................................................... Que.3. Do you allow, relatives/friends/lawyers of the accused person to meet him, whenever, they come to v is it the jail? how much time is allowed to them .................................................................................................................................... Que.4. What are the various difficulties which you usually face, while dealing with a prisoner? .................................................................................................................................... Que.5 Prisoners usually have a distrust towards police and often speak against them. In your opinion what is reason? .................................................................................................................................... Que.6. What should be the role of police towards resocialisation of prisoner into.society? ................................................................................................................................... Que.7. Would you like to suggest any change in our present prison system? .................................................................................................................................... Que.8. Do you feel any sort of sympathy towards, the long­ term prisoners during their imprisonment? .................................................................................................................................... Que.9. What are the various correctional and vocational trainings imparted to the inmates in your prison? .................................................................................................................................... Que.10. Do you have separate arrangements for the segregation of the different type of the inmates? ...................................................................................................................................

QUESTIONNAIRE (FOR ADVOCATES) Que.1. what difficulties are in your opinion faced by accused during his trial for any offence? …………………………………………………………………………………… Que.2. How much time is taken by court, for trial of a grievous offence ? .................................................................................................................................... Que.3.what is the reason in your opinion about long duration of trials? ………………………………………………………………………………… Que.4. Would you like to suggest any change in our present police system? .................................................................................................................................... Que.5 do you agree that present legal aid mechanism is suffient for prisoners?. ................................................................................................................................... Que.6. share your experience of any case related to torture of prisoners? ................................................................................................................................... Que.7. Would you like to suggest any change in our present prison system? .................................................................................................................................... Que.8.whether reformation process at present is suffient to improve prison environment? .................................................................................................................................... Que.9. Do you felt any sort of sympathy towards the accused during his trial .................................................................................................................................... Que.10 Can you suggest any method of resocialization of those prisoners, who are sentenced for long terms?

QUESTIONNAIRE (FOR PRISONERS) Que.1. what was the nature of the offence under which you were charged? ........................................................................................................ Que.2. after how much time you were informed of the grounds of detention? .................................................................................................................................... Que.3. what difficulties are faced by you in the police custody? .................................................................................................................................... Que.4 what is the attitude of the prison officers towards you and your family? ............................................................................................................ Que.5were you allowed to communicate your lawyer regularly? ……………………………………………………………………………………… Que.6 whether prison staff allows you to meet your family members. ................................................................................................................................... Que.7. What was the attitude of the other prisoners towards you in prison? .................................................................................................................................... Que.8. what sort of education or vocation/training you have learnt in the jail?? .................................................................................................................................... Que.9. what is your daily routine in the prison? .................................................................................................................................... Que.10. What are the various games and cultural activities in which you participated in the jail ? ...................................................................................................................................

Questionnaire phase Includes (A)

Preparation of question related to Prison System

(B)

Questionnaire were designed to capture the; (a) Level of awareness of the Legal Study Of Prison System And Its Reforms In India Issues and constraints in using the system (b) Issues and constraints in impact on society by the Information providers, which includes –

(C)

(i)

Public Authorities

05

(ii)

Jail Superintendent

04

(iii)

prison officer

06

(iv)

Prisoners

04

(v)

Advocates

10

(vi)

Law Students

20

(vii)

Professors

05

(viii)

Activists

06

(ix)

Researchers

06

(x)

Rural People

10

(xi)

Urban People

20

(xii)

Doctors

04

(xiii)

Engineers

08

The Answers given by the above were used in conclusion and suggestion chapter.

****************

PUBLICATIONS

Ph : 0294-2470958 Ext. 400 Fax : 0294-27105

UNIVERSITY COLLEGE OF LAW MOHANLAL SUKHADIA UNIVERSITY, UDAIPUR Prof.. ANAND PALIWAL Dean Dated :

No. F. /UCL/Ph.D./2014/

TO WHOM IT MAY CONCERN This is to certify that Mr. Priyadarshi Nagda has submitted an article on “concept of recognition in international law and instances of its breach by powerful Nations.” which has been published in the Mewar Journal of

Legal Studies, ISSN No. 0975-346X (Ref. Journal) .

(Prof. ANANAD PALIWAL) DEAN

Cover Page

Title Concept of Recognition in International Law and instances of its Breach by Powerful Nations

Citation Format OSCOLA 4th Edition

Prepared by : Priyadarshi Nagda Scholar university college of law Udaipur.

Title Concept of Recognition in International Law and instances of its Breach by Powerful Nations

Introduction The recent annexation of Crimea, formerly the part of Ukraine, by Russia has again raised the question of Sovereignty of a State. Whether it will be a part of New state or will remain the part of old one? Since past, this specific question has many times rattled the International community wherein one State loses its Sovereignty by the intrusion of other. In this respect, tool of Recognition is very effective as it has been many times used by the other States to deter, punish or impose the sanction upon the State in question. This analogy can again be traced in the present case of Russia, in case of annexation of Crimea, where it is facing the same consequences from the Western nations and International organizations like NATO in form of economic sanctions and joint military exercises against it. Supplementing the case of Crimea with the past cases of Rhodesia, Palestine, Israel, South Sudan, Nicaragua, Hong Kong, Tibet, Kosovo, Somaliland, Chechnya, Darfur etc, it becomes imperative to understand the concept of Recognition in International Law and what are its implications in the effective functioning of the Sovereign in International community. This research article focuses on analysing the Recognition with main emphasis on its two specific types, namely De facto and De jure by conjecturing various doctrines and historical events related to the same.

Recognition The concept of recognition is not of the recent origin and dates back in the history. It is an institution that has existed for a long time. Its earliest use appeared to be in the Middle Ages when a political entity, in order to become an independent member of the family of Christian nations required papal recognition.1 While the power of the Pope waned at the end of the Middle Ages, a similar role was played by the

1

Blix, Hans M., Contemporary Aspects of Recognition (1970II) 130 Recueil des cours de l'Académie de droit international de la Haye 589.

European oligarchy of the Great Powers in the first half of the nineteenth century2. In modem times, the grant of recognition is exclusively left to the judgement of the executive department of national governments and its decision is binding upon the judiciary3. It is through recognition that one state is able to exercise his rights and attributes of sovereignty visavis another state. But it was in 1947, when Sir Hersch Lauterpacht entered in this fray of Recognition through his book Recognition in International Law4 where he vehemently averted that States were legally obliged to recognize any polity that met the requirement of statehood. The work of Lauterpacht has gained importance because he called for the collectivization of recognition and rejected legal positivism. As per John Dugard5, to embark upon the issue of recognition, it is essential to examine the practice of International recognition under League of Nations. Status of Recognition in the past time Tracing from the time of League of Nations, it was believed by many states that the membership in League of Nations is an automatic passport to gain their ‘International Recognition’. According to Dugard, two trends could be identified from that era. First, the collectivization of recognition through the League substantially undercut the preexisting law of recognition according to which each state had absolute discretion to grant or withhold recognition to an aspirant state. Second, the emergence and rise of the principles of selfdetermination and respect for minority rights suggested to a wouldbe state that its human rights behavior would be a factor considered by the international community in deciding whether to recognize it.6According to him, recognition during the period of League of nations was “a branch of international law rather than an exercise in international politics”. After the First World War, when League of Nations failed to stop the Second World War, one more body came into existence in 1945 which is known as ‘United Nations’. And under the reign of United

2 3

L. Lederer , 'Recognition A Historical Stocktalk Lng' [1957] International Ret , 6972.

P.K. Menon, 'Some Thoughts about the Law of Recognition' [1991] SriLanka J. Int' L. 87, 87. H Lauterpacht , Recognition in International Law (1st, Cambridge Law University, Cambridge 1947). 5 John Dugard, Recognition and the United Nations (3rd, Cambridge Law University, Cambridge 1987). 6 Ibid at p.16. 4

Nations, as per Dugard, Recognition certifies the ‘legal’ existence of an entity as ‘State’ subject to the benefit and burden of International Law. But, he also adds that, such recognition by the organization does not require a member state “to enter into bilateral relations, or to exchange diplomatic relations with an obnoxious fellow member ..”.7 Also the parameters under Article 1 of the Montevideo Convention8, which attempts to provide quintessential of states, could not be considered sufficient for the recognition9. Rather to gain existence as a State, such entities must avoid violating any peremptory norm of International Law.10 Also the pretext of collective recognition should be considered as the legal recognition11 for any state to be termed as Sovereign.

Status of Recognition in present time The Law of Recognition is not yet fully developed and majorily remains uncodified in terms of technicalities and modalities of its operation. As remarked by one writer: “Recognition has been the football of diplomats who have made it mean anything that suited their purpose. It has certainly been grossly abused as a weapon of diplomatic pressure and intervention... It has in many cases proved to be an insoluble puzzle to the courts whose decisions have been sometimes conflicting and confusing”.12 The law of recognition has escaped strict legal criteria or controls. Recognition per se is a political act; since its consequences are within the ambit of international law, it may be said that it is a legal act. In practice, recognition constitutes a political determination, frequently according to considerations of 7

Ibid at p. 50. Montevideo Convention on the Rights and Duties of States, 1933. Article 1:‘The state as a person of international law should possess the following qualification: permanent population;defined territory;government; and capacity to enter into relations with the other states.’ 8

9

Ibid at p.130. Ibid at p.131. 11 L. Berat, 'Recognition and the United Nations' [1989] Tex. Int'l L. J. 501, 506. 12 Brown, 'The Legal Effects of Recognition", 44 The American Journal of International Law,(1950) p. 61.' [1950] The American Journal of International Journal, 61. 10

policy, of questions of mixed international law and fact.13 And this recognition is many times delayed because of the reason of national interest of a country or group of countries. The legal act of recognition determines whether international law is applicable to the new entity in its relation to other States. The answer to this question

whether the establishment of the fact that in a

given situation 'States in the sense of international law' exist

is within the jurisdiction of the States

concerned.14 And conventionally this is considered as the unilateral act of the State. In the modem world system, along with the rapid growth of a large number of independent nation States with diverse political, social and economic backgrounds, the subject of recognition is bound to be of major importance. The importance will continue to be enhanced along with the marked transition of international law from the traditional system of formal rules of mutual respect and abstention to an incipient system of formal rules of joint efforts and cooperation. 15

De Facto Recognition and De Jure Recognition The subject of de facto recognition is a somewhat elusive topic of the law of recognition. There is no consensus of opinion as to its precise legal meaning.16As De facto recognition is also known as tacit recognition, and the essential feature of this type of recognition lies in its revocability. According to Lauterpacht, to completely understand the concept of de facto, following essential should be taken into consideration: a) de facto recognition is not a modern innovation but a frequent feature of practise of States. b)de facto recognition is a formal act which has legal consequence and characteristics which distinguish it from de jure recognition. c)de facto recognition must not be confused with informal intercourse, even when accompanied by an exchange of agents and representatives, not amounting to and not intended as recognition. 13

Supra note 3 at p. 88. Kelsen, 'Recognition in International Law: Theoretical Observations' [1941] The American Journal of International Law 35, 607. 15 Supra note 3 at p. 89. 16 H. Lauterpacht , 'De Facto Recognition, Withdrawal of Recognition and Conditional Recognition' in (eds), British Year Book International Law(1st, University of Cambridge, Cambridge 1945). 14

On the other hand, de jure recognition is a type of recognition which derives its inception from the constitution or from the legitimate source. De Jure Recognition can also be termed as the political nuance17, because it is through political motivation or process which leads to the legitimacy of the government. According to Lauterpacht, both de jure and de facto falls under the legal acts.Though this paper restricts itself to the discussion of De facto Recognition only. De Facto Recognition The beginnings of de facto recognition may be traced back to the first quarter of the nineteenth century when the secession of the LatinAmerican Republics confronted Great Britain and other States with the problem of reconciling the practical necessity of recognition with the legitimist pretensions of Spain and Portugal. The solution was found in a measure of de facto recognition, the distinguishing feature of which was that it did not purport to express an attitude with regard to the legal merits of the claim to independence and of the title of the parent State.18 In the 19th century there were regular references with reference to de facto government but there are no emphatic instances. The cases of Civil war, especially in African continent, has shown few instances of De facto recognition. In this conduit, Sierra Leone is the most apt example. It was between Multi party constitution and Revolutionary United Front (RUF) Rebellion where government of Sierra Leone provided the legitimacy to the rule of RUF leading to the first major event in African history of De Facto recognition. Similar events also took place in case of Rwanda also. The Civil war of 199094 was the most devastating one wherein dilapidating the whole nation economically and socially leading to the Civil War. And this Civil war lead to the severance of Rwanda wherein one part was governed by the recognised government (de jure) and the rest was Rwandan Patriotic Front (RPF) which was, indeed, Government of De Facto recognition. In the 21st century also, there are many instances which lead to the Government with De Facto recognition. Instances of the Ivorian election crisis of late 2010 marked the beginning of an interstate conflict between the seated government under President Laurent Gbagbo

17 18

Ibid at p. 164. Ibid at p. 165

and the regime under the contested winner of the elections, Alassane Ouattara.19 Clashes between the forces loyal to the two men resulted in the death of more than a thousand and the displacement of over a million persons. Under the influence of measures taken by the international community, Ouattara's regime was later installed as the Ivory Coast's official government.' In 2011, Libya was in the grip of a civil war between forces loyal to the seated government under Moammar Gadhafi and opposition forces seeking to depose him. These opposition forces had organized themselves as the 'National Transitional Council' ('NTC'), controlling large parts of the Libyan territory In its struggle to become Libya's official government, acts by international actors have played an important role. And the recent case of Egypt which was for some time rules by the de facto government that was lead by the Muslim Brotherhood. Also the case of Ukraine, when then President Viktor Yanukovic, fled the country in turmoil, for some time nation was governed by the temporary government, which could be termed as the de facto government.

Theories of Recognition There are two theories on the nature, effect and function of recognition.20One is Constitutive theory and other is Declaratory theory. Constitutive Theory sets out that it is the recognition of an entity as a State that makes it so. This theory, however, fails to explain why certain entities that have received numerous recognitions as such are not in fact States. It also raises the question of how many recognitions are necessary in order for an entity to become a State. One clear example of this problem is the “State of Palestine”. As of July 2011, the Palestinian Liberation Organization (PLO) was reporting that it had received at least 122 recognitions of its “Statehood” and recently has been allowed by the UN as the Observant Member21. 19

Allan little, Q&A, Ivory Coast dCrisis' BBC(Nwt (London, 13 April 2011)<www.utrechtjournal.org/article/download/ujiel.ay/25> accessed 25 April 2014. 20 J. Starke, Introduction to International Law, 91, 14981 (8th Edition 1967). 21 J.M.Davids, ‘What makes a State’. accessed on 27 April 2014.

Whereas on the other hand, the declaratory theory provides that the moment in which an entity satisfies all the conditions set out in the Montevideo convention the entity is a State. This theory is close in line with the convention itself and the pronouncements of Articles 3 and 6. It however fails to adequately describe the creation of “States” in international practice.22

Legal Rights and Obligations under De facto Recognition The identity of international actors their international legal personality is of central importance in determining how international law applies to them. Therefore it become imperative for the International legal system to determine whom it endows with the rights and duties and whose actions it takes into consideration by attaching legal consequences.23 1.Adherence to International Humanitarian Law International Humanitarian Law is defined as “a set of rules which seek, for Humanitarian reasons, to limit the effects of armed conflict. It protects the persons who are no longer participating in the hostilities an restricts the means and methods of warfare”.24 In normal circumstances, De facto recognition often originate and exist in situations of (internal) conflict, with the opposing party usually being the parent state's government or another nonstate entity, IHL deserves special attention as it includes basic and universal norms of international law which are often relied upon in situations of armed conflict which is

22

Ibid 20. J. V. Essen, 'De Facto Regimes in International Law' [2012] MerkouriosUtrecht J. Int'l & Eur. L. 31, 34. 24 ICRC, ‘What is International Humanitarian Law?’ [2004] accessed 27 April 2014. 23

provided under Article 325 of the Geneva Conventions and its additional Protocols. And De facto recognition are bound to follow them. 2. Following the Peremptory Norms Each State is under the obligation to follow the principles Jus Cogens and cannot afford to derogate from it in any sense. This applies to the De facto Recognition also. 3. Prohibition of Use of Force In addition to Jus Cogens,'the prohibition of the use of force, is setted out in Article 2(4) of the UN Charter, which expressly prohibits the 'threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nation26.

Conclusion

25

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. 26 1945 Charter of the United Nations, 1 UNTS XVI, Article 2(4).

The concept of Recognition is of the pivotal importance in International Law. It helps in understanding the exigencies related to the functioning of a State under various circumstances and it also outlines the Rights and Liabilities against other States. It provides the basis for the State to act and comply with certain factors which could be both Internal as well as External. De facto Recognition assumes the importance because it attracts the provisions of International Humanitarian Law, International Criminal Law and also Domestic Laws, which are concomitant for the peaceful, orderly and stable functioning of State. But it is followed by a drawback that it does not provide the exhaustive option to the State in instances of breach of inviolability of the State. This conclusion is premised upon recent breach of international principle of Recognition. For instances, the Crimean annexation by Russia, Egyptian turmoil leading to dilapidation of national economy, Libya catastrophe etc.. This are the apt incidents where there was prima facie breach of international law and no adequate steps were taken in this regard.