lawyers in India

Taking Prisoners Rights Seriously

Written by: Saurbh Kothari - 3rd year, B.B.A. LL.B. - National Law University, Jodhpur
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  • Less than 200 years ago, the attitude to prisons, prisoners and punishment was brutal and barbaric. Recognition of the human being in the convicted offender is an idea that has been accepted after a long struggle with the state.

    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 dignity. Even the prisoners have human rights because the prison torture is not the last drug in the Justice Pharmacopoeia but a confession of failure to do justice to living man. For a prisoner all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment.

    Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatments to any person whether he is a national or foreigner. Any violation of this right attracts the provisions of Article 14 of the Constitution which enshrines right to equality and equal protection of law. In addition to this, the question of cruelty to prisoners is also dealt with specifically by the Prison Act, 1894. If any excesses are committed on a prisoner, the prison administration is responsible for that. Any excesses committed on a prisoner by the police authorities not only attracts the attention of the legislature but also of the judiciary. The Indian judiciary, particularly the Supreme Court in the recent past has been very vigilant against encroachments upon the human rights of the prisoners.

    Right to Legal Aid

    The talk of human rights would become meaningless unless a person is provided with legal aid to enable him to have access to justice in case of violation of his human rights. This a formidable challenge in the country of India’s size and heterogeneity where more than half of the population lives in far-flung villages steeped in poverty, destitution and illiteracy. Legal aid is no longer a matter of charity or benevolence but is one of the constitutional rights and the legal machinery itself is expected to deal specifically with it. The basic philosophy of legal aid envisages that the machinery of administration of justice should be easily accessible and should not be out of the reach of those who have to resort to it for the enforcement of their legal rights. In fact legal aid offers a challenging opportunity to the society to redress grievances of the poor and thereby law foundation of Rule of Law.

    In India, judiciary has played an important role in developing the concept of legal aid and expanding its scope so as to enable the people to have access to courts in case of any violation of their human rights. In the case of M.H. Wadanrao Hoskot v. State of Maharashtra, the Court held that the right to legal aid is one of the ingredients of fair procedure.

    If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, for want of legal assistance, there is implicit in the court under article 142 read with article 21 and 39-A of the Constitution, power to assign council for such imprisoned individual for doing complete justice.Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so required, assign competent counsel for the prisoners defense, provided the party doesn’t object to that lawyer.

    Right to Speedy Trial

    Right to speedy trial is a fundamental right of a prisoner implicit in article 21 of the Constitution. It ensures just, fair and reasonable procedure. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less right of accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.

    In the case of Hussainara Khatoon v. State of Bihar , a shocking state of affairs in regard to the administration of justice came forward. An alarmingly large number of men and women, including children are behind prison bars for years awaiting trial in the court of law. The offences with which some of them were charged were trivial, which, even if proved would not warrant punishment for more than a few months, perhaps a year or two, and yet these unfortunate forgotten specimens of humanity were in jail, deprived of their freedom, for periods ranging from three to ten years without as much as their trial having commenced.

    The Hon’ble Supreme Court expressed its concerned and said that:
    What faith can these lost souls have in the judicial system which denies them a bare trial for so many years and keeps them behind the bars not because they are guilty; but because they are too poor to afford bail and the courts have no time to try them.

    One reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is our highly unsatisfactory bail system. This system of bail operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the magistrate about their solvency for the amount of the bail and where the bail is with sureties as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties.

    In Hussainara Khatoon (II) v. Home Secretary, State of Bihar, the Court while dealing with the cases of undertrials who had suffered long incarceration held that a procedure which keeps such large number of people behind bars without trial so long cannot possibly be regarded as reasonable, just or fair so as to be in conformity with the requirement of Article 21.

    In Mathew Areeparmtil and other v. State of Bihar and other, a large number of people were languishing in jails without trial for petty offences. Directions were issued to release those persons. Further the court ordered that the cases which involve tribal accused concerning imprisonment of more than 7 yrs. should be released on execution of a personal bond. In the case where trial has started accused should be released on bail on execution of a personal bond. In case where no proceedings at all have taken place in regard to the accused within three yrs., from the date of the lodging of FIR, the accused should be released forthwith under S.169 Cr. P.C. if there are cases in which neither charge-sheet have been submitted nor investigation has been completed during the last three years, the accused should be released forthwith subject to reinvestigation to the said cases on the fresh facts and they should not be arrested with out the permission of the magistrate.

    In the case of Raj Deo Sharma v. The State of Bihar, the question before the court was whether on the facts and circumstances of the case, the prosecution against the petitioner is to be quashed on the ground of delay in the conduct of trial. The petitioner has never suffered incarceration. His application for bail was ordered on the day he appeared before the Court and presented the same. Allowing the appeal Supreme Court gave the following directions:
    1. In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not, within the said period and the court can proceed to the next step provided by law for the trial of the case.

    2. In such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit.

    3. If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case.

    In Shaheen Welfare Association v. Union of India and others, the court while delivering its judgment said that: In spite of such review, from the figures which we have cited above, it is clear that there is very little prospect of a speedy trial of cases under TADA in some of the States because of the absence of an adequate number of Designated Courts even in cases where a chargesheet has been filed and the cases are ready for trial.. But when the release of under-trials on bail is severely restricted as in the case of TADA by virtue of the provisions of Section 20 (8) of TADA, it becomes necessary that the trial does proceed and conclude within treasonable time. Where this is not practical, release on bail which can be taken to be embedded in the right of a speedy trial may, in some cases, be necessary to meet the requirements of Article 21.

    Right against Solitary Confinement, Handcuffing & Bar Fetters and Protection from Torture

    Solitary Confinement in a general sense means the separate confinement of a prisoner, with only occasional access of any other person, and that too only at the discretion of the jail authorities. In strict sense it means the complete isolation of a prisoner from all human society.

    Torture is regarded by the police/investigating agency as normal practice to check information regarding crime, the accomplice, extract confession. Police officers who are supposed to be the protector of civil liberties of citizens themselves violate precious rights of citizens. But torture of a human being by another human is essentially an instrument to impose the will of the strong over the weak. Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heel it.

    An arrested person or under-trial prisoner should not be subjected to handcuffing in the absence of justifying circumstances. When the accused are found to be educated persons, selflessly devoting their service to public cause, not having tendency to escape and tried and convicted for bailable offence, there is no reason for handcuffing them while taking them from prison to court.

    In the case of Prem Shanker Shukla v. Delhi Administration, the petitioner was an under-trial prisoner in Tihar jail. He was required to be taken from jail to magistrate court and back periodically in connection with certain cases pending against him. The trial court has directed the concerned officer that while escorting him to the court and back handcuffing should not be done unless it was so warranted. But handcuffing was forced on him by the escorts. He therefore sent a telegram to one of the judges of Supreme Court on the basis of which the present habeas corpus petition has been admitted by the court.
    To handcuff is to hoop harshly and to punish humiliatingly. The minimum freedom of movement, under which a detainee is entitled to under Art.19, cannot be cut down by the application of handcuffs. Handcuffs must be the last refuge as there are other ways for ensuring security.

    There must be material, sufficiently stringent, to satisfy a reasonable mind that there is clear and present danger of escape of the prisoner who is being transported by breaking out of police control. Even when in extreme circumstances, handcuffs have to be put on prisoner, the escorting authority must record contemporaneously the reasons for doing so. The judicial officer before whom the prisoner is produced has to interrogate the prisoner, as a rule, whether he has been subjected to handcuffs and other ‘iron’ treatments and if he has been, the official concerned shall be asked to explain the action forthwith.

    In the case of D.K. Basu v. State of West Bengal, the Court treating the letter addressed to the Chief justice as a writ petition made the following order:
    In almost every States there are allegations and these allegations are now increasing in frequency of deaths in custody described generally by newspapers as lock-up deaths. At present there does not appear to be any machinery to effectively deal with such allegations. Since this is an all India question concerning all States, it is desirable to issue notices to all the State Governments to find out whether they are desire to say anything in the matter. Let notices issue to all the State Government. Let notice also issue to the Law Commission of India with a request that suitable suggestions may be made in the matter. Notice be made returnable in two months from today.

    Custodial torture is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personally. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward. Fundamental rights occupy a place of pride in the Indian Constitution. Article 21 provides no person shall be deprived of his life or personal liberty except according to procedure established by law. Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression life or personal liberty has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice.

    The Court, therefore, considered it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:
    1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags 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 he countersigned by the arrestee and shall contain the time and dale 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 arrestee lives outside the district or town through the Legal Aid Organisation 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 effecting 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.

    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 al the police control room it should be displayed on a conspicuous police, board.

    In the case of State of Andhra Pradesh v. Challa Ramkrishna Reddy & Ors. , the matter was contested by the State of Andhra Pradesh that no damages could be awarded in respect of sovereign functions as the establishment and maintenance of jail was part of the sovereign functions of the State and, therefore, even if there was any negligence on the part of the officers of the State, the State would not be liable in damages as it was immune from any legal action in respect of its sovereign acts. Both the contentions were accepted by the trial court and the suit was dismissed. On appeal, the suit was decreed by the High Court for a sum of Rs. 1,44,000/- with interest at the rate of 6 per cent per annum from the date of the suit till realisation. It is this judgment which was challenged in the appeal.

    The other question which was argued by the learned counsel for the parties with all the vehemence at their command was the question relating to the immunity of the State from legal action in respect of their sovereign acts. Supreme Court dismissed the appeal filed by the State.

    In the case of Ajab Singh & Anr. v. State of Uttar Pradesh & Ors, the court said that: We do not appreciate the death of persons in judicial custody. When such deaths occur, it is not only to the public at large that those holding custody are responsible; they are responsible also to the courts under whose orders they hold such custody.

    The court further said that the State of Uttar Pradesh is responsible in public law for the death and must pay compensation to the petitioners for the same. They shall also pay to the petitioners the costs of the writ petitions, quantified at Rupees ten thousand.

    In the case of Arvinder Singh Bagga v. State of U.P. and Others, the court observed that:
    Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even graver.
    This clearly brings out not only highhandedness of the police but also uncivilized behavior on their part. The Supreme Court issued directions that the State of Uttar Pradesh will take immediate steps to launch prosecution against all the police officers involved in this sordid affair. They further awarded compensation to the petitioners.

    Right to meet friends and Consult Lawyer

    The horizon of human rights is expanding. Prisoner’s rights have been recognized not only to protect them from physical discomfort or torture in the prison but also to save them from mental torture.

    In the case of Sunil Batra(II) v. Delhi Administration , the Supreme Court recognized the right of the prisoners to be visited by their friends and relatives. The court favoured their visits but subject to search and discipline and other security criteria.

    The court observed:
    Visits to prisoners by family and friends are a solace in insulation, and only a dehumanized system can derive vicarious delight in depriving prison inmates of this humane amenity.

    In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others, The Supreme Court ruled that the right to life and liberty includes the right to live with human dignity and therefore a detainee would be entitled to have interviews with family members, friends and lawyers without severe restrictions. Court stressed upon the need of permitting the prisoners to meet their friends and relatives. The court held that the prisoner or detainee could not move about freely by going outside the jail and could not socialize with persons outside jail.

    The court said that:
    Personal liberty would include the right to socialize with members of the family and friends subject, of course, to any valid prison regulations and under Art. 14 and 21 such prison regulations must be reasonable and non-arbitrary.

    In the case of Joginder Kumar v. State of U.P. and others, The court observed that whenever a public servant is arrested that matter should be intimated to the superior officers, if possible, before the arrest and in any case, immediately after the arrest. In cases of members of Armed Forces, Army, Navy or Air Force, intimation should be sent to the officer commanding the unit to which the member belongs. It should be done immediately after the arrest is affected. Under Rule 229 of the Procedure and Conduct of Business in Lok Sabha, when a Member is arrested on a criminal charge or is detained under an executive order of the Magistrate, the executive authority must inform without delay such fact to the Speaker. As soon as any arrest, detention, conviction or release is effected intimation should invariably be sent to the Government concerned concurrently with the intimation sent to the Speaker/ Chairman of the Legislative Assembly/Council/Lok Sabha/Rajya Sabha.

    The person who has been arrested have the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognized by Section 56(1) of the Police and Criminal Evidence Act, 1984. That Section provides:
    Where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is permitted by this section, that he has been arrested and is being detained there.

    These rights are inherent in Articles 21 and 22(1) of the Constitution and require be recognizing and scrupulously protecting. For effective enforcement of these fundamental rights, the court issue the following requirements:
    1. 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 is practicable that he has been arrested and where is being detained.

    2. The Police officer shall inform the arrested person when he is brought to the police station of this right.

    3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.

    It shall be the duty of the Magistrate, before whom the arrested person is produced, to statisfy himself that these requirements have been complied with. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.

    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.

    Whenever during the imprisonment, the prisoners are made to work in the prison; they must be paid wages at the reasonable rate. The wages should not be below minimum wages.

    In the case of Mahammad Giasuddin v. State of A.P. , 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.

    In the case of People's Union for Democratic Rights v. Union of India, the Bench observed thus:
    We are, therefore, of the view that where a person provides labour or service to another or remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words "forced labour” under Article 23.

    In the case of State of Gujarat v. Hon'ble High Court of Gujarat, A delicate issue requiring very circumspective approach mooted before the court. Whether prisoners, who are required to do labour as part of their punishment, should necessarily be paid wages for such work at the rates prescribed under Minimum Wages law. The court has before him appeals filed by some State Governments challenging the judgments rendered by the respective High Courts which in principle upheld the contention that denial of wages at such rates would fringe on infringement of the Constitution protection against exaction of forced labour.

    A Division Bench in the case of Gurdev Singh v. State Himachal Pradesh, the court said that Article 23 of the Constitution prohibits ‘forced Labour’ and mandated that any contravention of such prohibition shall be an offence punishable in accordance with law. The court had no doubt that paying a pittance to them is virtually paying nothing. Even if the amount paid to them were a little more than a nominal sum the resultant position would remain the same. Government of India had set up in 1980 a Committee on jail reforms under the Chairmanship of Mr. Justice A.N. Mulla, a retired judge of the Allahabad High Court. The report submitted by the said Committee is known as ‘Mulla Committee Report’. It contains a lot of very valuable suggestions, among which the following are contextually apposite.

    All prisoners under sentence should be required to work subject to their physical and mental fitness as determined medically. Work is not to be conceived as additional punishment but as a means of furthering the rehabilitation of the prisoners, there training for work, the forming of better work habits, and of preventing idleness and disorder..... Punitive, repressive and afflictive work in any form should not be given to prisoners. Work should not become drudgery and a meaningless prison activity. Work and training programmes should be treated as important avenues of imparting useful values to inmates for their vocational and social adjustment and also for their ultimate rehabilitation in the free community.....Rates of Wages should be fair and equitable and not merely nominal or paltry. These rates should be standardized so as to achieve a broad uniformity in wage system in all the prisons in cash State and Union Territory.

    The court finally gave the following observations:

    (1) It is lawful to employ the prisoners sentenced to rigorous imprisonment to do hard labour whether he consents to do it or not.

    (2) It is open to the jail officials to permit other prisoners also to do any work which they choose to do provided such prisoners make a request for that purpose.

    (3) It is imperative that the prisoner should be paid equitable wages for the work done by them. In order to determine the quantum of equitable wages payable to prisoners the State concerned shall constitute a wage fixation body for making recommendations. We direct each State to do so as early as possible.

    (4) Until the State Government takes any decision on such recommendations every prisoner must be paid wages for the work done by him at such rates or revised rates as the Government concerned fixes in the light of the observations made above. For this purpose we direct all the State Governments to fix the rate of such interim wages within six weeks from today and report to this Court of compliance of this direction.

    (5) State concerned should make law for setting apart a portion of the wages earned by the prisoners to be paid as compensation to deserving victims of the offence the commission of which entailed the sentence of imprisonment to the prisoner, either directly or through a common fund to be created for this purpose or in any other feasible mode.

    Right to expression

    In State of Maharashtra v. Prabhakar Panduranga , the court held that the right to personal liberty includes the right to write a book and get it published and when this right was exercised by a detenu its denial without the authority of law violated Article 21.

    In the case of R. Rajagopal alias R.R. Gopal and Another v. State of Tamil Nadu and Others, the petition raises a question concerning the freedom of press vis-a-vis the right to privacy of the citizens of this country. It also raises the question as to the parameters of the right of the press to criticize and comment on the acts and conduct of public officials.

    The court held that the petitioners have a right to publish, what they allege to be the life-story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But if they go beyond that and publish his life story, they may be invading his right to privacy and will be liable for the consequences in accordance with law. Similarly, the State or its officials cannot prevent or restrain the said publication.

    U.S. Supreme Court in Manna v. People of Illinois once said that life is not mearly animal existence. The souls behind the bars cannot be denied the same. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that Right. A prisoner, be he a convict or under-trial or a detenu, does not cease to be a human being. They also have all the rights which a free man has but under some restrictions. Just being in prison doesn’t deprive them from their fundamental rights. Even when lodged in the jail, he continues to enjoy all his Fundamental Rights. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights.

    The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the citizens.

    Supreme Court has gone a long way fighting for their rights. However the fact remains that it is the police and the prison authorities who need to be trained and oriented so that they take prisoner’s rights seriously.

    The author can be reached at: [email protected] / Print This Article

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    Status of Jails In Punjab:
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    Overcrowding of Civil Jails:
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    Role of Judiciary in Protecting the Rights of Prisoners:
    Judiciary in every country has an obligation and a Constitutional role to protect Human Rights of citizens. As per the mandate of the Constitution of India, this function is assigned to the superior judiciary namely the Supreme Court of India and High courts.

    The Problems of Undertrials:
    Criminal Law of India is a replica of colonial times. It is hostile to the poor and the weaker sections of society.

    Prison Reforms In Indian Prison System:
    Rehabilitation of inmates will be meaningful only if they are employed after release and for that purpose educational facilities should be introduced or upgraded. In many jails, inmates including hardcore criminals and women had joined various courses offered by IGNOU and their respective State Universities.

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