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Prison Reforms and Auditing In India

In the rule of law, advisors sometimes overlook the fact that the State was part of the problem in the first place, and that—seen through a human rights lens—the State still is the problem. A user survey of the justice system in a State is an important component of the assessment process.

In general, citizens of a State want speedy, local, understandable, and affordable resolution—acceptable to all concerned—of their disputes. They want police to keep the public peace and not to act as predators. They may want courts nearby, but they also want them to be user friendly. They may want prisons in which to keep dangerous people safely and securely, but may see the public interest as being better served by providing alternative
sanctions in minor cases (such as community service).[1]

Community police forums

In Indonesia and Bangladesh, the Asia Foundation promotes community-oriented policing (COP). This method of policing reshapes traditional police management and operational strategies by facilitating collaborative working relations between citizens and police, based on a problem-solving approach that is both responsive to the needs of the community and sensitive to the challenges that police face in performing their duties. An improvement in police services nurtures public trust and respect between police and members of the communities they serve; promotes improved communication and collaboration; and contributes to increased public satisfaction with police services—all of which translate into safer communities. The COP programme establishes local community police forums (CPFs) as focal points for dialogue.

A typical CPF includes 20–25 members drawn from police, civil society organizations, and the ranks of local leaders (school principals, teachers, businesspeople, clerics, farmers, and so forth)

They meet once a month and focus in these meetings on the local public security environment. Some CPFs have established subcommittees that mediate in law and order issues; others have established information booths in towns to inform the public about COP and provide general advice on criminal justice. CPF activities include school programmes to raise student awareness and address issues of concern to students. CPFs have established good relations with local media outlets, which cover COP activities and the benefits they have generated.

The impact of COP has been a decline in crime, resulting from collaboration between citizens and police (especially with regard to drugs, gambling, harassment, and other issues of common concern); a high level of community participation by senior local police officers, who have acted on the concerns of the community and listened to their views; a readiness of police to give their time to form CPFs; and a willingness of political parties to set aside their political differences and work together on CPFs.

The programme has stimulated a call in both Indonesia and Bangladesh for the broader adoption of COP by police.[2]

Turkey: Reform of penitentiaries

Turkey has improved its penal system in terms of physical infrastructure, training of staff and legislation. Right to appeal and probation have gained more functionality. Turkey has also amended legislation with the purpose of social rehabilitation, and providing an alternative procedure to pre-trial detention.

Description
  • Beginning from the year 2000, the Turkish penal system has been improved in terms of physical infrastructure, training of staff and legislation.
     
  • An approach respectful to the rights of convicts and detainees has been adopted with regard to enforcement and rehabilitation.
     
  • Within the scope of Law No. 4675 on Sentence Enforcement Magistrature, means of recourse/right of appeal to procedures in the penal institutions gained more functionality by means of Enforcement Magistrature.
     
  • Probation has gained more functionality as an alternative precautionary sanction to detention. Within the scope of probation electronic surveillance is effectively being implemented since February 2012.
     
  • With the purpose of social rehabilitation and re-building of family ties of the convicts in the penal institutions an amendment has been made to Article 105/A of Law No. 5275. Accordingly, the convict shall be released on probation before the date of conditional release. This method of enforcement enables minor convicts, female convicts having a child between 0-6 ages, other convicts suffering from disease, disability or senility, to benefit from the law in a broader aspect.''
     
  • Article 109 of the Code of Criminal Procedure (No. 5271) was amended so that the practice of judicial control, as an alternative procedure to pre-trial detention, would be applicable to all types of crimes. (Judicial control is a/an investigation/prosecution phase practice according to which a person against whom there are reasons for detention enumerated in the article 100 of the said law may be set free with certain restrictions specified in the article 109 of the same law.)

    The said amendment also enabled the application of electronic surveillance regarding measures of staying inside the residence (house), staying inside a certain region of residence (city), prohibition of visit to specific places or regions in addition to the pre-existing measures.

Key results:
  • Since 2006, 171 penal institutions were closed and the number of penal institutions decreased to 359. There are 3517 officers in 131 Directorates of Probation. As of 30/04/2014, the number of controlled and followed convicted persons are 313851. As of 18/05/2015, the number of convicted persons followed with electronic tagging is 9239.
     
  • For the staff of penal institutions, pre-service training, trainee officer training, in-service training, educator training and inter-institution and international trainings are provided.
     
  • In education centers, the numbers of staff trained are as follows: 88895 staff in in-service training seminar, 5984 staff in in-service training course, 7014 staff in trainee officer training, 1620 staff in educator training, 8171 staff in pre-service training, 2223 staff in promotion training, 113997 staff in total.
     
  • In order to enhance international cooperation, 522 officials with different titles from penal institutions of various countries were trained.

Key lessons learnt
  • Adoption of an approach respectful to the rights of convicts and detainees, then implementing a comprehensive and sophisticated strategy on enforcement and rehabilitation were key factors in achieving considerable amelioration of the sentence enforcement system of our country. Along with amendments to the law, staff training and effective employment of technological devices also played a considerable role in improving the quality of the said system.

Other relevant information:
Many European Union projects were successfully implemented by the Directorate General for Prisons and Detention Houses of the Ministry of Justice. Two new projects were approved for the next period.
  1. The Name of The Project: Strengthening Penal Institution Regime and Probation Practices in order to Prevent the Repetition of Offences.
  2. The Name of The Project: Improving Discipline and Award Practices and Increasing the Efficiency of Monitoring Boards for Convicted Persons[3]

How to reduce prison conviction rates

Prison overcrowding is one of the largest problems faced by prison systems today. Poor prison conditions come from surpassing prison capacity rates and lead to a decreased quality of life that compromises prisoners' healthcare, food, privacy and basic living accommodations. The number of prisoners outstrips prison capacities in more than 115 countries around the world, some of the worst in the Americas – El Salvador has a 310% overcrowding rate.[4]

When private companies profit from the construction and administration of prisons, it's easy to see how an increased number of prisoners benefits others. According to Prison Policy.org,[5] the criminal justice system of America holds 2.3 million, and the U.S. prison system currently has a 103.9% occupancy rate, according to Forbes. =

Overcrowding drastically affects the life, health and safety of both prisoners and staff, since it can result in mental health problems and an increased rate of violence, self-harm and suicide. So how can reforms help prisons fulfill their proper functions?

Review and Reform All Processes

One of the first steps is to determine who is in prison and how their needs can be met. Higher incarceration rates of adult males skew data to promote resources in their favor, but the lower percentages of women and children have needs that are unmet and unacknowledged. One major concern is the holding of minors. Nearly 5,000 youth are held in adult facilities according to Prison Policy.org—should law enforcement detain a parent as well? Can they serve their sentence outside of a custodial institution? Data can be used to decide how best to care for prisoners overall based on effective—and cost-effective—bases to create more humane environments.

There are factors at each step in the process of incarceration that can be reformed to reduce the number of unjust sentences for those that commit minor offenses and those based on socially-biased convictions. Settling minor offenses outside of criminal court with informal or restorative justice solutions prevents the system getting bogged down unnecessarily, while investments in social policy can ensure that those facing criminal court also have better access to legal aid before their trials.

The hope is to limit the number of people in prisons to those whose crimes deserve that kind of punishment. Too often, prisons are crowded with those being held before trial without the ability to bail themselves out, those with non-violent or non-serious crimes, and those that could better serve their sentence elsewhere. Frequently, those kinds of prisoners are better off with non-custodial sentences or sentences that do not entirely take place in prison, like discharges, community service, house arrest and halfway houses.

Early Release and Parole

Awarding those with good behavior and/or productive time with early release or parole is a great incentive to create better environments and outcomes for non-violent prisoners who receive education, rehabilitation or treatment. Standardizing and reducing sentence lengths can lower overcrowded prisons by routinely cutting sentences down to more manageable and suitable times. New York and Kansas are currently examining the benefits of early release; however, many states require a minimum sentence length, making it impossible to grant early releases to deserving prisoners.

Mental Illness and Drug Addiction

Because mental illnesses and drug addiction place many in prison—often times as default—rather than in institutions that would actually benefit them and reduce recidivism, it is vital to see where the system can be reformed to help rather than punish those convicts. Most prisons are ill-equipped to meet the needs of individuals who are mentally ill and create more negative effects that could affect the prisoner once released, resulting in re-offending.

Specialist facilities could reduce prison numbers and decrease the likelihood of re-offenses by getting the mentally ill and drug addicts better suited to manage their situations. These prisoners make great candidates for the aforementioned early release programs. New York is in the process of restructuring the state institution to ensure that punishments suit the crimes by reducing minimum sentences for first-time drug offenders and increasing sentences for drug traffickers, rather than treating drug addicts as Class A felons.

Recidivism

Recidivism- the act of re-offending—understandably contributes to high imprisonment rates. Rehabilitation programs and drug and alcohol courses are at the forefront to help those needing recovery assistance. New York has found that these types of programs are 15 times more effective than basic imprisonment and those released commit two-thirds fewer crimes. California's mass forgiveness program released prisoners by the thousands. Those non-violent prisoners who were mass-forgiven and participated in the realignment plan were not inclined to repeat past crimes or get involved in violent behavior.

Accounting Wrongful convictions

The Supreme Court last month refused to entertain a joint plea by six persons who sought compensation for their wrongful arrest in the[6] Akshardham terror case from 2002. They were prosecuted and incarcerated for more than a decade and were acquitted some time ago by the same apex court.

The apex court's dismissal of the plea has major implications for the human rights movement in India. It virtually sanctions the continuation of the impunity with which the police and intelligence agencies indiscriminately arrest Muslim youth (on charges of ‘Islamic terrorist' links), and tribal men and women in Chhattisgarh and other areas (accusing them of Maoist links). It provides them with immunity against the punishment that they deserve for their ham-handed policy of persecuting innocent citizens.

Curiously enough, while one Supreme Court bench acquitted the victims of such police persecution, another bench refused to grant them the right to compensation for their unjustified incarceration. What explains the inconsistency in the two judgments? The six persons who sought compensation were accused in the Akshardham terror attack in Gujarat in 2002. After spending some 10 years in prison, they were acquitted by a Supreme Court bench in 2014 in response to their appeal against their conviction. The bench comprising justices A.K. Patnaik and V. Gopala Gowda held that the prosecution failed to establish their guilt beyond reasonable doubt and they deserved exoneration from all the charges.

Thus, it was apparent that these six were prosecuted through fabrication of evidence by the Gujarat police, which had already acquired notoriety for alleged false encounters. Following their acquittal, the six approached the Supreme Court again, seeking compensation from the state for their wrongful incarceration all these years.

As their counsel, the veteran advocate K.T.S. Tulsi rightly told the bench:
The apex court gave them back freedom but who can give them back the 10 years they spent behind bars for no fault? The state must adequately compensate them as it violated the right to life brazenly.

But some of the honourable judges of the apex court do not, apparently, share this view. A bench of justices Dipak Misra and R. Banumathi, in their July 5, 2016 judgment, rejected the appeal for compensation on the grounds that acquittal by a court did not automatically entitle those acquitted to compensation and if compensation is to be awarded for acquittal, it will set a dangerous precedent.

The first ground is spurious, to say the least, since well-qualified judges can always make a distinction between those who deserve compensation, and those who do not. The second argument, posited by these honourable judges, is in fact more dangerous. It has far reaching consequences, and implies that the state can get away with irresponsible acts like hauling up innocent citizens on charges of terrorism, and putting them behind bars for years, (or in extreme cases, like its police killing them in false encounters).

The victims who survive and manage to get themselves acquitted, do so through the arduous and expensive process of appealing from one lower court to another higher court, till they reach the Supreme Court.

And if they are lucky, their case is heard by a bench that is discerning enough to examine the evidence and establishing their innocence. Not all benches are as discerning. The fate of hundreds of innocent people languishing in jails for years on charges of ‘Islamic terrorism' or ‘Maoist extremism', hinges on the dispassionate and independent verdict of our honourable judges. Are they fast enough in the delivery of justice, to save these young souls from the agonising experience of incarceration which they do not deserve?

From the bottom to the apex
While repeating the age old cliché, justice delayed is justice denied, we should also note that in many cases the apex court itself is responsible for the delay. When complainants appeal directly to it for redressal, its advice is, more often than not, to approach the local high courts first. But, many of the judges of these subordinate courts betray their own upper-class, orthodox , casteist and religious prejudices, by passing adverse judgments against complainants coming from Muslim, Dalit or underprivileged classes, and acquitting their persecutors, who usually belong to the same class and caste that the judges come from.

Nothing has changed at this level of the judiciary since that infamous verdict delivered by the judges of the Madras high court, who acquitted the upper-caste landlords accused of killing 42 Dalit labourers (including women and children by setting fire to their hut) in Kilvenmani in Tamil Nadu in 1968.

Their excuse for acquitting them was: Most of them (the accused) were rich men…. It was difficult to believe that they would walk bodily to the scene and set fire to the houses.

In a replication of that utterly despicable judicial mindset, the Patna high court was also found acquitting upper caste landlords who were held guilty by the lower courts of lynching Dalits in Bihar villages. Its recent judgments relate to two cases: the massacre of Dalit women and children and Muslims, in Bathani Tola in Bhojpur district on July 11, 1996 (by a Hindu upper-caste militia of landlords, called the Ranvir Sena) and a similar massacre of Dalits (by the same outfit) in 1997 in Lakshmanpur Bathe, where the death toll reached 58.

In the first case of Bathani Tola, the honourable judges of the Patna high court in 2012 acquitted all the 23 accused, dismissing the evidence of the witnesses who escaped the massacre as ‘totally unreliable.' Curiously enough, in defence of their verdict, these judges chose to rely on the submission by a police sub-inspector, under whose watch the massacre took place. The policeman naturally, to protect himself, gave a different account of the event in order to impress the court.

But how could the judges accept this version of the sub-inspector who was suspended at the time for his negligence and possible complicity in the Bathani Tola killings?

The second case of the Ranvir Sena's massacre of Dalits in Lakshmanpur Bathe in 1997. The trial court convicted several from among the accused. But an appeal from these convicted persons led the Patna high court to reverse their convictions, leading to their acquittal. The victims of this act of injustice have approached the Supreme Court. Whether the apex court overrules the acquittals by the Patna high court, and reconfirms the conviction of the accused, depends again on the mindset of the judges who preside over the bench.

Flawed judicial hierarchy
The inconsistency in verdicts delivered by different sets of judges (as evident from the frequent overturning of a lower court judgment by a higher court, as also of differing judgments by two benches in the same Supreme Court), shows how flawed the structure of our judicial system is.

The system is run by judges who are not professionally equipped enough to separate the wheat from the chaff while examining evidence. While delivering verdicts, these judges may be guided by their personal beliefs and prejudices (religious, national, jingoistic or otherwise), or by their faith in the police which frames charges against easily available innocent targets.

The most infamous instance of such a judgment was in 2013, when Afzal Guru was sentenced to death by hanging. The apex court's excuse for hanging him was atrocious and injudicious: the …collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.
  • By what measure did the honourable judge assess the collective conscience of ‘the society'?
  • Which society? Is our society a homogeneous unit?
  • Besides, even if the ‘society' of Sangh parivar leaders and their middle class supporters whipped up a mob frenzy demanding the death penalty for Afzal Guru, should the apex court have succumbed to their claim as representatives of a collective conscience?
  • Should it not have dispassionately examined the evidence, which from all accounts, indicated that Afzal Guru's participation in the actual conspiracy was debatable?
At the receiving end of such judicial arbitrariness and irresponsibility are the families of the innocent victims of persecution, hounded by a vengeful police force and an inefficient, corrupt intelligence apparatus.

Miserably failing to apprehend the real terrorists, they pick up mainly the youth from the Muslim community as an easy recourse to claim that they have foiled some so-called ‘Islamic terrorist' conspiracy. For the victims, their parents and relatives, appeals through the various steps of the judicial hierarchy to get acquitted are not only an expensive, time-consuming process, but also a nerve-racking experience. The same experience is suffered by the families of poor, tribal youth in Chhattisgarh, Jharkhand, Andhra Pradesh and other states, when they are picked up on charges of Maoist extremism.

In the course of such laborious judicial proceedings, a judge may decide after decades that a prior conviction by a lower court needs to be reversed. The plight of these victims of judicial injustice at the primary stage has been recorded in two important books. The first is Framed, Damned, Acquitted:Dossiers of a ‘Very' Special Cell, a report by Jamia Teachers' Solidarity Association which documents 16 cases where young Muslims were arrested on the charge of being terrorists, between early 1990s and mid 2000s. On different occasions they were produced before the Patiala House courts in Delhi, which remanded them to police custody or Tihar Jail, where many spent more than a decade under trial, before being acquitted by the high vourt.

The second book is Prisoner No. 100: An Account of My Nights and Days in an Indian Prison, by Anjum Zamarud Habib, a young Kashmiri woman, a political activist, who was arrested in Delhi in 2003, and sentenced by judge Ravinder Kaur of the Prevention of Terrorism Act (POTA) court to a five-year jail term. The POTA court, in the same Patiala House courts premises, had earned notoriety for sending innocent people to jail.

She challenged the judgment in the high court which finally released her in December 2007. Recalling her experiences, Anjum says, I am a free person today but the wounds and scars that jail has inflicted on me are not only difficult, but impossible to heal.

Similar is the sentiment echoed by Syed Maqbool Shah, whose account can be found in Framed, Damned, Acquitted. He was accused by the police in the 1996 Lajpat Nagar blast case in Delhi and after having spent 14 years of his precious youth in Tihar Jail, was acquitted by the Delhi high court in 2012. Now that he is released, he says, I don't know what to do. I have no job and no hope of getting any.

Accountability through punishment

In the current debate over the mode for appointing judges, what is often ignored is the basic need for a mechanism in our judicial system that would penalise those agents of prosecution and of justice (the police, the public prosecutor, the magisterial and higher courts) who are proven to be irresponsible and biased in carrying out their respective duties. They should be made to pay the price for decisions that ruin the lives of thousands of innocent people. Apart from the occasional mild punishment, like temporary suspension or transfer of errant policemen, there is a need to bring them to trial and impose punishment worthy of falsely implicating citizens.

Errant judges also need to be held accountable in the courts. For instance, the lower court judges who convicted and sentenced six people for their alleged involvement in the 2002 Akshardham terror attack in Gujarat, were ultimately proved to be wrong, as is apparent from the Supreme Court judgment that acquitted them. But the convicted men had to spend about a decade in jail. Should not the Gujarat high court judges pay a penalty for their failure to examine the evidence in its entirety, before hastening on a sentence? Surely it was due to judicial irresponsibility that the six accused had to languish in jail for years.

Given these gross oversights, may I suggest that our honourable judges take lessons from the film Judgment at Nuremberg by Stanley Kramer, in 1961? It is a film based on the records of the trial of the judges of Nazi Germany at the international court which was set up at Nuremberg in 1945-46 for the purpose of bringing Nazi war criminals to justice. The war criminals included 16 German jurists and lawyers, out of whom 10 were found guilty of various crimes ranging from anti-Jewish bias to currying favours with the ruling Nazi government. Their sentencing was based on evidence from the survivors of their prejudiced judgments. The courts exposed their complicity with the ruling regime and their racist bias against Jews.

But then, how many of our Indian judges, whether at the lower or higher levels, have heard of the Nuremberg trials? How can we sensitise them to the humanitarian needs of those brought before them as accused by an unscrupulous police force? How can we ensure that biases of one kind or another play no role in judicial pronouncements?

End-Notes:
  1. Deepa Narayan, Voices of the Poor: Can Anyone Hear Us? (New York: World Bank, 2000), 249–64
  2. A film of COP in Bangladesh is available on the website of the Asia Foundation (Bangladesh). See http://asiafoundation.org/media/view/video/Yj0Y9UkICYg/community-oriented-policing-in-indonesia
  3. UN Document repository :National best practices pg 63https://www.un.org/ruleoflaw/blog/portfolio-items/turkey-reform-of-penitentiaries/
  4. Penal Reform.org reports.
  5. Prison policy reforms
  6. Adambhai Sulemanbhai Ajmeri & Ors vs State Of Gujarat on 16 May, 1947
Written by: Syed Shabaz S, Graduated of BA.LLB (5years) - Legal Counsel, DG Institute Financial Services, Sydney, New South Wales, Australia
Email:[email protected]
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