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Prison Reforms In India

Prison reforms in India are a much debated subject matter and have been the point of discourse for many Committees appointed by the Government of India. However, despite many suggestions made on multiple occasions, the ground-level situation with respect to Prison reforms remains gloomy and stagnant. This paper seeks to study the evolution of prisons in India from the middle of the nineteenth century and the various challenges in the Prison institutions in India and their reform.

Introduction
Unchi Diwaron Ke Peechhey Lohey Ki Salakhon Kay Andar Rehtey hain Muqaffal Kuch Insan Insan Jo Nahi Ik Ginti hai 2

(Locked behind High walls and Iron walls , An unfortunate human world slumbers Here they have lost even their names, And now they are just a roll of numbers)

Imprisonment is the final stage of the Criminal Justice Process. It simply means the curtailment of the liberty of an individual as a punitive measure for crime committed by him. However, when we talk of the persons lodged in prisons , we are not simply talking about those whose cases have been decided resulting in a conviction but also those persons whose cases are still being heard by the court of law.Such persons are denoted by the term undertrials. Besides convicts and undertrials, innocent children may also be housed within jail premises in case either or both the parents are inmates and there is no person to look after them. Usually children below four to six years of age are placed inside prisons in accompaniment of their parents.

Having talked about an indicative group of persons that we may encounter as jail inmates, our core discussion revolves around some key standards of treatment to jail inmates that are universally recognized. These form the minimal principles recognized globally comprising of the entitlements of prisons as human beings in the peculiar situations and terms of confinement. Judging by the degree of their presence or absence , we deliberate on the necessity and progress achieved by India in reforming prisons and thus transforming them from "abodes of the condemned" to "training for a new beginning." Thus , we must at the outset understand the requirements of dignified treatment of Prisoners as co- human beings emphasized by the International Law.

International Law On Prison Standards
Key instruments that reflect the consensus of the International community press for minimum prison standards specifically the rights of prisoners.The International Covenant on Civil and Political Rights lays special emphasis on the rights of prisoners. India ratified the convention in 1979 and thus it is imperative to incorporate these standards into the municipal law .Article 10 of the ICCPR deserves to be reiterated here.3
  1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
  2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
    (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
  3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.
Apart from the ICCPR , the ICESCR or the International Covenant for Economic , Social and Cultural rights , 1966 also voices the rights of prisoners. This means that the international community not only recognizes first generation rights of prisoners but also the second generation rights that are the main concern of the ICESCR. Both ICCPRC and ICESCR reflect the spirit of the Universal declaation of human rights or the UDHR , 1948.

Since the Second World War, human rights have been quantified and set down in treaties and conventions. In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. Later, two covenants were adopted, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 4

Another landmark development on the international level has been the UN Standard Minimum Rules for the Treatment of Prisoners, 1955 comprising of 95 rules pertaining to prison standards.Theses comprehensive rules have been classified into 5 parts. A significant contribution of these rules has been the emphasis on respecting the religious belief and moral principles of prisoners along with the principle of non-discrimination.

The instrument also talks about the necessity of segregation of various categories of prisoners such as men and women , undertrails and convicted inmates, young /child offenders and adult inmates inter alia while stressing on the separation of those held under civil laws and those lodged under criminal laws.

The Basic Principles for Treatment of Prisoners 1990 of the UNO and Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988 also strength the rights-oriented position vis a vis prisoners under international law. These particularly mandate that prisoners must be informed of the charges alleged against them , especially in cases of corporeal punishment . 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.5

Thus , it has been amply indicated that the approach of international law is rights-oriented when it comes to the question of prisoners.

History Of Prison In India
Macaulay's Minute of 1835 laid down the foundations of Prison system in India as we see it today. Subsequently ,a Committee called the Prison Discipline Committee was set up to look into the prison system in India. The Committee submitted its report in 1838 recommending the rigorous treatment of inmates rejecting humanitarian needs and reforms.This development has to been seen in the context of an imperialistic foreign rule.

In the same period , the Construction of the Central Prisons began pursuant to Macaulay's Minute and advanced rapidly between 1836 and 1838).Contemporary Prisons in India are thus, a legacy of the British as they still stand continuing their nearly two hundred year old function.

The enactment of the Prison's Act in 1861 and 1894 mark yet another landmark event in the history of Prisons in India. This colonial law forms the basis for the present jail management and administration. The review of Prison problems that had preceded the Act was continued afterwards also.In 1919-1920 the Indian Jail Committee for the first time in India's colonial history declared reform and rehabilitation to be the objectives of Prison administration. This legacy was carried on by many post-independence committees.

A key change that was introduced during colonial times was the vertical division of legislative and executive powers made by the Government of India Act , 1935.This law transferred the subject matter of "prisons" from Central list to State list.

The significance of this event lies in the fact that in the post independence era this division of powers gave rise to non-uniformity in Prison laws and management across various States of India. In 1951 Government of India invited a UN expert , Dr Reckless to study jails in India and suggest management and policy reforms.Dr. Reckless submitted his report entitled," Jail Administration in India" and pleaded for reforms and revision of the outdated jail manuals.

Modern Prison Manual
In 1957 An All-India Jail Manual Committee was appointed by the Government of India to prepare a Jail Manual which submitted its report in 1960. This forms the bedrock of Prison management in India until today.In 1972 , the Union Home Minister appointed a Working Group to make suggestion with respect to prison management in India . The Group made recommendations to frame a much-needed National Policy on Prisons and classification of Prisons lodging different categories of inmates.

The Committee on Jail Reforms under Justice Mulla was set up by the Government of India in 1980 to review the laws, rules, regulations for protecting society and reforming offenders. The Mulla Committee submitted its report in 1983 . The problems highlighted by the Committee and the reforms suggested by it are relevant even today and preponderate in any discourse on Prison reforms in India.

It suggested that the Government is duty bound to provide dignified living Conditions for Prisoners and gave a humanitarian opinion vis a vis prison reforms that had hitherto been focusing more on security aspects. The Justice Krishna Iyer Committee of 1987 taking a similar stance highlighted the plight of women prisoners and emphasized the need to induct more women in the Police Services and management to inculcate a gender- sensitive approach in prison management.

Later on , The National Police Commmission made a recommendation in 1977 to overhaul the legislative framework by enacting a new Police Act to replace the two hundred year old Police Act of the nineteenth century.

Challenges In Indian Prison System
The forthcoming section of this article deals with the main problems besetting the India Prison management and administration. The main problem in India Prison System is that ever since the laying down of the foundations of this system around two hundred years have gone by. Not only has the social structure and life of the individuals changed over this period but the population of the country has also grown manifold. Today India is the second most populous country in the world.This is when the infrastructure of our prisons , the brick and mortar has served its time. It is nnedful to upgrade the existing prisons and set up new ones because the existing infrastructure is overflowing its capacity resulting in overcrowding.

The saturation of prisons has been found to be over 100% in some of the prison establishments and in some extreme cases to the percentage of over 500% of the total capacity .This overcrowding aggravates the gross living conditions within jails leading to grave violations of inmates' human rights.The unsatisfactory living conditions affect every aspect of inmates daily existence such as food, cleanliness, etc. The prisoner already reeling under social stresses around this time is thrust forward into a battle with the tensions of jail life.As a result the health , both mental and physical , of the prisoner suffers.

The inadequacy of prison programs further aggravates this situation. The lack of proper legal aid and abuse of authority by the staff who sometimes take unfair advantage of the prisoner's dependency and make unwarranted demand in lieu of fulfilling basic needs of the prisoner such a sfood , even to the degree of demanding sexual favours. The staff also indulge in corruption and extortion , this more than often benefits the privileged inmates with powerful networks of criminals backing them.

In concert with these corrupt staff , the powerful inmates enjoy all kinds of illegal luxuries whereas the poor are discriminated against because they do not have to their credit similar patronage.This highlights the discrimination between inmates in jail.The Mulla Committee had therefore, stressed on safeguarding the rights of the economically backward inmates with much emphasis. The staff that do not indulge in corruption face problems too due to inadequacy of human rights training.

The result of these problems is that the inmates upon release are not prepared to re-intergrate wih the society. The reformation of the prisoner which is the main objective of todays punitive institutions is undermined. Also the health of the inmate suffers tremendously. It has been seen that the rate of disease incidence such as HIV-AIDS and Tuberculosis is many times greater in prison populations compared to the general populations.

This problem does not only involve the physical health but also the mental health of the inmates. It was found by a study done by NIMHANS6, Bengaluru in 1998 in the Central Prison in Bengaluru that the suicide rate among women inmates was fifty percentage points higher than the incidence of suicide among women in the general population. This revealed that women are often more vulnerable to extremely challenging situations within the prison walls.

Judicial Approach In Prison Reforms
Supreme Court has taken disparate approaches due to judicial subjectivism. However the main philosophy that can be discerned from the judicial judgments is that:
every saint has a past and sinner has a future.

The Court has taken a reformative approach in many important judgments giving a boost to the discourse on prison reforms.

Therefore, in Sunil Batra v. Delhi Administration 7, the Court held that the Priosn is not denuded of all human rights upon entering the prion premises even as his right to liberty is fundamentally curtailed.However this must not ipso facto prejudice his other fundamental rights. In M H Hoskot v State of Maharashtra8 , it was held that the state is duty bound to ensure that the right to free legal aid under Article 39A is made available to the prisoner.In Prem Shankar v. Delhi Administration9, it was held that handcuffing is prima facie an inhumane practice. In Ghiassudin Case10 , it was held that prison institutions must serve a therapeutic role to cure social morbidity in the prisoner's guilt.

In State of Gujrat v Hon'ble High Court of Gujrat11 , it was held that the prisoners are entitled to minimum wages for the work done inside the prison and must enable them to prepare for integration in the society upon release.

Critical Analysis Of Challenges In Prison Reforms
There are around 1387 Prisons in India with a capacity of over 3.5 Lakh. However, the total inmates occupying these establishments account to the rune of 4.18 Lakh .Moreover, around 64% of the inmates in all the jails are undertrails. Therefore, the first challenge that arises from both human rights perspective and internal security point of view is the upgradation of infrastructure. Thus can be done through improvement in budgetary allocations to the prison establishments. We have seen that under the recently launched modernization of police forces scheme, the utilization of funds has been as tardy as the allocation of them.

Secondly, prisons are a state subject , this creates difficulty in having uniform prison management. The Union can only frame models for the states to incorporate and help in coordinating between states , encouraging them to adopt best practices.

Thirdly and most importantly , prisons do not have voting rights as per the present Election law in India. Therefore , prisoners are not a political constituency for the ruling class and hence , remain irrelevant politically. Unless this changes , it is in fact very difficult to imagine any reform will be forthcoming with tangible results . This is because the provisions of the Representation of People's Act excluding prisoners from the right to vote disincentive the political class from taking concrete action for prison reforms.

Fourthly, the poor treatment meted out to prisoner's poses a very serious challenge internationally given that India's requests for extradition have on multiple occasions been declined due to the apprehension that once extradited , the offenders might be subjected to torture and inhumane treatment in Indian jails. This stalled the extradition of Neils Holck alias Kim Davey accused in the Purulia Arms Drop Case by the Netherlands Government .Likewise the repatriation of Sanjay Chawla by the UK, Karamjit Sigh by the European Court of Human Rights are some instances. The Government of India must take corrective steps at home and beyond.This can be addressed by ratifying the Convention against Torture. India has been criticized for having lingered too long in fulfilling the ratification of the Convention.

Finally , Key Judicial verdicts have broadly defined the contours of prisoner's human rights that must necessarily be ensured . These must be protected by checking systemic lapses and implementing the recommendations of the various committees set up the Government of India for the past decades. The recent case of Stan Swamy (2021) where he being a specially challenged and elderly inmate was not ensured the use of a sipper for drinking water warranted by peculiar conditions of health that did not permit him to hold a glass of water, the said inmate had to vindicate his rights only after approaching the court of law. This should not be necessary if the prison management makes sure that prioner's basic needs are met especially where the inmate is undergoing special condition of health.

The question of Children accompanying parents in jail lodgings because they have nobody else in the world to take care of them is a glaring example of human rights violation in jail premises. Children of a very tender age upto four or maximally six years of age learn and live within the jail premises inspite of being innocent and get acquainted with the law and order lexicon and most often learn abusing and cursing at a very young age . They never go out and there most nascent childhood is spent in the jail which become their earliest memories for a lifetime.Even where the children are taken outdoors to parks or playgrounds, they are conveyed in ambulances and police vans. This needs to be changed by allocating budget and also incorporating a child-sensitive approach in the policy and rules as a compulsory requirement.

Conclusion
Beginning with the Mulla Commmittee, many important Committes such as the Malimath Committee, The Justice Krishna Iyer Committee and most recently , the Justice Roy Committte (2018) have been set up to review the situation of prisons in India and suggest reforms. However, the implementation of the reforms has been lax and the necessary political will to bring a change is invisible.It is imperative governments realize the importance of every human life by valuing and cherishing the potential of jail inmates as members of our society who can contribute in the future, given proper correctional and reformative treatment.

The policy worldwide is tending towards the open jail systems and rehabilitation of Prisoners. India must take concrete steps to fill up the policy and legal lacunae and approach the problem with as much a humanitarian angel as an objective relevance for the state. Finally, every human life is valuable and deserves the dignity owing to it. Thus, violation of human rights cannot be condoned even as we face practical challenges in protecting the same. End-Notes:
  1. Rameen Rashid Khan LLM 1st semester (Batch 2020
  2. Report by the All India Committee on Jail Reforms vol 1 pi (1980-1983)
  3. available at https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx last seen on 11/03/2021 at 6.28pm IST
  4. Hernán Reyes "HIV in Prisons: A reader with particular relevance to the newly independent states", chapter 2, pp.9-18, World Health Organization-Europe "HIPP" (Health in Prisons Project), 2001
  5. Principle 1 , Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988 available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/DetentionOrImprisonment.aspx last seen 11/03/2021 at 6.56 pm
  6. available at https://nimhans.co.in/wp-content/uploads/2019/06/Prison-study-Report.pdf last seen at 11/03/2021 at 10.16 pm
  7. (1978) 4 SCC 409
  8. (1978) 3 SCC 544
  9. 1980 SCR (3) 855
  10. Mohammad Giasuddin v State Of Andhra Pradesh 1977 AIR 1926
  11. available at https://indiankanoon.org/doc/199405/ pdf last seen at 11/03/2021 at 10.16 pm

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