The principle in which India believes is primarily reformation of offenders
and others as prevention, deterrence, retribution is secondary in priority. The
reformation of offenders has been given utmost importance in Indian criminal
jurisprudence and one of the Cardinal principles of criminal jurisprudence in
India is presumption of innocence
, accused to be presumed as innocent until
proven guilty, the presumption of innocence is a basic human right. Subject to
statutory exceptions the said principle forms the basis of criminal
jurisprudence in India, as laid down in landmark judgment of honourable Supreme
Court of India in Ganesan v Rama Raghuraman
(2011)[i] and Kailash Gaur v State
of Assam (2012)[ii].
The situation of prisons in India is not as good as it
should be marching towards an objective and facilitate towards ends on the other
hand it should also be examined how far the Fundamental Rights of undertrials
and convicted prisoners are secured in four walls of the prison.
Relevance of Human Rights
Human Rights are very fundamental; they are rights that are a bare necessity
for the dignified survival of humans. The reflection of human rights could be
seen and felt ensured under Part - 3 of the Indian constitution, from Article -
12 to 35. Human rights are considered as the rights which one is entitled to,
just by being human.
These are rights we have simply because we exist as human
beings - they are not granted by any state[iii]. Article 1 of the United Nations
Declaration of Human Rights states: "All human beings are born free & equal in
dignity and rights. Article 21 of the fundamental law of the land, states no one
shall be deprived of his life and personal liberty except the procedure
established by law [iv].
Prisonisation reflects a system of punishment and also an institution for
placements of undertrials and suspects during the period of trial. The term
prison is derived from the Latin term prensio(n- ) which means laying hold of or
to seize. According to Oxford English Dictionary Prison means a place that is
properly efficient & equipped for the reception of persons who by the legal
process are committed to it for safe custody while pending trial & punishment[v].
As per Collins dictionary "A prison is building where criminals
are kept as punishment or where people accused of a crime is kept before their trial[vi]. Prison is not a new phenomenon; it existed in India in a
well-organized form from the very earliest times. Ancient Indian Jurist Brahaspati laid
great emphasis on the imprisonment of declared guilty offenders in closed
premises, Kautilya was in favour of the prison system but Manu was not. In
India, it was common practice to keep the prisoners in solitary confinement to
afford them an opportunity for self-introspection[vii].
Currently, the prisons
in India are governed by the Indian Prison Act, 1894 and Rules and Regulations
of prisons are laid down in the prison manual of the respective states, due to
prisons being a state subject.
Current status of prisons in India
The prisons in India are not having the adequate infrastructure to subserve the
aim and objective of punishment which is the reformation of offenders. The
evolving criminal jurisprudence now aims at rehabilitation of the offender, for
which our present prison as an institution is ready or not is subject to
introspection, but factually our prisons are overcrowded, lacking adequate
infrastructure, some instances of torture and inhumane treatment of prisoners
National Crime Record Bureau 2019 data says currently there are
1,350 functional jails in India, with a total capacity of approx 4 Lakh
prisoners but actual strength exceeds 4.78 Lakh. In that, 4.3% are women
prisoners. In total prisoners, 69.05% (approx. 3.3 Lakhs) were undertrials and
just 30.11% are convicted for acts or omissions considered as a crime.
occupation rate in all prisons is on an average of 118.5% that reflects strength
in prisons is beyond their capacity and prisons are overcrowded. Generally, undertrials spend 3 months to 5 years in jail before getting bail. Out of
India's total of 4, 88,511 prisoners as of 31/12/2020, reportedly 3, 71,848
persons, around 76.1% of inmates were undertrials. The remaining 23% that is (1,
12,589 prisoners) were convicted and 0.7% means (3,590 prisoners) were
Problems with Prisons in India
In India prisons suffer from various problems, apart from proper opportunity of
reformation and restoration, there are some very basic as well. In the Landmark
judgment of Rama Murthy v. State of Karnataka
(1997[ix]) the court noted
nine major problems which needed immediate attention:
- Delay in trials;
- Torture and Ill-Treatment;
- Neglect of health and hygiene;
- Insufficient food and inadequate clothing;
- Prison Vices;
- Deficiency in communication;
- Streamlining jail visits;
- Management of open-air prisons;
Unfortunately, Indian prisons are still struggling with most of these vital
Former Chief Justice of India Sh. R.C Lahoti pointed out four major
issues with which prisons in India are suffering:
- Overcrowding in prisons;
- Unnatural death of prisoners;
- Gross Inadequacy of staff;
- Available staff being untrained or inadequately trained.
Apart from these highlighted and specifically mentioned problems, there are a
few major problems in Indian prisons as the problem of prison discipline, the
problem of prisoners' health, The problem of criminality in prison, The
unnatural death in prisons along with corruption and other evil practices being
Problems with undertrial prisoners in India
The problems of undertrials have assumed new proportions in India.
On the one side, undertrials in prison are already considered guilty in society
on the other hand thousands of undertrials are languishing in jails in different
parts of India for much longer than if they would have been convicted they would
have to suffer.
The pre-trial detention is to ensure the presence of the accused
and to restrict the accused from tampering with shreds of evidence and influence
witnesses essentially involves the question of liberty, the burden on public
exchequer, justice and public safety.
The poorer are generally subject to long
term pre-trial detention mostly because they can't furnish surety and stand
personal bonds for bail. Mr Justice V.R Krishna Iyer in the landmark judgment
of Moti Ram v. State of Madhya Pradesh, (1978) highlighted the agonies of
pre-trial detenues in these words-
"The consequences of pre-trial detention are grave. Defendants presumed
innocent are subject to psychological and physical depravation of jail life,
usually under more onerous conditions than are imposed on convicted defendants.
The jailed defendant loses his job if he has one and is prevented from
contributing to the preparation of his defence. Equally important, the burden of
his detention frequently falls heavily on the innocent member of his family"[x]
Expressing grave distress and concern on undertrials condition in Bihar,
honourable Supreme Court of India in Hussainara Khatoon v. Home Secretary of
Bihar (1979)[xi] incarceration of undertrials who have virtually spent their
period of the sentence was an illegal and blatant violation of their Fundamental
Rights guaranteed under Article - 21 of Constitution of India. In this very
judgment, the court observed a speedy trial as one of the postulates of Article
- 21 of the Indian constitution and the state cannot avoid constitutional
obligation by pleading administrative and financial inability.
In India we are having provisions in Criminal law, C.r.P.c Section - 167 which
limits time for completion for police investigation; we have sections - 303, 304
in our C.r.P.c, that promote legal aid for indigent accused. Despite having
such wonderful laws in books we are tremendously lacking in practice and the
situation of undertrials in an Indian prison is concerning and alarming.
Prison reform and available alternatives
The future lies in solutions, not in concerns and solutions and
suggestions have been given by various committees to the government of India,
what is required is the implementation of those suggestions insole and spirit,
after analyzing the feasibility of those suggestions with an Indian situation.
Suggestions and Recommendations made by several committees
In India, in the year 1980 the Government of an India set up, a committee on
jail reform under the chairmanship of Justice A.N. Mulla, a committee popularly
is known as Justice Mulla Committee. The committee after observing rules,
regulations and present situation and studying thoroughly made several
suggestions in its detailed report, as "Establishing all India cadre for prison
staff & bringing prison under the concurrent list of schedule 7 of Indian
Constitution, the further committee recommended that the Government should form
a National Policy on Prisons with using alternatives to imprisonment such as
community service, etc.
The expert committee for looking up the women prisoners was constituted by the
Government of India in the year 1986 -87 under the chairmanship of Justice V. R.
Krishna Iyer, popularly known as V. R. Krishna Iyer committee. The committee
gave various suggestions to the government of India as the establishment of
Separate institutions with women employees alone for the women offenders,
suggested to incorporate necessary provisions to restore the dignity of women
even if women are convicted.
Another committee, headed by the Director-General, Bureau of Police Research and
Development (BPR&D) in 2005, used the reports of Justice Mulla Committee Report
& Justice Krishna Iyer Committee and made several additional and new
recommendations. The committee also drafted a National Policy on Prison Reforms
and Correctional Administration, 2007.
The committee headed by Director General
(BPR&D) suggested GOI amend the constitution to include the principles of prison
management and treatment of undertrials under Directive Principle of State
Policy, & also to include prisons in the concurrent list of the seventh schedule
along with the enactment of uniform & comprehensive law on matters related to
prisons. In its recommendation committee recommended establishing a department
of Prisons and Correctional Services in each state and Union Territory.
The NDA government in the year 2000 formed a panel headed by the former Chief
Justice of Kerala & Karnataka High Court, Justice V.S. Malimath, and the
committee is popularly known as Justice V.S. Malimath Committee, to give
suggestions on the century-old criminal justice system. The committee made
several recommendations which are even now considered the dire need of the hour.
Justice v/s Malimath Committee's recommendation on Sentencing:
- The Committee was in favour of a permanent Statutory Committee
to prescribe sentencing guidelines, which should be adhered to and
followed while sentencing
- Pregnant women and women having children below the age of seven
years can be kept under house arrest, instead of being lodged in
prison, keeping in mind the future life and best interest of the
child, Committee said, in cases where the interest of society is not
involved, the law should favour settlement
without trial as recommended by the Law Commission.
- Committee recommended the fine amount to be increased by fifty
times. In cases where the convict is unable to pay a fine or has
defaulted, community service may be prescribed.
- The Committee also favoured substituting death sentence with
imprisonment for life without commutation or remission.
- The Committee suggested being review "The Indian Penal Code" to
enhance, reduce or apply alternative modes of punishments keeping in
mind new and emerging crimes.
In 2018, the honourable Supreme Court appointed the panel headed by Justice
Amaitava Roy to study prison reforms. The committee popularly known as Justice
Amaitava Roy Committee, submitted its detailed report on February 2020 with
major recommendations including the aspects of overcrowding, setting up Special
fast-track courts to deal with petty offences, for Lawyers - prisoners ratio:
the committee was of the opinion; there should be at least one lawyer for every
In respect to understaffing, the committee submitted that the
Supreme Court should pass directions to start the recruitment process against
vacancies along with other important suggestions like There should be the use of
video-conferencing for trial, the new prisoners should be allowed a free phone
call in a day to his family to see him through his first week in jail and
alternative punishments mechanisms should be explored.
Judicial contributions for the interest of prisoners:
In the landmark judgment of Raj Deo Sharma vs. the State of Bihar
Supreme Court of India issued direction that:
If the trail is of the committed
offence for which the period of imprisonment exceeds the seven years then the
court should close the prosecution evidence within the period of two years from
the date of the record of the plea, no matter that accused was in jail or not.
In the landmark judgment of D.K. Basu vs. State of West Bengal
is still considered a milestone in criminal jurisprudence of India, the honourable court framed extensive guidelines and held that torture during
custody is a gross violation of human dignity and is degrading to the individual
personality. The right to life and liberty is an expression of human rights. So,
the court held that no person who is arrested can be detained in custody without
giving him knowledge and information about the grounds of the arrest and he
should not be denied for the right of the legal practitioner.
In the landmark judgment of Rudal Shah v State of Bihar 1983[xiv], the court
awarded compensation to the victim Mr Rudal Shah, for unlawful detention for
more than 14 years, the court ordered to pay 30,000/- Rs as an interim measure
irrespective of 5,000/- already paid.
Remedies to reduce the distress of prisoners and serve the objective of
The Government of India should frame a National Policy on prison and form a
National Commission on Prisoners to look into matters more seriously. The
holistic development of prisoners should be ensured like stress management,
yoga, mediation etc. The United Nations Convention against torture should be
rectified and the staff should be sensitized about the need to treat prisoners
as humanely as possible.
The people should also be sensitized which will help in
changing the people's attitude that "Everyone inside the jail is not a criminal,
he is either an offender or could also be an under trail".
allocation for the Criminal Justice System requires to be increased. Interactive
and community policing needs to be encouraged in all possible ways, Open prison
or semi-open prison needs to be encouraged like that in UP and Rajasthan,
reformative and rehabilitative measures need to be introduced and experiments
should be done on various kinds of prisoners to test its effectiveness. The
government should implement the suggestions and recommendations made by various
committees, as far they are practical and possible.
The adoption of the above-mentioned suggestions and recommendations of Justice Mulla
Committee, V. R. Krishna Iyer committee, Recommendation of Director General,
Bureau of Police Research and Development (BPR&D), Justice V.S. Malimath
Committee, Justice Amaitava Roy Committee along with the strict application of
judicial guidelines and implementation of legislative provisions in their soul
and spirit will tremendously benefit the prison administration in India.
adopted measure is going to help in reducing overcrowding and operational costs
in prison administration, reduction in cost on one hand and increased budgetary
allocation will help in the infrastructural development of prisoners. It will
reduce the psychological pressure and lack of confidence when they assimilate
The Indian government needs to develop a humane attitude about the
offenders in society. In way to ensure speedy trial and ensuring the presence of
the accused we need to wisely utilize the DNA FORENSIC LAB in Chandigarh and
pass The DNA Technology (Use and Application) Regulation Bill, 2018 to reduce
the overcrowding by the faster conviction of offenders, Extending Legal Right to
Vote prisoners and Free Legal Aid (Directive Principle entrusted in Article 39a
of our Constitution) will develop willingness in prisoners to get reunited with
the society and make a new beginning. The prison administration and the state
jointly shall ensure no one shall be subjected to torture or cruel, inhuman or
degrading treatment or punishment and no one shall be subjected to arbitrary
arrest, detention or exile.
- (2011) 2 SCC 83 : AIR 2011 SC 419
- (1012 cri LJ 1050 (SC)
- Article - 21, Part - 3, Constitution of India
- Paranjape N.V, P - 515, Ed - 18th, 2019, Criminology & Penology, Central
- A.I.R 1997 S.C. 1739.
- Moti Ram v. State of Madhya Pradesh, (1978) 4 S.C.C. 47 at p. 52 para 14.
- A.I.R. 1979 S.C. 1360
- (1998) 7 CC 507
- 1997 1 SCC 416
- 1983, AIR 1086
- Mr Pranjal Chaturvedi - Student Of The 4th Year Of B.A.LL.B From
Sharda University School Of Law.
Email: [email protected] and
- Miss Aishwarya Majumdar - Student Of The 4th Year Of B.A.LL.B
From Sharda University School Of Law.
Email: [email protected]