Guest Post: Indian Prisons, Workshops of Atrocity?

(This is a guest post by Vanshika Jain)

It is well recognised that the aim of criminal law is to preserve law and order in society, promote peace and punish those who violate a legally established order, which can be achieved through the establishment of a system of prohibitions, sanctions and procedures to deal fairly and appropriately with culpable conduct that causes or threatens serious harm to society. 

A punishment can be simply defined as a means of inflicting pain on the offender for transgression of law, to serve one of the purposes of retribution, deterrence, reformation or prevention, most common form being incarceration. This includes the deprivation of liberty and freedom of the offender for a certain fixed amount of time which can even extend to life and in rare cases, to death depending on the severity of offence and the individual circumstances.

The Indian Criminal Jurisprudence believes in reformation of offenders who while serving their sentences inside prisons can be cultivated into better individuals. This is essential as the person who is now inside the prison has to come out someday and if he is not reformed, he could be a greater source of troubles for the society. 

As Oscar Wilde says, ‘Every saint has a past and every sinner has a future’, a prisoner should be reformed so that he can prove to be a better citizen of this country. But is India doing enough for reforming criminals? Does the conditioning inside prisons promote rehabilitation? What are the living conditions of these people? Are their basic human rights guaranteed?

Indian prisons suffer from multitudinous problems, which can be categorised under various heads such as that of infrastructure, shortage of staff, conditions of women prisoners, violence among the inmates, security lapses which had led to jail breaks previously, health and sanitation facilities and the callous attitude of jail officials towards their responsibilities. This article would highlight the issues of under trial prisoners whose basic constitutional rights stand violated; the living conditions of women prisoners and most essentially the children who live with their incarcerated mothers inside the prisons.

Under trial prisoners languishing in Jails

In 1996, when a Delhi Police team bundled him into a car in Kathmandu, Nepal, Mohammad Ali Bhat was just 25. Bhat, who hailed from Kashmir, was working as a shawl trader in the Nepalese capital. From there, he was taken to Delhi, made an accused in the Lajpat Nagar blast case, and later taken to Rajasthan and named as an accused in the Samlethi blast case. This ensured that he spent years in jails in Delhi and Rajasthan.

On July 22, 2019, the Rajasthan High Court declared Bhat to be innocent. Found "not guilty" at 48, Bhat had lost 23 prime years of his life to prison due to India's lethargic justice delivery system.

There are hundreds of such instances which can be mentioned. Such is the plight of prisoners who are under trial and waiting for that one day when they would be judged innocent and thus justice would be served. To understand this issue, it is crucial to have a look at the recent reports of Prison Statistics India, brought out by National Crime Records Bureau in 2018. The proportion of under trial prisoners in India was almost 70% of the total number of those imprisoned, their number during the last decade increased by 25.4%. 

 

High proportion of under trials in the overall prison population may be the result of unnecessary arrests and ineffective legal aid during remand hearings. It is also observed that maximum number of under trial prisoners belong to a downtrodden and backward section of society who continuously struggle to make their ends meet in their daily lives. More than 65 per cent of under trial prisoners in India belong to the Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Castes (OBC).

Greater wealth generally allows for more effective representation; it is because of their financial constraints that they fail to hire competent advocates who can successfully file and get bail for them. Even if they get bail, they are unable to afford the bail fee. While our Constitution tries to eradicate this evil by recognising ‘Right to Free Legal Aid’ as a Directive Principle of State Policy under Article 39A, the situation remains dark.

There is a gap between the number of prisoners eligible to be released and actually released, under Section 436A of the Code of Criminal Procedure 1973 (CrPC). This section allows under trials to be released on a personal bond if they have undergone half of the maximum term of imprisonment they would have faced if convicted. In 2016, out of 1,557 under trials found eligible for release under Section 436A, only 929 were released. Also, research by Amnesty India has found that prison officials are frequently unaware of this section and unwilling to apply it.

Their misery does not end here, what adds to it is the inequality which they face on account of their economic conditions. Our constitution guarantees Equality before Law under Article 14 but this is one Fundamental right which is violated the most inside prisons. In their book, Black Warrant: Confessions of a Tihar Jailer, authors Sunil Gupta and Sunetra Choudhury mention about  prisoners who are extremely rich, affluent belonging to an elite society, enjoying the same luxurious lifestyle in the prison as they would have, had they not been there. Some are real estate owners or developers, politicians and what not. While the poor, who are still under trial, many of whom might have completed their sentence if it would have been awarded still continue to suffer only because of lack of wealth or power; the wealthy ones would even travel out of the jail as and when they liked that too to different cities.

Conditions of Women Prisoners and their Children

As per the most recent data available from the report Women in Prisons published by the Ministry of Women and Child Development, Government of India, there are 4,19,623 persons in jails in India. Women constitute 4.3% of this figure, numbering a total of 17,834 women. These are the official figures. Of these, 66.8% (11,916) are under trial prisoners.

There is a lack of female staff in prisons in the country which often leads to male staff becoming responsible for female inmates. This is highly undesirable since women inmates need gender-specific services that should be provided by female staff.

According to Commonwealth Human Rights Initiative, women in some jails are not provided with sanitary napkins for which they have to buy their own, rely on their families or use a cloth. No one would be oblivious of the fact that there has been a lot of awareness about menstrual hygiene and how detrimental it is for a women's reproductive system to not to use sanitary napkins. While many girls and women in our country still cannot afford sanitary napkins, conditions of Indian women prisoners is even worse.

According to extant regulations, a child up to the age of six years can stay with his imprisoned mother. There is certainly no harm in preferring the children to stay with their mothers rather than separating them. But, at the same time one needs to keep in mind the mental state of such a child whose early years are spent inside prisons and therefore this calls for establishing recreational facilities for their social, emotional and physical well being. The impact of their mothers’ imprisonment not only affects them but also their relationship with their mothers. 

Certain steps have to be taken so that these children can easily integrate with the society and don’t feel like outsiders once they are out. A field action project conducted by the Tata Institute of Social Science revealed five major problems – firstly, the prison environment hindered the growth and development of children. Secondly, most children never experience a normal family life. Thirdly, socialising patterns got severely affected due to the prison life. Fourthly, children were unsettled due to the constant transfer from one prison to another. Finally, the children in the prison showed violent and aggressive tendencies.

The Supreme Court has laid down guidelines for the holistic development of such children in R.D. Upadhyay v. State Of A.P. & Others [2006 (4) SCALE 336] wherein it said that children living with parents in prison should not be treated as a convict or under trial. They should be entitled to food, shelter, medical facilities and other basic rights. Also, children shall be permitted to stay in the prison with their mother until the age of six. After this, they will be transferred to the surrogate of the mother’s choice or a suitable institution run by the Social Welfare Department. Such children shall be kept in protective custody either until the release of their mother or till they are old enough to earn a livelihood. The children shall be given proper education and recreational opportunities in prison. Children till the age of three shall be looked after in a day care centre, and children above the age of three shall be placed in a nursery.

Often women prisoners with children remain in jail simply because no one can provide the sureties required to release them on bail, or their terms are extended due to lackadaisical prison administration. There are few allowances, such as a separate diet or baby care items, for women imprisoned while pregnant or breastfeeding. Pregnant prisoners should be provided with the same level of health care as is provided to women not in prison, including access to obstetricians, gynaecologists if required, and midwives or birthing practitioners appropriate to their culture.

Every Cloud has a Silver Lining

Kalu Tulsiram , 35, a bespectacled, serious-looking man, brews tea at a stall near the Udaipur central bus depot. A few metres away, Deepak Lalaprasad, 33, heavier built, helms another stall, waiting for a customer. Casual passersby or customers could never guess that these two men were convicts serving life sentences under Section 302 of the Indian Penal Code of 1860, for murder.

A laudable step towards humanising prisons is the concept of Open Jails. The United Nations Standard Minimum Rules for the Treatment of Prisoners, popularly known as the Nelson Mandela Rules, laid down the objectives of open prisons stating, that such prisons provide no physical security against escape but rely on the self-discipline of the inmates, providing the conditions most favourable to the rehabilitation of carefully selected prisoners. 

According to the Rajasthan Prisoners Open Air Camp Rules, 1972, open prisons are, “prisons without walls, bars and locks.” Inmates in Rajasthan’s open prisons are free to go out of the prison after a first roll call and have to return before the allotted second roll call. The jail does not confine them completely but requires them to earn their living to support their families, living with them inside the jail. As many as 1,127 prisoners in 29 open jails in Rajasthan work as accountants, school teachers, domestic help and security guards, even those serving time for murder.

Certain prison reforms are crucial in refining the justice system

The above mentioned issues portray a sordid picture and one is compelled to ponder if prisons are ever paid attention to. Certainly not the amount it needs, majorly because the prisoners do not enjoy voting rights and hence the political class does not feel motivated enough to work in that sector. 

Borrowing words from Justice Krishna Iyer “In our world, prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from driftwood juveniles to heroic dissenters”. Certain prison reforms are crucial in refining the justice system. 

'Prisons/persons detained therein' is a State subject under Entry 4 of List II of the Seventh Schedule to the Constitution of India. So administration and management of prisons is the responsibility of respective State Governments. Hence, it is high time that prisons are given high budgetary priority in the budgets for providing efficient legal aid to under trials and appointment of female staff for women prisoners. 

Regular visits of social workers, researchers and most importantly, district judges should be scheduled so that judiciary can take suo motu cognisance of those areas upon which the government has failed to work.  

Since pretrial detention has become a major source of injustice for under trials, it is high time that the access to legal aid (which is a directive principle to state policy under Article 39A) should be made a fundamental right. The Magistrates should be aware and vigilant enough of their duty of assigning a pleader for the accused at the state’s expense under Section 304(1) CrPC failing which they are liable for departmental proceedings (as was observed in Kasab v. State of Maharashtra, Criminal Appeal No. 1961 of 2011).

Above all, the aim of sending an offender to a jail is rehabilitation and ensuring that the offender can integrate with the society after his release. For this, various skill development programs should be introduced so that these prisoners can earn better. Also, wages that are paid to prisoners should be increased and be on par with global benchmarks, so that when they come out, they have some better finances. 

The inmates and jails officials should be continuously applauded and motivated for their work. The initiative of Dr. Vartika Nanda, an Indian prison reformer is worth mentioning. She has come up with the idea of awards for inmates, Tinka Tinka Awards wherein two kinds of awards are being organised. Both awards are aimed at encouraging the creative skills and humanitarian work among inmates and the jail staffs. One such award is given in 2018 to a 36-year-old murder convict, serving life imprisonment in Model jail at Burail, Chandigarh. As per Burail jail officials, Vasudev was nominated for his extremely dedicated work in the kitchen. The jail authorities said since he was convicted and brought to the prison, he had been looking after the kitchen without taking any leave, even when he fell sick.

But above all what needs to be noted is that a lot of committees have been constituted by the government for recommending prison reforms, the latest being Justice Amitava Roy Committee of 2020. There is no dearth of recommendations but what is needed is effective implementation. One committee could be set up solely for looking into the fact of how many recommendations previously given have actually been implemented and it is only then that India’s prisons could be humanised.

India has portrayed itself often as a champion of human rights causes all across the world. Alas, the dismal condition of Indian prison reflects the paradox that exists within the Indian criminal justice system itself.