Guest Post: Between Administration and Abolition - Reading Black Warrant Along side Angela Davis

(This is a guest post by Aishwarya Nabh)

The debate on prisons is usually framed as a choice: reform the system or abolish it. But that framing may be too narrow. Read together, two very different books, one written from inside a jail superintendent's office and the other from the vantage point of an activist-scholar challenging incarceration itself, suggest that the more useful question is not which side to choose, but what each side sees that the other misses.

Sunil Gupta and Sunetra Choudhury's Black Warrant: Confessions of a Tihar Jailer and Angela Davis's Are Prisons Obsolete? could not be more differently positioned. Gupta writes from decades inside India's largest prison system. Davis writes as a scholar questioning the very foundations of incarceration. Yet neither romanticises prisons, and read side by side, they open up an important conversation about punishment, power, dignity and the future of criminal justice, one that has particular urgency in India today.

The View from Inside: Black Warrant's Administrative Realism

Black Warrant is fundamentally an insider's account. Gupta does not ask whether prisons should exist; he accepts their existence as a given and focuses on the realities of running one. Through accounts of notorious inmates, executions, institutional crises and everyday prison life, the book exposes overcrowding, corruption, violence, political influence, administrative constraints and the psychological burden borne by inmates and staff alike. Prison administration, it turns out, is not merely about enforcing confinement. It is about managing human beings under constant tension and scarcity.

The strength of Gupta's account lies in its realism. The prison that emerges from these pages is not a neatly functioning institution governed solely by legal rules, but a complex ecosystem where law, bureaucracy, politics and human behaviour intersect. Officials must maintain order among thousands of inmates while complying with judicial directions, government policy and public expectation, often making difficult decisions where no ideal solution exists.

The book also illustrates, almost incidentally, how prisons become repositories of society's failures. Poverty, illiteracy, addiction, social exclusion and mental illness do not stay outside prison walls; they enter alongside the people who are incarcerated. What struck me while reading Black Warrant was how many of the people who entered Tihar seemed to carry histories that began long before their imprisonment. Gupta observes these realities as a jailer; he does not set out to explain them. But their presence raises an uncomfortable question: if prisons keep absorbing the consequences of broader social failure, can prison reform alone ever be enough? Black Warrant stops short of interrogating the structures that produce these conditions. Its concern is not why prisons exist, but how they function.

Angela Davis and the Case Against the Prison

Angela Davis begins from a different premise altogether. In Are Prisons Obsolete?, she argues that incarceration has become society's default response to social problems, one that conceals deeper issues such as poverty, inequality, racial discrimination and failures of public welfare. Her concern is not merely that prisons function poorly, but whether they are capable of fulfilling the objectives claimed for them at all.

For Davis, prisons have become so normalised that society rarely pauses to examine their necessity. Crime is treated as an individual failing rather than a phenomenon shaped by economic and political conditions, and incarceration becomes the default fix while the underlying causes go unaddressed. In her analysis, the prison functions not just as a place of confinement but as a mechanism through which society distances itself from uncomfortable realities.

Two Lenses on the Same Problem

At first glance, Gupta and Davis appear to be speaking about entirely different things: one occupied with prison management, the other with prison abolition; one concerned with what happens inside prison walls, the other with the conditions that make those walls necessary in the first place. Yet the distance between them is smaller than it looks. Gupta writes from inside the institution; Davis questions it from outside. Both are grappling with the same underlying problem: what prisons do to human beings, and what society expects prisons to achieve. Gupta's narratives repeatedly expose institutional failure and the limits of state control; Davis theorises these failures as consequences of a system built around exclusion rather than rehabilitation.

This distinction is visible most sharply in how each treats capital punishment. In Black Warrant, execution appears as an administrative responsibility: death warrants must be carried out in accordance with law, irrespective of personal views, and the emphasis falls on procedure, compliance and the burden placed on the officials who implement one of the law's most severe sanctions. Davis approaches the same subject from an entirely different direction. She treats capital punishment as an extension of a punitive culture that prioritises retribution over restoration, asking not whether executions are lawfully conducted but whether a society committed to human dignity can justify them at all. The focus shifts from implementation to legitimacy.

A lawyer reading both works quickly notices that each addresses only part of the larger problem. Administrative accounts explain how prisons function but rarely question the assumptions that sustain them. Abolitionist theory identifies structural flaws but can underestimate the practical realities of maintaining public order and responding to serious crime. The task, then, is not to choose between Gupta and Davis, but to see what each reveals and what each leaves unanswered.

India's Constitutional Bridge

This conversation carries particular weight in India, where prisons continue to face persistent overcrowding, understaffing, inadequate healthcare and limited opportunities for rehabilitation. A substantial share of the prison population consists of undertrials who have not been convicted of any offence, and delays in investigation and trial often mean that incarceration operates as punishment before adjudication. These are not merely administrative concerns; they are constitutional ones.

It is here that Indian constitutional jurisprudence offers a bridge between Gupta's institutional realism and Davis's normative critique. The Supreme Court has consistently rejected the idea that prisoners lose their fundamental rights upon incarceration. In Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, the Court held that prison walls do not place state action beyond constitutional scrutiny, and affirmed that the guarantee of life and personal liberty under Article 21 extends to prisoners. Around the same time, in Charles Sobhraj v. Superintendent, Central Jail, AIR 1978 SC 1514, and later in Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96, the Court emphasised humane treatment, access to legal safeguards and protection against arbitrary prison practice.

The principle animating these decisions is simple but far-reaching: imprisonment may curtail liberty, but it does not extinguish personhood. The Constitution does not stop operating at the prison gate. In many ways, this vision reflects the concerns of both Gupta and Davis at once. It accepts the necessity of prison administration while insisting that the exercise of state power remain accountable to human dignity.

Even capital sentencing has gradually moved toward a rights-based framework. In Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, the Supreme Court held that procedural fairness, mental health considerations and human dignity continue to apply even to death-row convicts, marking a shift from viewing prisoners merely as subjects of control to recognising them as individuals entitled to constitutional protection.

What Neither Answers Alone

This is perhaps where the conversation between Gupta and Davis becomes most interesting: neither offers a complete answer. Gupta's experience shows why institutions matter, since no criminal justice system can function without trained personnel, procedures and mechanisms for maintaining order. Davis reminds us that institutions should never become immune from moral and political scrutiny. A prison system focused solely on control risks losing sight of rehabilitation; a theory focused solely on abolition risks overlooking the realities faced by victims, communities and administrators.

Conclusion: Beyond the False Choice

The debate between prison reform and prison abolition is often presented as a binary. Gupta and Davis suggest that this may be a false choice. Gupta's account makes it difficult to deny the practical necessity of prison administration; Davis makes it equally difficult to accept prisons as the inevitable answer to social harm. Read together, they expose the limits of both certainty and ideology.

For India, this conversation is especially urgent. The Constitution increasingly speaks the language of dignity, fairness and rehabilitation, yet the realities of overcrowding, understaffing, inadequate mental healthcare and prolonged undertrial detention continue to test those commitments. The gap between constitutional promise and institutional reality remains wide.

Perhaps that is the enduring value of reading Black Warrant along side Angela Davis. One reminds us that prisons are real institutions staffed by real people making difficult decisions every day. The other reminds us that no institution should become so familiar that it ceases to be questioned. The future of prison reform may not lie in choosing between administration and abolition. It may lie in letting each perspective challenge the other.

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. 

Guest Post: Exploring The Failure of Restorative Thought in the Indian Criminal Justice System

(This is a guest post by Hrishika Jain)

The recent execution of Akshay Singh, Mukesh Singh, Pawan Gupta and Vinay Sharma for the 2012 Delhi rape marks a significant step away from India’s 1980s’ de-facto abolitionist jurisprudence. The death penalty, having no basis in deterrence or reformation, serves no goal other than retribution. In this sense, every deployment of death as punishment, strengthens the hold of the retributive model on a justice system, and weakens any restorative and reformative pretenses. This is particularly true of the state response to the 2012 rape. The 17 year-old juvenile involved in the 2012 case was sent to a correction home for 3 years, triggering backlash against the ‘leniency’ of Juvenile Justice Act’s [‘JJ Act’] rehabilitative frameworks. Consequently, the state responded, not only by executing the 4 convicts, but also by substantively destroying the JJ Act, 2000 – it was repealed, and replaced by a new Act in 2015 which allows minors between ages 16-18 to be tried as adults for heinous crimes.

To me, this series of events poses a larger, more abstract question – about the consistent failure of non-retributive, rehabilitative thinking about justice in India. This failure manifests variously. The 2000 Act, however crucial, was one facet of non-retributive justice which was hastily abandoned. Other examples are: scaling back of the anti-death penalty jurisprudence; public support for ‘encounter’-killings of 4 alleged rape accused in Hyderabad; cases of lynchings of suspected child-kidnappers; inadequate focus on reformative schemes in prison; and a general rise of ‘tough on crime’ legislations with compromised procedures, that extend criminal penalties to pre-criminal or ‘anti-social’ conduct.

In this post, I address one potential cause for this failure. Our current criminal justice policy aims at carving out rehabilitative niches (like the JJ Act 2000, or sporadic rehabilitative programs run at the discretion of jail administrations), within a dominantly retributive framework. I argue that the failure of restorative models is guaranteed because of the sheer impossibility of a truly ‘integrated’ criminal justice system that can reconcile retribution and restoration within itself. I further argue that these efforts for integration in turn are driven by a misunderstanding of what restoration means.

Essentials of Restoration

Any inquiry into the reconcilability of retributive and restorative models first requires clarity about what a restorative model entails. Armstrong argues that the lack of consensus around the core elements and philosophical goals of restoration, renders any claim about the (im)possibility of reconciling restorative with retributive goals, suspect. Thus, according to Armstrong, the debate over reconciliation will remain inconclusive, unless the theoretical uncertainties are resolved. Without this certain agreement over the essentials of restorative models, he argues, the various policy proposals incorporating restoration in an otherwise retributive system run into one of two problems.

First, they may commodify individual practices seen in restorative models, and incorporate them within a retributive paradigm without importing its underlying philosophy. What passes as ‘restoration’ in retributive systems that centre around punishment, are often ‘alternative punishments’, and not ‘alternatives to punishment’. For example, community service under the JJ Act, in a model that does not import its underlying purpose of offenders’ reintegration and moral reform, is effectively only an alternative punishment. Similarly, juvenile special homes—though required to be places of reform, skill-development, re-education and psychosocial care—focus their budgets on security and surveillance instead. This causes tangible lack of reformative care in these supposedly reformative niches, and is in line with the suspicion of the “Otherised” criminal encouraged by retributive paradigms these homes operate in.

Alternatively, second, the policies may discard retributive frameworks, but adopt goals that stretch ‘restoration’ beyond any identity with its original philosophy. An example of this is the community-led justice systems like Nyaya Panchayats. Promoting these systems as inherently ‘restorative’ assumes a Gandhian-utopian idea of village communities, and ignores their casteist and patriarchal outcomes. Such systems may involve non-retributive responses to the offender, like in cases where Panchayat resolves rape cases by marrying the victim and the offender. However, equating such non-retributive systems to ‘restoration’ negates the essentials of restorative justice, as I argue below.

I agree with Armstrong’s thesis that policy proposals that mix-and-match restoration and retribution in India have run into the above two problems. However, Armstrong argues that these problems are a result of theoretical uncertainty over what ‘restoration’ even means, and that, given this uncertainty, the question of whether integrating restoration with retribution is possible is fundamentally inconclusive. Here, I disagree, and argue that retribution and restoration are conclusively incompatible frameworks. I further propose that this inherent incompatibility, and not academic uncertainty over meanings of restoration, is the cause of the two problems outlined above.

I believe Armstrong’s conclusion that the reconcilability cannot be determined, stems from his particular formulation of the minimal elements of restoration as that, per him, relative consensus exists on. He relies on Marshall’s understanding of restoration as “a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”. (p. 363) It is notable that this formulation has no objective metric for assessing a successful outcome, beyond the participatory nature of the process itself. Basically, the outcome is assumed to be restorative, if the process involved collective deliberation by stakeholders. I argue that, while disagreements exist on a full definition, Armstrong’s adopted formulation does not fully encapsulate even those minimal essentials of restorative justice that relative consensus exists for. By neglecting an outcome-based element, as proposed by Walgrave (p.622), the formulation neglects the distinct philosophical goals that form the very essence of restoration - healing social bonds and renewing consensus around the violated social/legal norm (Wenzel et al., p.381, 383). Incorporating these goals in understanding the minimal elements of restoration achieves two purposes. It exposes the incompatibility of restorative and retributive practices even without exhaustively defining the former, and further demonstrates how understanding restoration devoid of its philosophical goals has led to the two problems identified above.

Consider an example where all stakeholders voluntarily resolve that the best recourse after a rape, is to wed the victim and the offender. Victim’s consent in such situations is superficial. Family honour and modesty, reduced self-worth due to victim-blaming, financial dependence, even the guilt of sending a member of the community to prison - coax, without necessarily forcing, consent. A process-based understanding of ‘restoration’ would be compelled to accept this as ‘restorative’. However, introducing goals of healing social bonds, and renewing consensus around the violated norm, changes this analysis. This resolution, while being voluntary, would not renew consensus around the norm against non-consensual sex. Instead, such resolutions would further dilute this consensus each time. This is because, when marriage is understood as resolving the harm caused by rape, it indicates that it is not the victim’s right to bodily autonomy/consent, but her unmarried status or the damage to her ‘modesty’, which makes rape immoral.

Ignoring the philosophical goals of restoration changes its essence, like in the case above. It also risks partial integration of individual restorative practices into a retributive model without importing the philosophy of healing that underlies that practice, such as with community service.

Now that I have established that incorporating an outcome-based element would resolve the problems highlighted by Armstrong and is thus desirable - I will argue why restoration, as understood with its philosophical goals, is necessarily incompatible with retribution.

Incompatibility of Retributive and Restorative Goals

Societal ideas of justice and morality are strongly informed by and inform legal institutions - with different forms of institutions encouraging different social norms, and vice versa. Retributive legal institutions, thus, feed off and feed a retributive society, resting on a clear dichotomy between both the victim and the criminal-Other, and society and the criminal-Other (p.704). This Otherisation of criminality and the criminal can be best explained through Nussbaum’s notion of ‘projective disgust’– disgust projected onto a particular class of people, in order to externalise insecurities about one’s own impurities and moral failings. Ultimately, here lies the appeal of a retributive society that Otherises criminals and paints them like monsters or deviants from (as opposed to products of) human norms. Painting the Delhi rape convicts as the Other, essentially different from the Self, allows everybody else upholding patriarchal structures that justify violence against women, to externalise their own moral failings onto specific particularly egregious acts done by the Other. The Other then becomes the monster-deviant deserving of the worst forms of retribution including the death penalty, in over-compensation for the impunity granted to the Self. Retribution, in other words, becomes a mode of projecting disgust onto the Other - externalising one’s impurities, rendering oneself morally ‘pure’ in the process. Punitive prison systems, for example, help the un-imprisoned to draw a clear moral difference between the incarcerated criminals, and their free selves. So does the death penalty.

This dominant retributive sentiment, and the baggage it comes with, is inherently incompatible with restorative institutions and the kind of society they would arise in and engender. Implicitly, forgiveness is a central moral feature of a restorative society, given its goal of healing social bonds (Wenzel et al., p.377). Theoretically, forgiveness and punishment may perhaps co-exist as compatible notions of justice. However, reconciling these two in a society already deeply invested in retribution and drawing clear boundaries between society and the criminal-Other, will create distortions. Forgiveness is necessarily tied to a wholly different system of social mores – mores that recognise and seek to heal the offenders’ own victimisation at the hands of, inter alia, psychological, socio-economic, and life-history factors, while encouraging the offender to take moral responsibility for his conduct (p.7). This necessitates rejection of the idea of the criminal as an ‘Other’ – instead, it would understand crime as the combined product of a broken society, and individual agency operating within it. The development of these fundamentally different social mores, that is required for any restorative practice to succeed, would remain suppressed under the stronger tendencies to Otherise of the better-established retributive frameworks that restorative practices are embedded in.

This necessary link between retribution and the idea of the criminal-Other also risks creating some distortive consequences when restorative and retributive systems are integrated. Imagine an integrated model that allows victims a choice between penal and restorative remedies. Given the general tendency to construct the criminal as an ‘Other’, what would determine the victim’s choice between restoration or retribution in an integrated model? Wenzel et al. argue that social-psychological factors like the victim’s and the community’s ability to construct a sense of identity with the offender, play an important role in choice of remedy (p.383). This ability to identify with the offender will be particularly critical where restorative options are integrated within a retributive society. This is because, whether an offender faces retributive or restorative remedies, will often be determined by whether the general Otherisation that all offenders face in retributive systems is negated by other factors that allow a sense of identity with the offender. This was reflected during the #MeToo movement in college campuses, where social reactions ranged from ostracisation to forgiveness, and seemed to partly depend on the perception of belongingness of the offender in a largely elite, upper class/caste community. This fallout of integrating retributive and restorative justice is often unaccounted for - the co-existence of the two senses of justice is likely to exacerbate the current discriminatory penal outcomes. While a sympathisable-offender may be humanised and reintegrated, the punitive tendencies will continue to disproportionately further Otherise the offender with whom the victim/the community cannot already identify with. The latter will disproportionately be persons who are already-victimised by structural prejudice - widening the current class/caste/race gap in our criminal justice institutions. This is because the non-marginalised victim is more likely to be able to access justice effectively, as was observed in the #MeToo movement. This means, overwhelmingly, it will be the non-marginalised offenders benefiting from the sense of identity with the victim that allows restoration to succeed – while marginalised offenders are more likely to face retributive remedies. For restorative practices to not exacerbate inequities of the penal system, they must be embedded in a restorative framework that generally allows space for recognition of the victimhood of offenders and their identity with the larger society, regardless of socio-economic factors.

There is another concern with such an integrative paradigm. While victim satisfaction surveys indicate positive results for restorative options, they leave another question unanswered - whether restorative practices installed in retributive societies will satisfy the society. The purpose of criminal law is not only to remedy the harm to the victim, but also to reinstate society’s sense of security. Thus, arguably, state-reaction to crimes must also ensure that the criminal justice system, in general, nurtures society’s sense of security. This is not to say that judges validly account for public opinion during sentencing in specific instances. Rather, the criminal justice machinery as a whole must inspire faith in the community – and thus, has to match the community’s notion of justice. Why is it important that the community feels secure, and has faith in the criminal justice system? Where legal system’s attitude to crime is seen as inadequate, crime can lead to more violent crime as a mode of privately dispensing justice. Further, a society that is insecure about its safety, is also likely to generate unsafe conditions for its Otherised/marginalised sub-sections. For example, the discourse of ‘security’ around terrorism, has been politically used to engender insecurity – this, in turn, has led to a rise in tolerance for Islamophobia and violence against Muslims. None of this is to say that retributive societal norms justify a retributive legal system. However, given the importance of criminal justice systems nurturing this sense of security, restorative practices will remain ineffective, without changing surrounding retributive mores.

Thus, finally, the question is whether the shift from punishment to healing as our idea of justice, first need us to be a fundamentally different society? I answer this in the affirmative. Naturally, however, this is a chicken-and-egg question – should reform in legal institutions drive the change in social mores, or the other way around? This is a common dilemma in questions about law and society and the way they influence each other. To me, the most pragmatic answer is that reform in both must go hand-in-hand.

Conclusion

The question remains, what does this inherent incompatibility between restorative and retributive justice mean? It certainly does not mean that we give up on reform, in face of the retributive mores that pervade our society and law. What this incompatibility does mean, however, is that all facets of our interaction with crime needs to forego retribution as even one aspect of their goals, and focus on reform, rehabilitation, and restoration. These facets range from social education about crime, to prevention policies, to policing institutions, to criminal courts, and finally, post-conviction legal responses.

I will begin with post-conviction legal responses. While restorative models will incorporate alternatives to incarceration, they are not, I believe, theoretically inconsistent with the institution of prison. Practically, however, things change. Prisons in India are governed by the arcane Prisons Act, 1894 and respective state Prison Manuals. The 1894 Act contains no provisions for mandatory rehabilitative/reformative programmes – making prisons tools for inflicting punishment, not facilitating reform. Similarly, there are no uniform provisions made that encourage linkages with the community outside – despite such linkages being integral to restoration by healing social bonds. In the absence of provisions in the 1894 Act, attempts towards offenders’ restoration are isolated and discretionary – such as the gala bhet initiative started by Maharashtra that allows prisoners to meet their families without a dividing barrier. This is again a mere commodification of a restorative-like practice, in a prison system that is otherwise harshly punitive. The only way to systematically transform prisons into institutions of development, reform, and restoration, not punishment, is by shifting to open prisons, allowing prisoners to maintain their social and economic ties with the least hindrance on their liberty. Further, any idea of prisons as restorative spaces must also adequately provide post-release counselling and aid – check-ins to help the offender integrate back into society, financial assistance, career-counselling to enable the offender to economically support himself and forge a new life.

However, it is clear that any shift towards restorative justice in post-conviction legal responses will suffer from the problems pointed out in this paper, unless there is a parallel shift in all other spheres of criminal discourse and regulation. For example, media-reporting on crimes is sensationalised and deeply emotive – often evoking the imagery of ‘monsters’ and ‘evil’ while talking about crime and criminals. Negating the Otherisation that fuels retribution will necessitate media sensitivity guidelines and suitable changes to graduate curriculum in media courses – given the critical role of mass media in social education about crime. Further, media-reporting that attempts to humanise the perpetrator, highlighting his own victimhood, his life before the crime, while still not simply denying his agency in his conduct - will actively help in a shift towards a restorative society. Similarly, incorporating sociological understandings of the causes of crime and criminality, in police/judge manuals and training will initiate a shift towards kinder policing/judicial institutions.

The hope is that we move away from the isolated islands of restoration within retributive paradigms that characterise current criminal justice reform. Instead, we must aim for a holistically restorative system that detaches itself from retributive goals, and shifts to frameworks based on healing and forgiveness.

Guest Post: Mental Health of Indian Prisoners — An Analysis of Key Provisions, Guidelines and Judicial Decisions

(I am pleased to present this post by Ms. Ananya Narain Tyagi and Mr. Mohak Thukral, both are students currently pursuing their undergraduate law degree at Jindal Global Law School, Haryana) 

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”- Nelson Mandela.

"In December 2017, I visited the Ludhiana Central Jail as a part of my internship with the National Legal Services Authority. While I was discussing the prison conditions with the nominated Para-Legal Volunteer and the accompanying Panel Lawyer, loud shouts by a guy started being heard. “I want to go to my mother”, he shouted in Punjabi. The guards and the Para-Legal Volunteer told me about this mentally ill inmate and narrated a few stories of his violent acts. Within a few minutes, he came inside the office. Naturally, I was both shocked and afraid. On being called by a guard, around 5 other inmates gathered and dragged him out of the office. A week later, I visited the newly inaugurated Mandoli Complex of the Tihar Jail in New Delhi. To my utter surprise, this place was beautifully constructed. The guards gave us a tour of the place showing us the beautiful paintings made by the inmates on the walls and in the Art room. The guards showed us the dorms, the garden and the shops inside the complex. However, we weren’t allowed to visit the Music Room. On asking the reason, I received a shocking reply from the guard who hesitantly said, “A few days back, an inmate committed suicide inside the Music Room.” I was short of words. These two incidents made me realise the poor mental health conditions in Indian Prison Systems.” — Mohak Thukral

Among the many issues that India is currently facing, recognition and providing for an adequate response to the deploring mental health of the population is one of the most worrying concerns. Prisoners are yet another part of this vulnerable population whose mental health is usually neglected. In fact, general research has shown that there is a significantly higher rate of mental health problems with prisoners in India. 

The purpose behind this essay is to highlight the effect of incarceration on a prisoner’s mental health and the system’s failure to recognise the same. We begin by highlighting components of the current prison system which are possible reasons for an inmate developing mental health issues during the course of imprisonment. Picking up from there, we will identify the provisions of the Criminal Procedure Code 1973 [Cr.P.C.], and other statutes, model guidelines, and reports to understand how mental health issues stem out during the arrest of a person. 

Incarceration and Mental Health 

Mental Health issues can arise due to lack of personal liberty and deprivation of basic necessities in prisons. The World Health Organization (WHO) has identified overcrowding, violence inside the prisons, lack of privacy, isolation from social networks, insecurities about future, along with the lack of effective mental healthcare in prisons as major reasons for rising mental illness issues in prisons. 

Rabiya and Raghavan have further outlined that deploring mental health of prisoners can lead to lack of control by the administration, increase in the number of cases of self-harm, suicide, damage to property and the well-being of other inmates and the staff of the prisons being threatened. A prisoner with mental health problems is vulnerable to other issues like suffering from poor physical health, drug abuse, and inability to maintain relations inside the prison. 

While discussing the situation in India, it would be interesting to note the struggle of Indian prisons with these factors, especially with overcrowding. Suicide was found out to be the leading cause of unnatural deaths in Indian Prisons, giving an insight into the instances of self-inflicted harm in India. Further, the Supreme Court through a commission identified the poor status of mental healthcare facilities in the prisons in the landmark case of Sheela Barse. 

The Indian Legal Regime 

The Mental Healthcare Act of 2017 is an exhaustive piece of legislation containing important provisions such as under section 31(2) it provides for mandatory training of all medical officers in prisons to provide basic and emergency mental healthcare. Additionally, under section 103(6) of the act, it mandates each state governments to set up mental health establishment in the medical wing of at least one prison in the state. While the act points out important concerns regarding mental health, we believe it is inconsistent with the ground realities as there is a lack of adequate infrastructure and qualified staff in the country. In fact, as per recent news reports, the implementation of the act has failed miserably. 

To get a better understanding of the situation in prisons, we shall now briefly discuss the Model Prison Manual issued by the Ministry of Home Affairs in the year 2016. While management of prisons is a matter to be legislated upon by states (being entry number 2 in the State List), the Government of India releases suggestive guidelines and such model manuals time to time for states to emulate them. If we look at the Model Prison Manual itself, in a chapter towards medical care, it suggests for a minimum of one psychiatric counsellor in each type of prison. However, unlike for other positions mentioned, it does not deal with their appointment. 

While the Manual deals extensively with aspects like mental health and rehabilitation, most states of the country till now have not successfully followed this model. In fact, the Supreme Court has observed that most of the states have even failed to model their rules on the basis of the earlier 2003 Model. In Jan Adalat v. State of Maharashtra, Raju Jagdish Paswan v. State of Maharashtra and in few other cases, the court has also commented on the inadequacies of different state models, expressing discontent on the poor emulation of reformative measures outlined in Model Prison Rules. To illustrate, the Chhattisgarh Jail Department’s “Prisoner’s welfare and Rehabilitation Policy”, consists of a single point directly regarding mental health. This policy is inadequate as the only proposed action is to keep the minds of prisoners busy and impart ethics and values to them . 

The Indian Prison System has also failed to adopt the progressive rehabilitation techniques which are being followed by the EU/US Prison System which focus on peer support training and segregation of the mentally unfit from the general prison population in order to narrow down their scope for treatment. 

The Criminal Process and Mental Health 

According to the latest National Crime Records Bureau data on prisons, over six thousand of the total prisoners are suffering from some form of mental illness. And what is more shocking is that out of this number, around 52% are undertrials and detainees. The Cr.P.C. has a dedicated chapter with provisions dealing with instances where the accused is of an unsound mind. The important provisions of the chapter entail, providing bail to the accused even in the case of a non-bailable offence if identified as lunatic during the time of inquiry or trial (Sections 328 and 329). It also gives the Magistrate or the Court the right to order detainment of the accused in safe custody and resume the trial when the concerned person ceases to be of an unsound mind (Sections 330 and 331). Other provisions deal with procedures related to appearance in front of the Magistrate or court, and how a “lunatic” person is to be released when fit. 

Our concerns with provisions of the Cr.P.C. are of 3 forms: lack of proper standards, inadequacy, and possibility of abuse. 

Lack of Standards 

The procedure outlined in the chapter uses different and varying expressions of qualification for the Magistrate or the court to take any action. For example, Section 330(2) of the Cr.P.C. which deals with cases when bail must not be given, the qualifying words used are “Opinion of the Magistrate or Court.” Similarly, Section 330(3) of Cr.P.C. uses terms like, “Sufficient Security” and “Opinion of the Magistrate” while dealing with discharge of the mentally ill accused. 

We find usage of such terms to be problematic because an issue like bail to someone who is mentally ill may have varied and far-reaching consequences. Further, a Magistrate or a court cannot be expected to be the best judge of the accused’s mental condition. Therefore, we endorse the phrase “reason to believe” to replace “Opinion” and adding the term “Reasonable” before securities. Such qualifying words are endorsed because, under their application, the decision of the court and the magistrate can only be justified when there is a sufficient cause to believe it and not when there is a subjective satisfaction alone. For example, in the case of Amit Kumar Dey v. State of Tripura, it was observed that the Additional Sessions Judge, contrary to what was suggested in the reports submitted by medical experts, denied bail on his opinion of the mental condition of the accused. The High Court while adjudicating on the matter held that the conclusion of the trial judge must be based on sound evidence, thereby, ensuring a free and fair trial to the accused. We believe that this principle must be embodied in the provisions of Cr.P.C. itself to avoid any confusions or ambiguity. 

Inadequacy 

We are of the opinion that the provisions of Cr.P.C. are inadequate while dealing with mental health. For example, Section 54 of the Act, provides for mandatory examination of the arrested person by a medical officer. While such medical officer is required to record marks of violence or injuries, the officer is not required to examine the mental condition or prepare a report on the mental health of the accused. 

The mental health of an individual can be severely impacted while in the custody of the police. To account for the same, we believe this provision must be modified mandating the report of the mental health of each arrested person to be prepared. This would also give a better insight into the mental condition of the accused while committing the crime. Also, the Cr.P.C., in Section 330(2) makes reference to the Mental Health Act of 1987 which as of now stands repealed and is replaced by the Mental Healthcare Act of 2017. If we go according to the rules of the interpretation of a statute, it is implied that the Magistrate or the Court, must read the latest act but still we believe to avoid ambiguities especially in the lower judiciary, this rectification should be made as soon as possible. 

Possibility of Abuse 

The Indian Exclusion Report categorically highlights instances where individuals with poor mental health are arrested and detained without any cause owing to requests or bribes paid to the police. The problem is further fuelled as according to the same report, it becomes difficult for the the mentally ill population to access means of justice. While Section 304 of the Cr.P.C. provides for free legal aid to the accused, it has not been effective while dealing with the accused who are mentally ill. Even the National Legal Services Authority has acknowledged this and is currently working on its schemes for the welfare of the mentally ill. This again brings us to the persistent problem of quality of legal aid offered in India. 

Conclusion 

Hon’ble Justice Rajiv Sharma of the Uttarakhand High Court remarked “A prisoner may emerge from the prison not only without job skills, but also incapacitated for future work because of severe and lasting physical and mental health issues.” The far-reaching consequences of poor mental healthcare facilities in prisons have time and again been emphasised, guidelines have been issued, instructions have been given, and acts have been passed. However, there has been no significant change in the ground realities. 

We believe that the main reasons behind this is a lack of acknowledgement and recognition of Mental Health as a serious issue. Before any change in the policies, it is this lack of concern towards mental health must be addressed.