This article is written by Reet Balmiki, from NALSAR University of Law. This is an exhaustive article which deals with the rules of the prisons in India, the need for reform in these rules and suggests a few reforms to be brought.
“It is not the prisoners who need reformation, it is the prisons”.
The age-old prison rules in India are futile in the present world and are often not adhered to. The above quote by Oscar Wilde, rightly emphasizes the urgent need for reformation of the prison rules and their application. This is crucial as it ensures that the prisoners fulfil their purpose in society. instil
The prisoners are kept under inhumane conditions and are often deprived of their basic rights. They are often seen as deserving of such treatment due to the wrongs that they have committed against society.
The idea that the ill-treatment of these warranted captives is justified is completely flawed as such treatment of punishing prisoners by denying them their basic human rights is entirely opposed to the purposes these prisons seek to serve.
The prisons provide a chance for rehabilitation by way of activities designed to change criminals into law-abiding citizens. This reduces the chances of commission of crimes by prisoners in the future and provides them with a way to redeem themselves.
In addition, prisons also deter people by warning them of the consequences of committing such crimes. They also separate the prisoners from society to avoid any further harm being caused to innocent people.
Therefore, for prisons to rehabilitate and allow the reformation of the prisoners, there is a need to change the approach from entirely retributive to reformative, which cannot be achieved in the present situations of the prisons. Thus, there is a need to reform prison rules and protect the rights of prisoners.
Current prison rules – an insight
The Prisons Act, 1894
The Prisons Act, 1894 is one of the oldest and most important legislations implemented to govern the laws related to prisons in India. The Act came into effect on 1st July 1894 and exhaustively covers the aspects of smooth functioning of the prisons.
Section 3 of the Act defines the terms ‘prisons’, ‘criminal prisoner’, ‘convicted prisoner’ and ‘civil prisoner’. The Act also deals with the maintenance and officers of the prison and appoints the Inspector General in charge of discharging all functions directed by the state. Under Section 8-20, the Act also lays down the duties of each of the officers appointed.
In addition, the Act covers aspects of the admission, removal and discharge of prisoners and lays down a few essential disciplines of the prisoners. The Act also provides directions for taking care of the health of the prisoners under Chapter 8.
Though the Act is exhaustive and covers several aspects of the functioning of the prisons, these provisions are outdated and cannot be applied in the current time due to several reasons that will be further discussed.
In addition to the national laws governing the functioning of the prisons, several international laws include provisions relating to the rights and treatment of the prisoners.
The Universal Declaration of Human Rights (UDHR)
The United Nations adopted the Universal Declaration of Human Rights (UDHR) to promote human rights around the world. Articles 1 and 2 of the Declaration uphold the freedoms and dignity of every individual and entitles everyone to the rights guaranteed under the Declaration. These provisions are to be applied to “all human beings” including prisoners.
Article 3 states that everyone has the right to life, liberty, and security of person. This is one of the basic human rights and is available to both the prisoner and freemen. In addition, Article 5 of UDHR protects every individual from being subjected to torture or cruel, inhuman or degrading treatment or punishment. This protects the prisoners from being subjected to inhuman treatment in the prisons.
International Covenant on Civil and Political Rights (ICCPR)
There are several provisions under the International Covenant on Civil and Political Rights (ICCPR) regarding the treatment of prisoners. Like the UDHR, the ICCPR upholds the prisoner’s right to life and protects them from being subjected to torture or inhumane treatment. In addition to this, Article 10 of the ICCPR provides that, “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.
This provision is important as it segregates the accused from the convicted persons and separates the juvenile accused from the adults. It also provides that the essential aim of the system shall be their reformation and social rehabilitation.
Other rules and principles established by the United Nations
In addition to the above-mentioned international instruments, the UN has also implemented the United Nations Standard Minimum Rules for the Treatment of Prisoners which contains many rules regarding the rights and treatment of prisoners. Apart from this, the United Nations Basic Principles for the Treatment of Prisoners has been adopted to ensure that all prisoners be treated with due respect for their inherent dignity and value as human beings and be allotted universal human rights and fundamental freedoms guaranteed to everyone.
Rights of the prisoners
Rights guaranteed under the Indian Constitution and various statutes
- Equality before the law (guaranteed under Article 14 of the Constitution of India).
- Protection of all the rights and freedoms (guaranteed under Article 19 of the Constitution of India).
- Protection of life and personal liberty (guaranteed under Article 21 of the Constitution of India). There are several rights implicit under Article 21, these include:
- Rights of inmates of protective homes;
- Right to free legal aid;
- Right to a speedy trial;
- Right against cruel and unusual punishment;
- Right to a fair trial;
- Right to health and medical treatment;
- Right against custodial violence and death in police lock-ups or encounters;
- Right to live with human dignity;
- Right to compensation for wrongful arrest, detention and torture;
- Right against delayed execution;
- Right against public hanging;
- Right of release and rehabilitation of bonded labour.
- Accommodation and sanitary conditions for prisoners (as per Chapter 8 of the Prisoners Act).
- Provisions relating to the examination of prisoners by a qualified Medical Officer (as per Section 38 of the Prisoners Act).
- Separation of prisoners – containing female and male prisoners, civil and criminal prisoners and convicted and undertrial prisoners (as per Section 27 of the Prisoners Act).
- Supply of clothing and bedding to civil and unconvicted criminal prisoners (as per Section 33 of the Prisoners Act).
- Right to seek Remission (as per the remission system established under the Prisoners Act).
Role of Indian judicial system in prison reforms
The Indian courts have, in several cases, upheld the basic rights of the prisoners and have expressed their concern over the need for reforms in the prison rules in the country.
The Honourable Supreme Court dealt with the most important question concerning the rights of the prisoners in the case of Sunil Batra v. Delhi Administration (1979). The main issue, in this case, was whether or not the fundamental rights guaranteed under the Constitution of India extend to the prisoners.
The Court rejected the hands-off doctrine and held that “the fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration”. Therefore, all prisoners, whether accused or convicted, have certain basic rights that are to be protected. This landmark decision filled the lacuna in the Prisoners Act, 1894.
In the case of Madhav Hayawadanrao Hoskot v. State Of Maharashtra (1978), the court held that the right to legal aid is essential to ensure a free trial. The court in the case of Mathew Areeparmtil & Ors v. the State Of Bihar And Ors (1984), observed that a large number of people in prison were awaiting trial for trivial offences and ordered the release of such accused.
The Court took up the issue of custodial violence and abuse of police power in the case of D.K. Basu, Ashok K. Johri v. State Of West Bengal, State Of U.P (1996). The court held torture during custody to be a gross violation of the fundamental rights of the prisoners. The court also established that in case such violence is undertaken against a prisoner, the prisoner must be provided with monetary or pecuniary compensation.
The need for reform in prison rules
- The Prisons Act, 1894, which governs the rules of prisons, was enacted more than a century ago and is not befitted to be applied in the present times. This is because:
- The Act focuses on keeping the prisoners alive rather than enabling reform and rehabilitation.
- In addition, there is no separation between hard and petty criminals under trial and they are thus treated alike.
- Despite there being provisions for ensuring proper healthcare and other basic facilities, the reality in the management of prisons is often quite the opposite. The prisons lack proper and nutritious food, basic healthcare facilities, etc., which has serious health implications.
- The number of pre-trial detainees considerably overshadows the number of convicts in prison. Though the pre-trial detainees should be considered innocent until convicted before the court and be treated as such, they are often treated similar to or worse than the convicted prisoners.
- As per the NCRB 2019 data, 69.05% of the total prisoners were under trial which amounts to around 3.3 lakh people. Out of this over one-fourth have remained in prison for at least one year. Detention of mere accused for such long periods violates their rights and restricts several freedoms. These include the right to liberty, freedom of movement, freedom of occupation, freedom of dignity and the legal right to vote.
- There is a severe problem of overcrowding in the prisons which has impacted the hygiene in the prisons and has resulted in no separation of offenders based on the crime committed. As per the NCRB 2019 data, the occupancy rate in 2019 was 118.5%, increasing by 1.1% from 2018.
- A large part of the overcrowding is among under-trial detainees. To overcome this issue, there is a need for faster clearance of cases to reduce the pendency of cases.
- Apart from overcrowding, there is also a problem of understaffing of prison officials. The actual number of officials is significantly lesser than the sanctioned strength. This has often resulted in the shortage of jail staff, medical staff, women jail staff, etc. However, post the COVID-19 surge, the number of pending cases increased, amounting to 4.4 Croce in April 2021.
- There has been poor spending on the healthcare and welfare of the inmates including food, clothing, medical expenses, vocational/educational, welfare activities and others.
- While several innovative activities are undertaken in a few prisons, others mainly focus on vocational training programs which are outdated. There is a need for well-planned prison programmes providing structured daily activities, vocational training, pre-discharge guidance and post-prison monitoring.
- The physical abuse of prisoners by prison guards and officials is a major concern. In many parts of the country, unwarranted beatings are considered a part of prison life and often go unnoticed by those outside the prisons. This violates the rights of the prisoners and allows the officials to walk without any consequences for such actions.
- Women prisoners are more vulnerable than men to abuse. In addition to being subject to physical violence, they are often prone to sexual abuse from male inmates, prison guards or officials. Such servitude has led to the women prisoners being harassed, abused and even tortured.
- In addition to this, due to a lower level of awareness and legal education, women often serve longer terms. They are also more likely to be dejected by their family which adds to their mental trauma.
- The rules in the prisons focus more on punishing and restricting the prisoners than reforming them. There is a need to provide regular reformative programs and rehabilitation to the prisoners to enable them to return to society as law-abiding members.
- The Parliament must thoroughly revise the existing legislation which was enacted a century ago. There is a need for the Prisoners Act, 1984 to be updated and re-written in light of the recent social, political and economic developments of the country. The legislation is silent on many aspects affecting prisoners and many of its provisions are obsolete in the current times.
- The government must establish a committee to ensure proper implementation of the prison rules and proper functioning of the prisons. This will enable it to keep a check on sanitation, healthcare, management, food, clothing, etc. in the prisons.
- To stop the violence by the police, the government must ratify the 1987 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
- There is a need to ensure the under-trial accused are detained for minimum periods only and not for unreasonably long periods. This will reduce the problem of overcrowding in prisons while not excessively restricting the rights of the accused.
- Women prisoners should be treated more generously and be kept mentally and physically fit. Those who have suffered sexual abuse should be given the relevant remedy and ensures proper treatment in the prisons thereon. There is an urgent need to keep a check on the physical and sexual abuse of all prisoners.
- The existing rules regarding the restrictions and scrutiny of postal mail of inmates should be liberalized. This shall instil trust and faith among inmates for the prison officials.
- There is also a need for a provision granting the prisoners who were wrongfully detained or suffered harm due to the negligent acts of prison personnel the relevant compensation.
- The quality of education provided in the prisons should be improved as proper education will provide the prisoners with a chance to earn a livelihood after serving their sentence.
- There is a need for the government to take steps to change the public attitude against prison institutions and their management. In addition, there is a need to fight the social stigma that convicted offenders face even after the completion of their sentence.
“Hate the crime, not the criminal”
The above quote deters the violence and social stigma against prisoners and promotes reformation and rehabilitation. There are also several issues such as overcrowding, physical abuse, stigmatization, custodial violence, lack of proper healthcare, basic facilities, etc., which have emerged after the formulation of the prison laws.
These violate the rights and freedoms enshrined to everyone by the Constitution of India. There is a need to incorporate reformative programs along with fresh provisions to reform the present prison laws to the recent issues faced in the prisons. There have been several developments since the enactment of the Prisons Act, 1894. There is a dire need to revise the legislation and bring in reforms based on the current needs and problems faced in the prisons.
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