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"A SOCIO- LEGAL STUDY OF PRISON

SYSTEM AND ITS REFORMS IN INDIA"

A THESIS
Submitted for the Award of Ph. D. degree of
MOHANLAL SUKHADIA UNIVERSITY

In the

Faculty of Law
By

PRIYADARSHI NAGDA

Under the supervision of


Dr. R. L. JAT
(Former Associate Professor)

DEPARTMENT OF LAW
FACULTY OF LAW
MOHANLAL SUKHADIA UNIVERSITY, UDAIPUR

2016
CERTIFICATE

I feel great pleasure in certifying that the thesis entitled


“A SOCIO- LEGAL STUDY OF PRISON SYSTEM AND ITS
REFORMS IN INDIA” under my guidance. He has completed the
following requirements as per PhD regulations of the University.

(a) Course work as per the university rules.

(b) Residential requirements of the university

(c) Regularly submitted six monthly progress report

(d) Presented his work in the departmental committee

(e) Published/accepted minimum of one research paper in a


referred research journal.

I recommend the submission of thesis.

Date: Dr. R. L. JAT


Supervisor
ACKNOWLEDGEMNET

This work has been carried out under the Guidance of Dr. R.L. Jat
(Former Minister, Govt. of Rajasthan) and Guidance of Prof. Anand
Paliwal (Professor, University College of Law, MLSU, Udaipur). I do not
find words to express my gratitude to him for his continuous and keen
interest in the work without which it would not have been possible to bring
it to the stage of successful conclusion.

I am indebted to him for his enviable encouragement, untiring


efforts, inspiring guidance and affectionate behavior during the present
course of investigations.

The thesis on “A Socio- Legal Study Of Prison System And Its


Reforms In India” is my maiden research venture and my endeavor can’t
be accomplished without the expression of my grateful respect and
gratitude towards all the people who have blessed my effort with their
incessant care, support, advice, expertise and inspiration at this crucial
juncture of my career and without whom my individual efforts would have
easily gone astray.

I express my sincere gratitude to all those who have helped me in


writing of the present thesis & I convey my heartfelt thanks to all of them.

My Sincere gratitude to my esteemed Dr. R.L. Bhatt, Ex-Dean, &


Associate professor, University College of Law, MLSU, Udaipur for their
Invaluable guidance & supervision during the course of this work, without
their profound supervision & kindness, this work could not have been
completed in its present form. I am thankful to Dr. Rajshree Choudhary
Assistant Professor, Dr. Shilpa Seth Assistant Professor, MLSU, Udaipur,
for their support and guidance.

i
I am also thankful to the following persons for their support &
encouragement in completing the present work. I express my sincere thanks
to, Dr. Pankaj Bhatt, Dr. Vijay Dungarwal, Dr. Koshal Soni., Dr Deepti
Sharma, Dr. K.P. Singh Chouhan, Dr. Bhavik Paneri and heartily
thankful to Assistant Registrar Mr. Mukesh Barber, MLSU, Udaipur.

My heartiest thanks to the staff of University College of law for their


continuous support during the entire research. I am thankful to staff of
library of University College of Law, for providing me necessary facilities
for conducting this work.

I have no words to express my sincere gratitude towards my


respected Father Shri S. L. Nagda and My Mother Smt. Rajni Nagda, My
wife Ruchi and my loving daughter Miraya for blessing and My brother
R. K. Singh Bhati, Mr. Jayant Nagda, for inspiring me for the work.
They have been constant inspiration throughout the work.

My friends also deserve special thanks, for their moral support which
encouraged me to complete my work. Names, which deserve special
mention, are Mithilesh Guatam, Shri Manish Datt Sharma, Bhupendra
Kumawat, Divyaraj Singh Jhala and Dr. K. K. Trivedi, Bhavesh Soni,
Aditya Rathore and Sanjay Choudhary.

I also thank all those authors, Researchers, officers, Publishers,


Respondents, information officers, Non-Government Organization whose
invaluably help made me to complete my work.

Date :
Place : Udaipur PRIYADARSHI NAGDA

ii
LIST OF ABBREVIATIONS

& And

ADR Alternate Dispute Resolution

AIR All India Reporter

Amd. Amendment

Art. Article

Bom. Bombay

CAD Constitute Assembly Debate

CJ Chief Justice

Co. Cooperation

CPC Civil Procedure Code

Cr.PC Criminal Procedure Code

DB Division Bench

Dec. December

e.g. Example

Edn. Edition

Govt. Government

HC. High Court

Jan. January

Mad. Madras

No. Number

xiv
O. Order

Ori. Orissa

P. Page

PC Privy Council

PM Prime Minister

Prof. Professor

R. Rule

Raj. Rajasthan

S. Section

SC Supreme Court

SCC Supreme Court Case

SCR Supreme Court Reporter

U.O.I. Union of India

U.S. United State

USA United States of America

V. Verses

Vol. Volume

W.B. West Bengal

xv
CONTENTS

Acknowledgement i-ii
Contents iii-xiii
Abbreviations xiv-xv
Page No.
Chapter – 1 1-58
INTRODUCTION
PRISON SYSTEM IN INDIA AND ITS REFORMS
1.1 Prison System in India – An Overview 1
1.2 Meaning of Prison 4
1.3 Classification of Prisoners 6
1.3.1 Pre-trial Prisoners 7
1.3.2 Under-trial prisoners 7
1.3.3 Convicted Prisoners 7
1.3.4 Detenues (Detenues under the preventive detention) 8
1.4 Objectives of Prison 8
1.5 Theories of Punishment 11
1.5.1 Deterrent Theory 12
1.5.2 Preventive Theory 14
1.5.3 Retributive Theory 15
1.5.4 Reformative Theory 16
1.5.5 Expiatory Theory 18
1.5.6 Utilitarian Theory 18
1.6 Kinds pf Punishment 19
1.6.1 Corporal Punishment 19
1.6.2 Fine 21
1.6.3 Forfeiture and confiscation of property 22
1.6.4 Banishment 22
1.6.5 Imprisonment 22
1.6.6 Solitary Confinement 24
1.6.7 Capital Punishment 25
1.7 International Obligations and Guidelines 27
1.8 Major Problems of Prisons Relevant to India 28
1.8.1 More crowding 28
1.8.2 Corruption and extortion 29
1.8.3 Unsatisfactory living conditions 30
1.8.4 Staff shortage and poor training 30

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1.8.5 Inequalities and distinctions 31
1.8.6 Inadequate prison programmes 31
1.8.7 Poor spending on health care and welfare 31
1.8.8 Lack of legal aid 32
1.8.9 Abuse of prisoners 34
1.8.10 Problems of women prisoners in India-custodial rape( through a 34
case study)
1.9 Consequence of Prison Structure and Function 36
1.9.1 Health Problems in prisons 36
1.10 Prisons Act 1894 37
1.11 The Model Prison Manual 40
1.12 Prison System and its Social Community 40
1.13 Trends and Present Scenario of Prisons As Social 46
1.14 Reforms in Prison System: A Futuristic Viewpoint 50
1.15 Prisons in India – A Brief Summary 57

Chapter – 2 59-86
HISTORICAL BACKGROUND
2.1 Introduction 59
2.2 History of Prison System 59
2.3 Evolution of Prison System in India 65
2.3.1 Ancient Indian Prison System 66
2.3.1.1 Concept of Dharma and Danda 66
2.3.2 Mediaeval India 70
2.3.3 Modern India 73
2.3.3.1 Prison System in British Era 73
2.3.4 Prison System Post Independence 78
2.4 The Mulla Committee 85
2.5 The Krishna Iyer Committee 86

Chapter – 3 87-152
NATIONAL AND INTERNATIONAL PROVISIONS
REGARDING PRISON SYSTEM AND INMATES
3.1 General 87
3.2 National Scenerio 87
3.3.1 Constitutional Safeguards- Prisoners Rights 87
3.2.1.1 Right to Equality: Article 14 88
3.2.1.2 Limitation On Right To Freedom: Article 19 88
3.2.1.3 Protection Against Conviction of Offences: Article 20(1) 89

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3.2.1.4 Protection Against Double Jeopardy: Article 20(2) 89
3.2.1.5 Prohibition Against Self Incrimination: Article 20(3) 89
3.2.1.6 Scope of Right to Life and Personal Liberty : Article 21 90
3.2.1.7 Scope of Right to Education for Prisnors 91
3.2.1.8 Rights of Person Under Arrest and Detention: Article 92
22(1)
3.2.1.9 Right to be Produced before Magistarte: Article 22(2) 93
3.2.1.10 Right to Constitutional Remedies: Article 32 93
3.2.1.11 Writ of Habeas Corpus : Preventive as Well as Remedial 94
3.2.1.12 Article 39-A : Equal Justice and Free Legal Aid 95
3.2.1.13 Seventh Schedule and Article 246 95
3.2.2 Other National Statutory Provisions Relating to Prison System: 96
3.2.2.1 The Prisons Act, 1894 96
3.2.2.2 The Prisons Act, 1900 98
3.2.2.3 The Identification of Prisoners Act, 1920 98
3.2.2.4 The Government of India Act 1935 99
3.2.2.5 The Transfer of Prisoners Act, 1950 99
3.2.2.6 Prisoners [Attendance in Courts] Act [1955] 100
3.2.2.7 The Probation of Offenders Act, 1958 100
3.2.2.8 Model Prison Manual, 1960 101
3.2.2.9 The Repatriation of Prisoners Act, 2003 102
3.2.2.10 Model Prison Manual for the Superintendence and 103
Management of Prisons in India 2003
3.2.2.11 Approval of New Prison Manual 2016 by Union Home 111
Minister
3.2.2.12 Juvenile Justice (Care and Protection of Children) Act, 112
2000
3.2.2.13 Law Commissions of India on Prison Reforms 114
3.2.3 Prison Climate In Jail 115
3.2.4 Socialism in Indian Prison 118
3.2.5 Socialism with Women Prisoners in Prison 119
3.2.6 Women and Prison 121
3.3 International Provisions 122
3.3.1 Universal Declaration of Human Rights, 1948 122
3.3.2 The Third Geneva Convention 1949 124
3.3.3 Declaration on the Protection of All Persons from Being 127
Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
3.3.4 The International Covenant on Civil and Political Rights 1976 128
3.3.5 Standard Minimum Rules for the Treatment of Prisoners 131
3.3.6 Body of Principles for the Protection of All Persons under Any 134

v
Form of Detention or Imprisonment,
3.3.7 European Convention for the Prevention of Torture and Inhuman 138
or Degrading Treatment or Punishment
3.3.8 Optional Protocol to the Convention against Torture and other 139
Cruel, Inhuman or Degrading Treatment or Punishment.
3.3.9 Convention against Torture and Other Cruel, Inhuman or 140
Degrading Treatment or Punishment
3.3.10 Basic Principles for the Treatment of Prisoners 141
3.3.11 European Convention on Human Rights signed on 4 November 142
1950 Effective :3 September 1953
3.3.12 United Nations Rules for the Protection of Juveniles Deprived of 143
their Liberty
3.3.13 United Nations Standard Minimum Rules for Non-custodial 145
Measures (The Tokyo Rules)
3.3.14 Resolution 2010/16 United Nations Rules for the Treatment of 146
Women Prisoners and Non-custodial Measures for Women
Offenders (the Bangkok Rules)
3.4 Worldwide Views of The Social Climate in The Prison 148

Chapter – 4 153-242
PRISON SYSTEM – A COMPARATIVE STUDY
4.1 Introduction 153
4.2 Prison System In British Age 154
4.3 Important Covenants Related To Prisoners 157
4.4 Prison Discipline In India 159
4.4.1 Prison offences 160
4.4.2 Punishments for prison offences 162
4.5 Prisoners Issues In India 163
4.5.1 Human rights of prisoners in India 165
4.5.2 Rights of Women Prisoners in india 168
4.6 Human Rights Issues 170
4.6.1 Prison scenario: mentally ill prisoners 172
4.7 Management of The Prison System In India 174
4.7.1 Organizational structure of prison system in India 174
4.7.2 Growth of the Modern Prison System 176
4.7.3 Prison Architecture 176
4.7.4 Armed Sentry 177
4.7.5 Guarding Establishment 178
4.7.6 History Tickets of the prisoners 178
4.7.7 Security & Custodial Management 179

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4.7.8 Maintenance of the Prisoners 180
4.7.8.1 Food ration 181
4.7.8.2 Scales of diet 181
4.7.8.3 Hospital diet 182
4.7.8.4 Cleaning, Storage and Issue of Food Items 182
4.7.8.5 Distribution and service of food 184
4.7.9 Clothing 185
4.7.10 Cleanliness and Hygiene 185
4.7.11 Medical Facility In Prison 185
4.7.12 Wages To Prisoners 186
4.7.13 Inmates Management 187
4.7.13.1 Staff Management 188
4.7.13.2 Training of prison staff 188
4.8 Movement Towards Reformative Approach 189
4.8.1 Probation Laws 190
4.8.2 Object of Probation Laws 190
4.8.3 Principles and Practices for Probation Laws 191
4.8.4 Criticism against the Concept of Probation 192
4.8.5 Suggestions for Effective Probation Laws 196
4.9 Technique for The Prisoners and Prison Staff In India 198
4.10 A Worldwide Comparison of The Prison System 200
4.10.1 United States of America 200
4.10.1.1 Constitutional Rights of Prisoners 200
4.10.1.2 Other Rights of Prisoner 201
4.10.1.3 Courts and Prisons 201
4.10.1.4 Standards of Review for Prison Decisions 201
4.10.2 United Kingdom 203
4.10.2.1 Arrival at prison 204
4.10.2.2 Security categories 204
4.10.2.3 Privileges 204
4.10.2.4 Punishments 205
4.10.2.5 Rights 205
4.10.2.6 Healthcare in prison 205
4.10.2.7 Special help and support 205
4.10.2.8 Refusing medical treatment 206
4.10.2.9 Vulnerable prisoners 206
4.10.2.10 Psychiatric hospitals 206
4.10.2.11 Pregnancy and childcare in prison 206
4.10.2.12 Prisons with mother and baby units 207
4.10.3 Prison Conditions in France 207

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4.10.3.1 Principles in France for Reforms 209
4.10.4 South African Prison System 211
4.10.4.1 Prison situation in past 211
4.10.4.2 Prisons reforms in new South Africa 212
4.10.5 Prison System of Nigeria 214
4.10.6 Prison System of Russia 215
4.10.6.1 Principles related to reforms in Russia 216
4.10.7 Prison Reforms in China 219
4.10.8 Prison System in Afghanistan 222
4.10.8.1 Present prison condition in Afghanistan 223
4.10.8.2 Key issues 223
4.11 Major Global Prison Problems: A Comparative Study 226
4.11.1 Prison Overcrowding 226
4.11.2 Mistreatment of Prisoners 230
4.11.3 Inadequate Legal Process 232
4.11.4 Limited access to counsel 233
4.12 Initiatives for Reforms Taken by Some Agencies 234
4.12.1 INL (Bureau of International Narcotics and Law Enforcement 234
Affairs)
4.12.2 United States Agency for International Development (USAID) 236
4.12.3 The Federal Bureau of Prisons (FBOP) 237
4.12.4 The United Nations Office on Drugs and Crime (UNODC) 238
4.12.5 The International Committee of the Red Cross (ICRC) 239
4.13 Steps by Foreign Governments towards Prison Reforms 240

Chapter – 5 243-320
JUDICIAL APPROACH TOWARDS
PRISON SYSTEM
5.1 Introduction 243
5.1.1 Concept of Human Rights and prison 245
5.1.2 Human Rights In Indian Context 246
5.1.3 Judicial Activism on Prison Reforms 249
5.1.4 Role Played By Judiciary for Prisoners Protection 250
5.2 Prisoners Rights: Emerging Judicial Trends 251
5.2.1 Presumption of Innocence 251
5.2.2 Rights of an Arrested Person 252
5.2.3 Grounds of arrest, to be informed: 252
5.2.4 Access to Counsel: 253
5.2.5 Protection against arbitrary arrest 254
5.2.6 Right to know the grounds of arrest 255

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5.2.7 Right to have Interview with Friends, Relatives and Lawyers 259
5.2.8 Right to engage Lawyer 259
5.2.9 Right to Legal Assistance 261
5.2.10 Right to be produced before the Magistrate 264
5.2.11 Right to be released, if not produced before the Magistrate 265
5.2.12 Right of Communication to detenue 266
5.2.13 Right to Speedy Trial 267
5.2.14 Prohibition of applying ex post facto law 269
5.2.15 Protection against double jeopardy 270
5.2.16 Protection against self incrimination 272
5.2.17 Right to life and personal liberty 273
5.2.17.1 Scope of right to life and personal liberty extended by 274
apex court
5.2.18 Right against police torture 277
5.2.19 Rights against Hand Cuffing 278
5.2.20 Rights against Inhuman Treatment 278
5.2.21 Rights against Solitary Confinement and Bar Fetters 279
5.2.22 Right against delayed execution. 280
5.2.23 Invasion on right to privacy 280
5.2.24 Right to fair and open trial 281
5.2.25 Right in case of acquittal 281
5.2.26 Right to Speedy Justice 282
5.2.27 Fundamental rights of a prisoner 283
5.2.28 Protection to prisoners under preventive Detention 284
5.2.29 Right to Reasonable Wages in Prison 286
5.2.30 Natural justice for prisoners 286
5.2.31 Right to get bail 287
5.2.32 Right to Compensation: 289
5.2.33 Right to be represented in Court: 290
5.2.34 Arrested person not subject to unnecessary restraint: 290
5.2.35 Prisoner’s Right to education 291
5.2.36 Right to dignity for women prisoners 291
5.2.37 Remedy for protection of right of prisoners 292
5.3 Concept of Judicial Review 293
5.3.1 Objections to the doctrine of ‘judicial review’ 297
5.4 Scope of Rights and Expansion by Court 300
5.5 Public Interest Litigation In India 305

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5.6 Public Interest Litigation and Monetary Compensation 308
5.7 Judiciary Playing Key Role For Prison System 310
5.7.1 Constitutional remedies towards Human Rights of prisoners 311
Chapter – 6 321-374
REFORMATIVE APPROACH TOWARDS
PRISON SYSTEM
6.1 Introduction 321
6.2 Legislative and Constitutional Steps 325
6.3 Techniques of Prison Reforms 332
6.3.1 Probation 332
6.3.2 Parole 336
6.3.2.1 Parole system dealt under the Delhi Parole/Furlough 338
Guidelines, 2010
6.3.3 Furlough 341
6.3.4 Suspension Commutation and Remission 344
6.3.5 Pardon 346
6.3.6 Open Prisons 349
6.3.7 Self Governance by Inmates 354
6.3.8 Work Release 355
6.3.9 Vipassana 356
6.3.10 After Care Programmes 357
6.4 Attitude of Public towards Prisoners 358
6.5 Reformative Approch Towards Female Prisoners 358
6.6 General Issues Related To Prison Reforms 359
6.6.1 (A) Mulaqat system 360
6.6.1 (B) Celebration of festivals and other ceremonies 361
6.6.1 (C ) Communication by post or mail 361
6.6.1 (D) Education and skill training 362
6.6.1 (E) Spiritual trainings 363
6.7 Prison Culture 364
6.8 Role Played by Human Rights Commission in Prison 367
Reforms
6.9 National Commission for Women 369
6.10 National Commission for Schedule Caste and National 372
Commission for Schedule Tribes
6.11 National Commission for Minorities 373

Chapter – 7 375-428
RESEARCH METHODOLOGY

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7.1 Introduction 375
7.2 Tools and Techniques 376
7.3 Data Collection Methods 376
7.4 Interview Results 377
7.4.1 Summary of Interview with Prisoners 377
7.4.2 Summary of Interviews of Relatives of Prisoners: 378
7.4.3 Summary of Intervibews of Prison Staffs 379
7.4.4 Summary of Interviews with advocates 380
7.5 Prison Statistics In India 2012 (Data Taken From NCRB) 380
7.5.1 Detention Period (NCRB DATA) 382
7.5.2 Inmates Particulars (data from NCRB) 384
7.5.3 Deaths in Jail(NCRB DATA) 385
7.5.4 Number of convicts and under trial prisoners in different age 385
groups
7.5.5 Rate of Change of Convicts 389
7.5.6 Training 389
7.5.7 Rate of Change of Under Trial Prisoners(NCRB data) 391
7.5.8 Prison administration and Earning by prison inmates(NCRB) 391
7.5.9 Inmate population and strength of jail officials 392
7.6 Prison Condition of Tihar Jail (2014) 395
7.6.1 Expansion 396
7.6.2 Special Courts 397
7.6.3 Semi Open Jail 397
7.6.4 Free Legal Aid facility 398
7.6.5 Educational Facilities 399
7.6.6 Campus Placements at Tihar 401
7.6.7 Recreational Facilities 401
7.6.8 Medical Facilities 402
7.7 Prison Conditions In State Of Gujrat 403
7.7.1 New Initiative related to Prison systems of Gujarat 407
7.8 Prison System and Reformative Techniques in State of 413
Rajasthan
7.8.1 Human Right at Prison in Rajasthan 413
7.8.2 Weaving Section 416
7.8.2 Carpentry Section 416
7.8.3 Sports and Recreational Facilities 416
7.8.4 Yoga and Meditation 417
7.8.5 Prisoners Welfare Programme 417

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7.8.6 Parole 418
7.8.7 Premature release of prisoners 418
7.8.8 Periodical Review of cases of under Trial Prisoners 419
7.8.9 System of meeting 419
7.8.10 Visitors to Prison 420
7.8.11 Ventilation of grievances 420
7.8.12 Prisoners’ Welfare Fund 420
7.8.13 Prison Band 421
7.8.14 Treatment of Women Prisoners 421
7.9 A Report On Best Prison Practices India Report On The 422
National Consultation On Prison Reform - Human Rights
7.10 Improving the prisoners and prison system i.e. Reformations 425
7.11 Reformation and Rehabilitations 426
7.12 Societal Participation in Reformation 427

Chapter – 8 429-454
CONCLUSION AND SUGGESTION
8.1 Introduction 429
8.2 Review of Entire Study 429
8.3 Prison Reforms : The Conclusions 433
8.4 Observations Noticed By Researcher During Visits To 437
Prisons
8.5 General View of Researcher 438
8.6 Suggestions 439
8.7 Suggestions In Nut Shell 448
8.7.1 Incorporation of prisoners right as new fundamental right in part 449
III of constitution
8.7.2 New provisions especially for woman and juvenile offenders to 449
be added In prison Act
8.7.3 New provision for holding lok adalats for petty offences 449
8.7.4 Inclusion of “prison”as a subject in the concurrent list 449
8.7.5 Constituting task committee for review 450
8.7.6 Prison reforms should be made priority in five year plans 450
8.7.7 Pay allowance and other facility of prison officer should be 450
increased
8.7.8 Induction and refresher training for prison staff 451
8.7.9 Regular cadre of teachers for different subjects be made 451

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8.7.10 Code of conduct for prisoners 451
8.7.11 Need of prison commission 451
8.7.12 Educated prisoners be registered with employment offices of 452
state
8.7.13 Prison reforms should be added as Directive principle 452
8.7.14 Amendment in penal provisions 452
8.7.15 Prison policy for old ages prisoners 452
8.7.16 Need to check media trial of arrested person 452
8.7.17 Role of NGOs and Human Rights Activists, law students, 453
teachers
8.7.18 Suggestions for relatives and family members of victims and 453
accused
8.7.19 Suggestions for the society 454

BIBLIOGRAPHY 455-481

QUESTIONNAIRE

PUBLICATIONS

xiii
LIST OF ABBREVIATIONS

& And

ADR Alternate Dispute Resolution

AIR All India Reporter

Amd. Amendment

Art. Article

Bom. Bombay

CAD Constitute Assembly Debate

CJ Chief Justice

Co. Cooperation

CPC Civil Procedure Code

Cr.PC Criminal Procedure Code

DB Division Bench

Dec. December

e.g. Example

Edn. Edition

Govt. Government

HC. High Court

Jan. January

Mad. Madras

No. Number

xiv
O. Order

Ori. Orissa

P. Page

PC Privy Council

PM Prime Minister

Prof. Professor

R. Rule

Raj. Rajasthan

S. Section

SC Supreme Court

SCC Supreme Court Case

SCR Supreme Court Reporter

U.O.I. Union of India

U.S. United State

USA United States of America

V. Verses

Vol. Volume

W.B. West Bengal

xv
Chapter - 1

INTRODUCTION
PRISON SYSTEM IN
INDIA AND ITS REFORMS
CHAPTER -1
INTRODUCTION
PRISON SYSTEM IN INDIA AND ITS REFORMS

“Overall, we need bold change


In our criminal justice system.
A good first step forward is
To start treating prisoners as
Human beings, not profiting
From their incarceration.
Our emphasis must be on
Rehabilitation not incarceration
And longer prison sentences”
-SEN. BERNIE SANDERS(I-VT.)

1.1 PRISON SYSTEM IN INDIA – AN OVERVIEW

The need of reformation in the prison systems throughout the world


can be symbolised in quotation above, although prison systems everywhere
are marked by inertia, few can match India's in immutability of practice. A
country which over 40 years ago cast off British rule still administers its
system under the colonial Prisons Act of 1894. Perhaps because the act is
such a relic of the past, or perhaps because prison officials prefer the route
of least accountability, the various state prison manuals that embody the
1894 provisions are collectors' items, not only in short supply but
expensive. A number of prison commissions have attempted to update and
revise the code, but aside from a few states, these efforts have not received
legislative approval. It is not only the rules and regulations but the day to
day reality of Indian prisons which is so archaic.

1
The Human Right Watch in their paper in 19911 found that the
prison sanction (which in the west grew apace with modernization) has not
achieved centrality within India; incarceration is probably not more
extensive now than it was under British rule. Numbers often give a false
sense of precision in India – “give or take a few million,” is a frequent and
appropriate qualifier to any estimate – but they do delineate the boundaries
of the prison world. The most prestigious and thorough investigation of the
prisons, the All India Committee on Jail Reform (under the chairmanship of
the retired Supreme Court justice, Anand Mulla), found 1220 facilities in
the country as of December 31, 1980, of which 822 (67 percent) were lock-
ups, and almost all of the others, state prisons; together they held some
160,000 inmates. The Indian states, it is true, vary enormously in their
record-keeping skills and are notoriously lackadaisical about responding to
inquiries from national commissions. Yet, even if the figure were off by a
factor of two or three, India would still have one of the lowest rates of
incarceration in the world. (The United States, with the highest known rate,
has less than one-third of India's population, and incarcerates more than six
times as many people as were actually counted in the Indian system a
decade ago.) This conclusion is buttressed by the fact that with all due
allowance for overcrowding, India does not have the prison buildings to
hold that many more inmates. More, the overall lengths of prison stays are
quite short (again by American standards). Of the 160,000 inmates ten
years ago, 92,000 were under trials, and their periods of confinement while
they awaited their turn in court, were almost always less than a year (92
percent). Of the 59,000 inmates already convicted of crimes, 32 percent
served less than one year; 16 percent one to five years; 8 percent five to ten
years, and 44 percent over ten years.

1 The Human Right Watch, Prison Conditions in India 1991

2
Thus, the prisons did have a cadre of long-termers, 26,000 in
number, but they were a small fraction (16 percent) of all persons
incarcerated. Third, and perhaps most telling, the criminal system, as we
have seen, relies extensively on summary justice. To the extent that police
(or soldiers) beat or kill putative offenders, imprisonment becomes a
superfluous sanction. If the numbers of inmates is low, it is because
punishment is often meted out in rough and ready fashion. As one would
then expect, prisoners are drawn from the lowest classes, and undoubtedly
the lowest castes, although contemporary. The All India Committee
observed that a majority of the inmates came from the "underprivileged
sections of society," noting that "persons who have means and influence
generally manage to remain beyond the reach of the law even if they are
involved in violation of the law. The figures compiled by other
investigations confirm this impression: one study in the state of Uttar
Pradesh (a relatively backward region except for the area around New
Delhi), reported that 63 percent of prisoners were low income (earning less
than 80 rupees, or less than U.S. 5$ a month); only 1.5 percent earned over
335 rupees or about U.S. 20$ a month. Fifty percent of the UP inmates
were illiterate; only 10 percent had over 10 years of schooling. Along-with
this Physical and psychological torture resulting from overcrowding, lack
of space for segregation of sick, stinking toilets for want of proper supply
of water, lack of proper bedding, restrictions on movement resulting from
shortage of staff, parading of women through men's wards for lack of
proper separation, non-production of under trial prisoners in courts,
inadequate medical facilities, neglect in the grant of parole, rejection of pre-
mature release on flimsy grounds, and several such afflictions has resulted
not from any malfeasance of the prison staff but from the collective neglect
of the whole system 2 (Human Rights Watch 2001).

2 Human Rights Watch Report 2001.

3
The overcrowding, lack of physical and mental activities, poor
sanitary facilities, lack of decent health care, all increase the likelihood of
health problems in prisons. Kazi et al (2009).3 Mentioned that “prisons are
excellent venues for infectious disease screening and intervention, given the
conditions of poverty and drug addiction”. It is surprising and indeed
shocking that despite the large prison population in India, there is a
complete dearth of published information regarding the prevalence of
health problems in prisons. An exception is a small study in the Central Jail
at Hindalga in the Belgaum (the district of Karnataka) 850 prisoners were
evaluated. Scholars, policymakers, and practitioners have recently begun to
pay serious attention to the issues of prisoners’ reentry and reintegration4.

1.2 MEANING OF PRISON

The original term of prison is 'Jail' or 'gaol' or 'penitentiary.' Prison


has been defined as "a place properly arranged and equipped for reception
of persons who by legal processes are committed to it for safe custody
while awaiting trial or for punishment”.5 A “Prison”6 or “Jail"7 is a facility
in which individuals are forcibly confined and denied a variety of freedoms
under the authority of the State as a form of punishment. The most common
use of prisons as part of the criminal justice system, is in which individuals
are officially charged with or convicted of crimes are confined to a Jail or
Prison until they are either brought to trial to determine their guilt or
complete the period of incarceration they were sentenced to, after being
found guilty at their trial. Hence, in its origin the Prison was considered as a

3 International Journal of Infectious Diseases, 14, e60-e66.


4 Petersilia & Travis 2001, Lynch & Sabol 2001b, Travis et al. 2001, Corrections Management
Quarterly 2001 (special issue)].
5 The Oxford English Dictionary Vol.VIII P. 1385.
6 From the old French prisoun (see Douglas Harper2001 to 2013) “Prison” on line etymology
dictionary, Douglas Harper retrieved 28th June 2013.
7 From the old French prisoun (see Douglas Harper2001 to 2013) “Prison” on line etymology
dictionary, Douglas Harper retrieved 28th June 2013.

4
place of detention of offenders until trial and Judgment and the execution of
the latter.

Section 3 of the Prisons Act, 1894 (Act IX of 1894) defines prisons


as: "Prison" means any jail or place used permanently or temporarily under
general or special orders of the State Government for the detention of
Prisoners and include all lands and buildings appurtenant thereto, but does
not include - any place for the confinement of prisoners who are
exclusively in the custody of the police;

Prison Reforms and Social Change (Kaustubh Rote): A well


organized system of prisons is known to have existed in India from the
earliest time. It has been kept in record that Brahaspati laid great stress on
imprisonment of convicts in closed prisons. Manu was against this system
yet. It was a common practice for the prisoners to keep in solitary
confinement so as to afford them an opportunity of self introspection. The
object of punishment during Hindu and Mughal period in India: deter
offenders from repeating crime. The recognized modes of punishment were
death sentence, hanging, whipping, flogging, branding or starving to death.
The prisoners were ill-treated and even now, tortured and subjected to most
inhuman treatment in the prison. The Prisoners were kept under strict
control and supervision. Thus prisons were the places of terror and torture
and prison authorities were expected to be most tough and rigorous in
implementing sentences to the prisoners. The British colonial rules in India
had been marked the beginning of penal reforms in this country. The British
prison authorities made emphatic efforts to improve the conditions of
Indian prisons and prisoners as well. They introduced most radical changes
in the existing prison system keeping in view the sentiments of the home-
grown people. The prison administrators, who were mostly British officers,
had classified the prisoners into two heads namely violent and non-violent
prisoners. The Prison Enquiry Committee has been appointed by the

5
Government of India in 1836, recommended for the eradications of the
practices of prisoners working on roads. Most Adequate steps were also
taken to eradicate the corruptions among the prisons’ staffs. An officer
called Inspector General of Prisoners, has been appointed for the first time
in 1855, who was the Chief Administrator of prison in India. His main
function was, “maintaining the discipline among the prisoners and the
prison authorities”. The conditions of prisoners were harsher than animals
in India, and the prisoners were treated with hatred. There was no uniform
civil code for giving punishment to prisoners. The meaning of the
punishment itself was: “to crush the prisoners”. Jailors were dire persons.
But in the year of 1835, some thought of reformation arose. The second Jail
Enquiry Committee in 1862 had expressed the concerns related for the
insanitary conditions of Indian Prisoners which resulted into death of
several cases due to illness and diseases. It emphasized the need of
necessity for the proper food and clothing for the prison inmates and
medical treatment of ailing prisoners. The Prisoners’ Acts were enacted to
bring the uniformities in the working of the prisoners in Indian Prison. The
Act had been provided for the classifications of the prisoners and the
sentences of whipping were abolished. In India, the medical facilities what
were already available to the prisoners in 1866 were further improved and
better amenities started to provide to women inmates to protect them
against contagious diseases. It must be stated that freedom movement had a
direct impact on prison conditions in India.

1.3 CLASSIFICATION OF PRISONERS

Prisoners can be categorised in three manners as under:-

1. Pre-trial prisoners,

2. Under-trial prisoners, and

3. Convicted prisoners.

4. Detenues (under preventive detention)

6
1.3.1 Pre-trial Prisoners

Pre-trial prisoners are the accused, detained who are under the
custody of the state machinery for the purpose of interrogation and
investigation, based on F.I.R. or evidences found during the investigation.
There is no specific charge sheet prepared either by the police authority or
by judicial authority. They are in the custody of state for very limited
period. They are entitled to have separate treatment appropriate to their
status because the burden of proof always lies on prosecution and the
accused always have privilege of benefit of doubt. Until the accused is
found guilty, he is to be understood as innocent person. The state is
authorized to take initiative to control the crime at the initial level to
maintain law and order in the society and moreover, to obtain the evidences
and details of the offence which is assumed to have been committed by the
accused. These powers are very wide but they cannot be utilized arbitrarily
and adversely against the personal dignity and liberty as a human being.
Since the police is monopolized and authorized to use the force as state
machinery. There are several limitations on the police authority to
safeguard the Human Rights of pre- trial prisoners.

1.3.2 Under-trial prisoners

Under-trial prisoners are the prisoners, who are in custody of the


state, awaiting their trial. Their charge- sheet may or may not have been
prepared by the police authority or judiciary. In other words under-trial
prisoner is a prisoner, who is in judicial custody (Jail), awaiting the trial, in
their case. Police investigation might have been completed or charge-
sheeted or it may be pending.

1.3.3 Convicted Prisoners

Convicted prisoner is a prisoner, who is found to be guilty of some


particular offence, which is committed by him. after due process of law. He

7
is punished by the competent court as a penal action, to be kept in prison.
There are many possibilities for the pre-trial prisoners as well as for under-
trial prisoners that they may be acquitted as an innocent after just and fair
trial that they are innocent whereas convicted prisoners are the prisoners
who have to suffer the punishment for their offences since they are found
guilty of the offence and therefore, their liberties are restricted by the State
with the help of judiciary and jail authority as a penal action.

1.3.4 Detenues (Detenues under the preventive detention)

The preventive detention is a devise with the state to control the


crime by keeping the track record of habitual offenders and criminals; they
are detained in prison as a precautionary measure and to safeguard the
society. Section 151 of The Code of Criminal Procedure provides the
authority to the police officer to arrest any probable offender without orders
from Magistrate or without warrant if he feels that the commission of an
offence cannot be otherwise prevented because of the increasing crimes in
society as well as increasing organised crimes such preventive laws like
PASA etc. are enacted.

Arrest, detention and custody or even judicial custody curtails


personal freedoms and liberties guaranteed by the Constitution of India but
other fundamental rights are still available to them as citizen of country,
these rights may be for their survival, maintain good health or may be for
training, educating, recreation, earning, rehabilitation, reconciliation, and
human treatment as a human being during the stay in prison.

1.4 OBJECTIVES OF PRISON

In the year of 1920 the Indian Jails Committee had unequivocally


declared that the reformations and rehabilitations of the offenders, was the
ultimate objective of the prison administrations. This declaration
subsequently found its echo in the proceedings of the various Prison

8
Reform Committees that had been appointed by the Central and State
Governments under international influences. The United Nations Standard
Minimum Rules for the Treatment of Prisoners was formulated in the year
of 1955, provides the basic frameworks for such a goal. The International
Covenant on Civil and Political Right propounded by United Nation in the
year of 1977, to which India is a party what has clearly brought out that the
penitentiary system shall comprise treatment of prisoners, the most
essential aim of which shall be their reformation and social rehabilitation as
well. It is, however have been seen that whereas India is the second to none
in terms of an enlightened thinking with regard to the purpose and
objectives of the imprisonment of the gap between proclaimed principles
and actual practices that was appeared to have been widening in recent
years.

In the year of 1864, the Second Commission of Inquiry into Jail


Management and Discipline had been appointed. In Prison, while
recommendation of some specific suggestions to the Prison Commission
regarding the security and custody of prisoners, improvement of diets,
clothing, bedding and medical care, rehabilitation of prisoners and also
made suggestions as to the inmate management, staff management, etc. It is
the Prisons Act, 1894, on the basis of what the present Jail Management
and Administration is operating in India.

Objects of prison can be summarised as follows :-

a) Deterrence is a very common and primary reason for the


punishment. It means dissuading an accused for his wrong doing by
making the punishment to the extent that the gains earned from the
offence is outweighed by the cost of punishment. In other words a
wrongdoer must pay the price of his crime to the individual or to the
society, which may be in terms of money or the discomfort, which
the accused has to suffer.

9
b) Punishment is essential to create a fear complex in the society and
specifically in the minds of wrongdoers that if he commits any crime
or illegal act, he will be liable to be punished as the example is being
set in the society. Thus it is a devise having two fold effects working
parallelly (a) it affects the accused himself physically and mentally
so that he may not commit the crime again (b) it sets an example on
the rest of the society that others may not indulge in themselves.

c) For maintaining law and order situation in the society as well as


safety and security of an individual as well as of their properties,
punishment works as an unseen divine bone which constantly
protects the society from endangerments of such crimes.

d) Punishment creates the state of affair of incapacitation for the


criminals because it restrains the criminals from doing further crimes
meaning thereby the confinements of prisoners creates disabilities of
criminals from committing further crimes. Prison system is ideal
places where hardcore criminals are sentenced for life imprisonment
and thus the society is protected e.g. sex maniacs or serial killers are
kept away from the society through out their life which is really
useful for a common good at large.

e) Honoring the values in the social life is essential for maintaining the
social structure. Punishment is a device by which the values codified
in law as well as in traditions of the society are reestablished in the
minds of people. Victor8 takes this even farther as he maintains that
it is immoral of a society not to apply such retributive justice in a
case where the guilt of the criminal has been proven beyond doubt
and where all legal appeals have been legitimized and exhausted.
Delinquents are the public enemies breaking the social harmony,
norms, established patent of life, valuable traditions, hence they are

8 Balest 24

10
the public enemies and they must be disarmed and should be
prevented from doing evil otherwise society would be destroyed.

f) The object of punishment is also can be considered of reforming the


accused by keeping him away from the society for specific period
and providing the atmosphere for him so that he can realise his own
guilt and correct himself along with the help of jail machinery and
when he is to be rehabilitated in the society, he can be proved as a
real gentleman who may respect the norms, traditions and laws of
the society. In history of Gujarat, Maharaj Ravishankar had himself
done successful experiments of reforming the hardcore criminals,
which has proved to be beneficial for accused himself, his family
and society at large.

g) "nulla poena sine liges / nulla poena sine crimen " This maxim
denotes that no punishment outside the law and no punishments
except for the crime. It means the justification of punishment must
be done in accordance with the norms of the nation means set rules,
standards and principles must be maintained by the society. Hence
no punishment can be except for the crimes and same way
punishment should not be beyond the legal provisos. It is primary
duty of the state to observe that all the citizens obey the established,
framed rules, regulations and standards of the country. A punishment
is not effected within the boundaries of law for the criminals for
their crime; it would create the atmosphere of anarchy in the society.

1.5 THEORIES OF PUNISHMENT

According to Taylor9 a heard of wolves is quieter and more at one


than so many man, unless they all had one reason in them or having one
power over them." As discussed above the objects and reasons of prison are

9 Jeremy Taylor, Works XIII, 306. Heber's Ed. cited in Salmond on Jurisprudence 12 Ed. (By Fi
tzgeral d) at p.88. "

11
not one but many in number and having multiple folds and impacts on the
social life. To maintain law and order, to maintain security and safety for
the members of the society, punishment is a major device which can be
described as unavoidable evil for common good.

The theories of punishment can be classified as under:

(1) Deterrent Theory.

(2) Preventive Theory

(3) Retributive Theory

(4) Reformative Theory

(5) Expiatory Theory

(6) Utilitarian Theory

1.5.1 Deterrent Theory

An Eighteenth Century Judge while awarding the death sentence to a


person stealing a sheep observed "you are to be hanged not because you
have stolen a sheep. But, in order that others may not steal a sheep". The
same principle is found true and correct for a white-collar, educated and
heavy income tax payer group in one case study conducted by Prof.
Schwartz and Miss. Sonia Orleans in 20th Century in year 1967.10 That the
element of deterrence did have some effect in changing the attitude towards
the Taxation laws).

Same way that the punishment some deterrent effect on many people
can be accepted without much debate. The efficacy of different aspects of
punishment can be pointed out from the old ancient principles of
punishments and methods of punishment has been reflected in Manusmruti,
Chanakya Niti of Hindu mythology, as narrated in Bible and as provided in

10 Schwartz and Orleans (1967), quoted by Nigel Walker in Sentencing in a Rational Society,
p. 59

12
Islamic laws, mutilation of a limb as a punishment in case of theft or
snatching the flash from the body or cutting the fingers for the theft was the
provision which appears very inhumane, cruel and creating a permanent
hardship to the criminal. But, it was having really a greater effect and
impact in the society as it was restraining the people from doing wrong. In
present era the said punishment is applied in Saudi Arabia, the people leave
their shops of gold and diamonds while performing the prayer i.e. Namaz,
without a single incident of theft. This itself is a conclusive evidence of
human psychology of the society of deterrent which keeps criminal away
from committing a crime; there temptations are rigorously controlled
because of the fear complex of severe punishment of limb.11

As recommended in the 84th Report of the Law Commission, the


strict action must be taken against the accused of rape because "rape is a
ultimate violation of self......humiliating event in woman's life needs to fear
of existence and sense of powerlessness...... experience of figuring in a
report of an offence may itself become another assault...... acquittal of many
defecto guilty rapist errs to sense of injustice.

As decided in case of State of Punjab v. Gurmit Bulvit Singh12,


tendency of the Apex Court was imposing the conviction and sentence not
less than the minimum. The same thing was established in case of State of
Karnataka v. Krishnappa.13 It was observed by Chief Justice Dr. A.S.Anand
that "The Courts are, therefore, expected to deal with cases of sexual crime
against women with utmost sensitivity. Such cases need to be dealt with
sternly and severely." The offence of rape is considered severe most as
compared to a murder. In any of the religious punishment as discussed
earlier nobody allows of forgiving or doing settlement for the crime against

11 Leon Radzi nowic z: A History of Engli sh Criminal Law and its Administration from 1750,
Vol . I.p.3
12 (1996) 2 SCC 384.
13 (2005) 4 SCC 75

13
the woman i.e. rape and this theory only is still applied forcefully to create
a deterrent in the society to rescue the woman and to prevent occurrence of
such severe offence against the woman. This theory may have negative
aspects as may be criticized by Stalwarts of legal field for other offences
but it has still capture the thinking of apex judiciary for some specific
offences for the common good of society.

1.5.2 Preventive Theory

The profounder of the punitive theory forwards the arguments that


object of preventive theory is to prevent the crime. The logic of this theory
works on the basis of certain disablements are to be created by the state to
check the behaviour of notorious anti-social elements and offenders e.g.
imprisonment creates disablements for a period for which they are behind
the bars, of course this is not a permanent solution for hardcore criminal
and habitual offenders because when they are released from the jails; they
commit the crime with additional force and with new techniques which
they might have learnt from other prisoners in jail. In the words of Shri
Krishna Iyer “they obtain post graduate diploma in criminology.” It is
observed in many cases, jails are not reforming the prisoners but it works as
nourishing and culturing labourites for the criminals. The Islamic Laws, the
Biblical Laws and old ancient laws were providing the amputation of body
parts of hardcore criminals or even death penalty was imposed which is
based on this theory. The preventive laws like MISA, PASA were based on
this theory, that to prevent a criminal (having a past bad criminal record) by
detaining him so that he cannot commit any crime which is popularly
known as 'preventive detention'. It can be narrated as elimination of a
criminal from the society, which may be for a short time, by keeping in jail
or by death penalty by not allowing him to be alive. It is also recommended
by the jurist that the preventive theory, if merged with deterrent theory
which may be known as "preventive deterrent theory" would be more

14
useful to the society for quick, effective results to control the crime rate in
the society.

1.5.3 Retributive Theory

Retributive theory is a new name given to old punishment theories


which is discussed earlier as narrated in Holy Bible or in rules of Shriyat or
as provided in Manusmruti etc, where the principle of tooth for the tooth,
eye for an eye, nail for the nail was a dominating principle to compensate
the psychological feeling of taking a revenge from accused by the victim or
victim's family. Actually, in this theory the victim is not capable of taking
any revenge against the accused. Hence, the state machinery helps him for
settling the vengeance. The another logic behind this theory is that, no
citizen should take law in one's hand meaning thereby the justice is a
portfolio of the state and not of the victim or victim's family. The negative
aspect of this theory is, it creates a severe sense of vengeance between
accused and victim themselves as well as their families and very
specifically when any innocent person is being punished for a small or petty
matter the chances of turning them into a hardened criminal increases
which is finally harmful to the society and the concerned accused too.

Immanuel Kant, 18th Century German Philosopher has expressed his


opinion as under: "Judicial punishment can never be used merely as a
means to promote some other good for the criminal himself or for civil
society, but instead it must in all cases be imposed on him only on the
ground that he had committed a crime, for a human being can never be
manipulated merely as a means to the purpose of someone else and can
never be confused with the object of law of things.14

While emphasizing the supremacy of legal justice, Kant has


observed "It is better than one man should die, than that the whole people

14 The Metaphysical Elements of Justice, Translated by John Ladd (Bobbs Merri ll , U.S.A.)
page No.100

15
should perish. If legal justice perishes then it is no longer worthwhile for
man to remain alive on this earth".

In support of the retribution theory following aspects can be


highlighted:

1. Retribution connects the offender to correct values. It is a message to


the offender what he did was wrong and therefore retribution cannot
be compared with revenge.

2. It will be in the interests of the victims to have retribution agents the


wrongdoers.

3. The offender should not get undeserved benefit out of their criminal
laws.

Niger Walker criticise retribution theory by saying "If the


retributionist is arguing that punishment is justified in spiritual
improvement, he is asking that the penal system should do the work of the
church.

1.5.4 Reformative Theory

“Res Ipsa Loquitur” means "thing speaks itself", thus the


nomenclature of this theory itself express the meaning of the theory that the
offender should be reformed. Mahatma Gandhi also pleaded this theory in a
way that we should kill the crime and not the criminal. Meaning thereby the
element of crime in human mind which is popularly known in terms of
legal language as " mens rea " - the guilty mind is to be reformed and that
the criminal attitude is to be corrected by sentencing in a jail which is a
reformative school for the criminals which gives such an environments,
facilities and opportunities for education, knowledge, professional and
vocational guidance and spiritual guidance to reform and to convert a
criminal into a civilised gentleman. This theory works on the basis of logic

16
that everybody is innocent person only because of some particular notion of
the mind he commits the crime that time. Otherwise all criminals are
basically good man, if they are provided good atmosphere to live. It is a
philanthropic attitude absolutely contrary to above all theories of
punishment. This theory is based under the focus of humanitarian approach
towards the criminals.

The Probation of Offenders Act, 1958 is absolute creation of this


theory which empowers the courts to release certain offenders on probation
during which time the accused should be authorised to remain in society
and if not found guilty for the same kind of offence again within the
stipulated time period, his punishments are waived and if he commits the
same kind of crime again, he will be liable for the punishment of the new
crime as well as of the previous too. Even Supreme Court has released
some accused in severe offence of rape also under this Act. As decided in
case of Rajendra Prasad v. State of U.P.,15 Justice Krishna Iyer of the
Supreme Court in his majority judgment observed:

"It is illegal to award capital sentence without considering the


correctional possibilities inside prison. Anger, even judicial anger, solves no
problems but creates many."

As far as the economic offences are concerned the attitude of the


punishment is rather liberal as compared to other criminals meaning
thereby if the accused of such crimes are making the repayment to the
public financial institutions, they were given the opportunity of getting the
bail as well as to facilitate to banks for the recovery of outstanding dues
because the ultimate goal is the recovery of public money and not just
punishing the criminal at the cost of public money.

15 AIR 1979 SC 916

17
1.5.5 Expiatory Theory

This theory can be explained in very simple language as under:

Crime + Punishment = innocence

"On this view, crime is done away with, cancelled, blotted out or
expiated by the sufferings of its appointed penalty. To suffer punishment is
a debt due to the law that has been violated. Guilt plus punishment is equal,
to innocence."16

Of course this theory is not applicable for all types of offences or in


civil matters. The punishment is not an ultimate solution which wipes away
the sin of an accused and by which he becomes innocent. Reid J. in Ex-
parte observed.17 A pardon reaches both the punishment prescribed for the
offence and the guilt of the offender; and when the pardon is full, it releases
the punishment and blots out the existence of the guilt, so that in the eye of
the law the offender is as innocent as if he had never committed the
offence. If granted before conviction, it prevents any of the penalties and
disabilities consequent upon conviction, from attaching, if granted after
conviction, it removes the penalties and disabilities, and restores him to all
his civil rights, it makes him, as it were, a new man, gives him a new credit
and capacity."

1.5.6 Utilitarian Theory

The utilitarian consider the punishment as an instrument to achieve


to end the crime. In other words because of punishment the accused is
restrained doing the crime again, by himself, parallel the anti-social
elements of the society gets deterrent effect of the punishment hence they
are also restrained from committing the offence. Punishment is considered
as a device to reform the offender and parallel reduce the crime. Thus the

16 Salmond on Jurispr ude nce, Edited by Fitzgeral d 12th Ed. p. 99


17 Garland (1873) 18 L. Ed. 366

18
punishment is the use for achieving good results for common good in
society.

1.6 KINDS OF PUNISHMENT

As discussed above punishment is an unavoidable evil like medicine


or surgery to the human body, depending upon the need of body, primarily
medicine helps for the recovery of good health and on failure of medicine
or in case of seriousness of the patient the surgery is also needed, likewise
punishment depending upon different factors is imposed on accused.

The determining factors for imposing the punishment can be


considered and enlisted as under:-

a) Provisions of prevailing acts and criminal laws

b) Gravity of the offence

c) Repetitiveness of the offence (Recidivism)

d) Age, Sex, Education, Social background etc.

e) Circumstances of offence and criminal history of the Accused if any.

In view of all above factors, the punishment is imposed. The kinds of


punishment can be classified as under:-

The Punishments provided in many parts of the world, including


India are death, imprisonment for life, rigorous and simple imprisonment,
forfeiture of property and fine.

1.6.1 Corporal Punishment

Mutilation, branding and flogging were recognised as the mode of


punishment throughout the world, since the growth of human society. All
religion, emphasise and advise for Corporal Punishment. It is directly
affecting the human body of the accused. e.g.

19
a) Whipping- by the state authority or by victim or relatives of victim
when accused is whipped by the hunter or by stick in public place.
b) Flogging - it is also a type of beating the accused in public place.
c) Mutilation - it is process of amputing any part of body of the accused
as decided by the competent court of Kaji and by making him
permanently disabled of particular body organ e.g. cutting hand for a
theft.
d) branding - it is a process of creating a special identity of an accused
by branding him so that whole society will recognize him as an
offender which would give two effects, the first about the tarnishing
the reputation and public respect and second it will make the people
aware about the presence of branded person which may be used as a
precautionary measure. Two Pickpocket ladies were branded by the
words "me jeb katri hu" at their forehead by imposing the tattoos,
with an intention to make public conscious about their presence in
masses, to prevent the pick pocketing and parallel to humiliate both
of them, this branding was done by Punjab Police. National Human
Rights Commission took the cognizance on 12/01/1994 against the
Amritsar Police Personnel and the petition was filed before Punjab
and Haryana High Court on 17/01/1994 by engaging Senior
Advocate Mohinderjit Singh Shethi. The High Court ordered for
plastic surgery to both of them at the cost of police officers.
The whipping act was prevalent in U.K. enacted in year 1864.
Subsequently was replaced and repealed by new Whipping Act, 1909 was
finally abolished in 1955. Flogging was also abolished before a long ago in
England. Yet, if this type of punishment is itself a dead letter, the issue
whether or not to reintroduce. It is very much a living one, and as recently
as 1960 the Advisory Council on the Treatment of Offenders was asked to
consider the desirability of such a course.18

18 P. J. Fitzgerald : Criminal Law and Punishment (Cl arendon La Series, 1962), p.228

20
1.6.2 Fine

“Fine is the most common punishment in every part of the world and
it is a punishment, the advantages of which so great and obvious that, we
propose to authorise the courts to inflict it in every case… Imprisonments,
transportation, banishment, solitude, forced labour are not equally
disagreeable to all men. In imposing a fine it is always necessary to have
regard to the pecuniary circumstances of the offender, as to the character
and gravity of the offence. The mullet which is ruinous to the labourer is
easily borne by a tradesman and is absolutely unfelt by a rich zamindar.”19

Fine was imposed even in old age of Manusmruti or in Bible or in


Shariyat. In present society it is commonly acceptable punishment to all
types of criminals, such as white-collar, hardcore criminals and petty
criminals. Fine are normally imposed for offence pertaining to property like
embezzlement, fraud, theft, violation of lottery and gambling laws and
some petty offences or even for breaking the traffic rules in present days.

Indian Penal Code imposes the fine in four ways:

(a) As a Sole punishment in specified offences in which the highest


limit is fixed up under the act.

(b) In certain cases alternative punishment is imposed in form of fine


e.g. five years rigorous imprisonment and 25,000 rupees fine and
on non-payment of fine of Rs.25,000 additional one year rigorous
imprisonment would be imposed - as many times commonly
ordered by judiciary.

(c) In certain offence in mandatory way.

(d) In some offences the fine is obligatory.

19 Note A, Reprint, p.97 of t he Commission’s Report, quoted by R.C.Nigam: Law of Crimes in


India.

21
The history of fine is, very old as much as the civilization of human
society, as narrated above in our Holy religious books. But, Magna Carta
and Bill of Rights both have imposed the restriction on excessive and
unreasonable fines.

1.6.3 Forfeiture and confiscation of property

The underline thought of this punishment is to prevent an accused or


his dependants of enjoying unlawful benefits of properties means, thereby
accused and his families are deprived of wrongful enjoyment of gains
obtained by illegal activities and offences or as a penal action for the
offences under sections 126,127 & 169 of Indian Penal Code.

1.6.4 Banishment

The patients of severer contagious deceases are kept away from the
society with a view to save the society on one hand and to improve the
health of the patient on other, the same theory of banishment works by,
separating an accused from the society which may be for small period, long
period or for whole life. Popularly termed as punishment of "Kala Pani" in
India, hardcore criminals, rebels, revolutionaries, reformers, political
enemies were transported from India to Andaman & Nikobar Island.
Presently also externment (Tadipar)is also a quite regular tradition for the
hardcore criminals, anti-social elements who is having recidivist criminal
records by the competent authority and in case of violation by criminals by
entering into prohibited areas it again attracts further punishments. Thus
presently punishment by externment is very commonly used and proven to
be the effective device for controlling the crime.

1.6.5 Imprisonment

Imprisonment is very simple and ancient punishment as compared to


other punishment, which primarily restricts personal liberty freedom of
accused, affects his personal image and social recognition. “Traditionally it

22
was held that imprisonment should be used only for the custody of
offenders until such time as they could conveniently be dealt with, and this
view prevailed in Europe from the time of the Roman Emperor Justinian,
for the next thousand years so. In medieval, England prisons were places
where suspects were detained until the royal Judges came round on circuit
with a commission of ‘Gaol delivery’, to empty the jails and inquire into
the alleged crimes.” The reasons behind imprisonment of an accused can be
categorized as under:-

(a) By imprisonment, the accused is separated from the society hence


he is being restrained from committing further crimes hence the
society is also saved from further losses to the victims.

(b) By imprisonment, the accused is separated from his group of


criminals, family and relatives and gets the time for self-realisation
and correct him.

(c) By imprisonment, the accused looses his personal liberties and


freedoms because of these deprivations he feels the sense of
punishment and makes him realize about his guilt, parallel victim’s
sense of vengeance is satisfied, a deterrent effect also created in
society.

(d) By imprisonment, the state machinery can work in direction of


correcting the accused meaning thereby the reformative theory of
punishment becomes operative directly and accused can be
converted to thorough gentlemen of the society and on completion
of imprisonment the members of the society is handed over back to
the society with necessary reformations.

The rehabilitation is very serious problem for the accused after the
imprisonment. It is understood that after release from prison, the accused
becomes free but, on the contrary the whole world become prison for him.

23
Because he is never accepted by the society even, if he is reformed as a
gentleman. The brand name of an accused or a "prisoner" follows him like
shadow not only in days but also in night.

1.6.6 Solitary Confinement

Late Prime Minister Shri Jawaharlal Nehru was sentenced to prison


many times as freedom fighter during his youth. He has narrated this issue
with following observations in his autobiography.20

“Solitary confinement even for a short period, is a most painful


affair; for it to be prolonged for years is a terrible thing. It means the slow
and continuous deterioration of the mind till it beings to border on insanity;
and the appearance of a look of vacancy, or a frightened animal type of
expression. It is killing of the spirit by degrees, the slow vivisection of the
soul. Even if a man survives it, he becomes abnormal and an absolute misfit
in the world”. The Indian Penal Code, 1860, Section 73 & 74 provide the
time limits solitary confinement as under :-

(A) Section 73

Whenever any person is convicted of an offence for which under this


Code the Court has power to sentence him to rigorous imprisonment, the
Court may, by its sentence, order that the offender shall be kept in solitary
confinement for any portion or portions of the imprisonment to which he is
sentenced, not exceeding three months in the whole, according to the
following scale, that is to say –

(a) A time not exceeding one month if the term of imprisonment shall
not exceed six months;

(b) A time not exceeding two months if the term of imprisonment shall
exceed six months and shall not exceed one year;

20 Jawaharlal Nehru ; A n Auto biography, P.222.54

24
(c) A time not exceeding three months if the term of imprisonment shall
exceed one year.

(B) Section 74

In executing a sentence of solitary confinement, such confinement


shall in no case exceed fourteen days at a time, with intervals between the
periods of solitary confinement of not less duration than such periods; and
when the imprisonment awarded shall exceed three months, the solitary
confinement shall not exceed seven days in any one month of he whole
imprisonment awarded, with intervals between the periods of solitary
confinement of not less duration than such periods.

The provisions of this Section are absolutely clear

(a) solitary confinement must not be more than 14 days at a time (b)
at the second stage when solitary confinement is to be imposed should
commence only and only after the gape of 14 days from the end of first
solitary confinement (c) when the solitary confinement is more than 3
months then for each month of imprisonment solitary confinement should
not increase more than 7 days and in case of subsequent confinement it
should not be lesser period of gap between two periods of confinement. In
toto during 12 months, maximum solitary confinement should not be more
than 84 days and which is to be divided in 12 portions.

This punishment is imposed in the rarest of rare case because it is


very a brutal form of punishment. In England in year 1893 this punishment
is repealed.

1.6.7 Capital Punishment

Capital punishment is also very punitive and brutal method of


punishment which is officially imposed since ages, as provided by different
religions and theories of punishment, for the grievous offences such as
murder, rape, murder with rape, sedition etc. Indian Penal Code also
provides the Capital Punishment for following offences:-

25
Section-121, Waging or attempting to wage war, or abetting waging
of war, against the Government of India.

Section-132, Abetment of mutiny, if mutiny is committed in


consequence thereof.

Section-194, Giving or fabricating false evidence with intent to


procure conviction of capital offence.

Section-302, Punishment for murder.

Section-303, Punishment for murder by life-convict.

Section-305, Abetment of suicide of child or insane person.

Section-396, Dacoit with murder.

Bentham and Becceria were the crusade leaders in England and


Europe against the capital punishment with the logic that the punishment
itself is an evil, it should not be enhanced by the excessive efforts which,
creates severe effect on the life of accused and family members and friends
too. Punishment should be imposed with the balance between accused and
victim or victim’s family members. Capital punishment imbalances the
justice because, punishment leads to a severe vengeance in the mind of the
accused, subsequent to punishment against the family members of the
victim, which harms both of them and equally to whole society. In England,
Romilly was the leader of reformers against the capital punishment. Sydney
Silverman who got success in his efforts by getting a new Act “The Murder
(Abolition of Death Penalty) Act, 1965. About 192 countries have abolished
this capital punishment.

In India also as decided by the Apex Court in case of Bachan Singh


v. State of Punjab, 1980.21 In popular case of loot, rape and murder of
Sanjay Chopra and Gita Chopra, Billa and Ranga have been imposed
capital punishment. Their appeal was finally rejected by Supreme Court.

21 SCC 684.. 1980 SCC (Cri.580).

26
Capital punishment is the highest punishment under the deterrent theory of
punishment which clearly marks a full-point on the life of hardcore
criminal who cannot be allowed even to live in jail. The controversy of
capital punishment is a world wide debate, which cannot be concluded in
few lines; hence the discussion is sufficient at this juncture.

1.7 INTERNATIONAL OBLIGATIONS AND GUIDELINES

In India, the International Covenant on Civil and Political Rights


(ICCPR) remains the core international treaty on the protection of the rights
of prisoners. India has ratified the Covenant in 1979 and is bound to
incorporate its provisions into domestic law and state practice. The
International Covenant on Economic, Social and Cultural Rights (ICESR)
states that the prisoners should have a right for getting the highest attainable
standard of physical and mental health. Apart from the civil and political
rights, so called second generation economic and social human rights as set
down in the ICESR also apply to the prisoners. Earlier, United Nations
Standard Minimum Rules for the Treatment of Prisoners, 1955 consisting
of five parts and ninety-five rules. Part one providing the rules for the
general applications. It declares that there would be no discrimination on
grounds of race, color, sex, the languages, religions, political views or other
opinion, national or social origin, property, birth or any other status. At the
same time it is strongly need of respecting the others’ religious belief and
moral precepts of the group to which the prisoners belong. The standard
rule respects the consideration to the separation of the different categories
of prisoners. It is indicating that the men and women must be detained in
separate institutions. The under- trial prisoners must have to keep separate
from the convicted prisoners. Further, it advocates the complete separations
between the prisoners detained under civil law and the criminal offences
made by them. The UN standard Minimum Rule states that, it is mandatory
to provide the separate residence for young and child prisoners from the

27
adult prisoners. Subsequent UN directives have been the Basic Principles
for the Treatment of Prisoners (United Nations 1990) and the Body of
Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment (United Nations 1988)22.

For the issues of the prison offences and punishment standard


minimum rules are very clear. These rules state that “no prisoner should be
punished unless he/she has been informed of the offences alleged against
him/her and given a proper opportunity of presenting his/her defence”. It
recommends that the corporal punishment placing in a dark cell and all
“cruel, in-human or degrading punishments should completely be
prohibited as the mode of punishments and disciplinary actions” in the jails.

For the Foreign Assistance for the prison in India is very important
for international obligation. India gets Foreign Assistance for the Prisoner
from the many countries (Refer Annexure 2).

1.8 MAJOR PROBLEMS OF PRISONS RELEVANT TO INDIA

Despite the relatively low number of persons in prison as compared


to many other countries in the world, there are some very common
problems across the jails in India, and the situation is likely to be the same
or worse in many developing countries. Overcrowding, prolonged detention
of under-trial prisoners, unsatisfactory living conditions, lack of treatment
programmes and the allegations for the indifferent and even inhuman
approaches of prison staff have repeatedly attracted the attention of the
critics over the years.

1.8.1 More crowding

Congestion in jails, particularly among under trials has been a source


of concern. Law Enforcement Assistance Administration National Jail

22 Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment General Assembly Resolution 43/173 (9 December 1988)

28
Census in 1970 had revealed that 52% of the jail inmates were awaiting
trial23.

Obviously, if prison overcrowding is to be brought down then under-


trial population has to be reduced drastically. Of course, this cannot be
happened without the courts and the police working in tandem. The three
wings of the criminal justice system would have to act harmonically.

Speedy trials are frustrated by a heavy court workload, police


inability to produce the witnesses promptly and a recalcitrant defense
lawyer who was bent upon seeking adjournments, even if such tactics harm
his/her client. Fast track courts have helped to the much extent, but it has
not made any measurable differences to the problem of pendency.
Increasing the number of courts could not bring about a desired difference
as long as the current `adjournments culture' continues (Raghavan 2004).24

1.8.2 Corruption and extortion

Extortion by prison staff, and its less aggressive corollary, guard


corruption, is common in prisons around the world. Given that the
substantial power, for guards exercised over inmates, these problems are
predictable, but the low salaries that guards are generally paid severely
aggravate them. In exchange for contraband or special treatment, inmates
supplement guards' salaries with bribes. An unpublished PhD dissertation
from Punjab University on “The Functioning of Punjab Prisons: An
appraisal in the context of correctional objectives” cites several instances of
corruption in prison. Another article suggested that food services are the
most common sources of corruption in the Punjab jails. Ninety five percent
of prisoners felt dissatisfied and disgusted with the food served25.

23 Seventy eight report on congestion of under trial prisoners in jails (Law Commission of India
1979).
24 RAGHAVAN R.K. The hell that is prison Volume 21 - Issue 26, Dec. 18 - 31, 2004 front line
25 Roy JG. 1989. Prisons and Society: A study of the Indian jail system. Gian Publishing House,
New Delhi11

29
1.8.3 Unsatisfactory living conditions

The overcrowding in the prisons leads itself to unsatisfactory living


conditions. Although the several jails have reformed outlined earlier have
focused on issues like diet, clothing and cleanliness, unsatisfactory living
conditions continue in many prisons around the country. A special
commission of inquiry, appointed after the 1995 death of a prominent
businessman in India’s high-security Tihar Central Jail, reported in 1997
that 10 000 inmates held in that institution endured serious health hazards,
including overcrowding, “appalling” sanitary facilities and a shortage of
medical staff.26

“No one wants to go to prison however good the prison might be. To
be deprived of the liberty and family life and friends and home
surroundings is a terrible thing.”

“To improve the prison conditions what does not mean that prison
life should be made soft; it means that it should be made human and
sensible for prisoners”27.

1.8.4 Staff shortage and poor training

Prisons in India have a sanctioned strength of around 49030 of


prison staff at various ranks, of which, the present staff strength is around
40000. The ratio between the prison staffs and the prisoners in Indian
prison is approximately 1:7. It means only one prison officer is available for
7 prisoners in India, while in the UK, 2 prison officers are available for
every 3 prisoners. 28

26 Human Rights Watch 2006


27 Pandit Jawaharlal Nehru wrote in India and the World Prison Land (pp.108-129)
28
Karnam M 2008. Prison modernization:Does it bring about change? http://www
.humanrightsinitiative.org/new/2008/prison_modernisation_does_it_bring_change. Retrieved on
5th Nov 2014.

30
1.8.5 Inequalities and distinctions

“Though the prisons may be supposed as the leveling institutions in


the world where some different variables that could create/develop the vital
effects on the conditions of confinement of the criminal records and their
inmates and also their behaviour in prison, other factors play an important
part in many countries” (Neier et al 1991). This report provided by the
Human Rights, watch specifically cites countries like India and Pakistan,
where a “rigid” class system exists in the prisons. It states that under this
system, special privileges are accorded to the minority of the prisoners who
came from upper and middle classes of their irrespective of the crimes they
have committed or the way they comport themselves in prison29.

1.8.6 Inadequate prison programmes

Despite the problems of overcrowding, manpower shortage and


other administrative difficulties, innovative initiatives have been
undertaken in some prisons. For example the Art of Living is carrying out a
SMART programme in Tihar Jail. It includes two courses per month with
follow up of the sessions every weekend. Two courses are annually
conducted for prison staff. But these may be more by way of exceptions
and experiments. A Srijan project is aimed at providing social rehabilitation
there. Still, such programmes are few and far in from Indian Prison. In
India, many prisons having the vocational training activities, but these are
often outdated even. Hardly any of the prisons have well planned prison
programmes providing the daily structured activities, vocational training,
pre-discharge guidance and post-prison monitoring.

1.8.7 Poor spending on health care and welfare

In India, an average of US$ 333 (INR 10 474) per inmate per year
was spent by prison authorities during the year of 2005, distributed under

29 Neier, Aryeh. 1991. "Watching Rights." The Nation

31
the heads of food, clothing, medical expenses, vocational & educational,
welfare activities and others (National Crime Records Bureau (NCRB)
2005). This is in contrast to the US, where the average annual operating
cost per state inmate in 2001 was $ 22,650 (the latter presumably also
includes salaries of prison staff). The maximum expenditure is on food in
Indian prisons. West Bengal, Punjab, Madhya Pradesh, Uttar Pradesh, Bihar
and Delhi reported relatively higher spending on medical expenses during
that year, while in Bihar, Karnataka and West Bengal reported relatively
higher spending on vocational and educational activities. Tamil Nadu,
Orissa and Chattisgarh reported as it is relatively higher spending on
welfare activities regarding with the prison.30

1.8.8 Lack of legal aid

In India, legal aid to those who cannot afford to retain the counsel
which is only available at the time of trial and not when the detainee is
brought to the remand court. Since the majority of prisoners, those are in
lock up as well as those in prisons have not been tried, the absence of legal
aid until the point of trial reduces greatly the value of the country’s system
of legal representation to the poor. The lawyers are not available at the
point when many of them need such assistance.

A workshop was conducted by the Commonwealth Human Rights


watch in the year of 1998 in Bhopal (M.P.), have focused on several aspects
related to legal aid. It was pointed out that around 70% of the prison
population was illiterate and lacked an understanding of prisoners’ rights
even. Thus the poor prisoners in the prison did not always get the
provisions in law though the State was obliged to provide the legal aid. As
also observed by the Mulla Committee, most prison inmates belong to the
economically backwards classes and this could be attributed for their

30 National Crime Records Bureau (NCRB) 2005.

32
inability to arrange the bail bond. Legal aid workers are needed to help such
a person in getting them released either on bail or on personal
recognizance. The bail provisions must be interpreted liberally in the case
of women prisoners with children, as children suffer the worst kind of
neglect in the world when the mother is in prison.

The lack of good and efficient lawyers in the legal aid panels at that
time was also a concern what raised. Several suggestions were made to
speed up of the trial processes, so that the population of under trials could
be reduced to lower population in prison. Some of the suggestions provided
were expeditious holding of trials, making it more possible for under trials
to plead guilty at any stage of the trial, system of plea bargaining. In a
seminar the tough efforts have been made at the Tihar Jail by the University
of Delhi faculty and students of law in the field of legal aid were
highlighted. This included imparting legal literacy to the prisoners,
sensitizing the prison administration, taking up individual prisoners to
provide a legal aid, involving para-legal staff to work with prisoners, both
convicts and undertrials. The seminar had suggested for Lok Adalat
involvement to be greater and that constant monitoring of prisons was
necessary to identify inadequacies and shortcomings in the prison
administration. It finally suggested that there would be need for law reform
as essential to the entire system of legal aid.

A similar finding had been noted in the NIMHANS-National


Commission for Women study in the Central Prison, Bangalore. In the
Indian prison many of the women were illiterate, had never stepped out of
their houses, had having no any financial resources and many had been
arrested on petty charges. Most had no idea about legal procedures, such as,
what is the process of trial, how to arrange for a defense lawyer, what laws
exist to protect their children or property etc.

33
1.8.9 Abuse of prisoners

Physical abuse of prisoners by the guards is another chronic problem


in the prison of India. Some countries is continued to permit the corporal
punishments and the routine uses of leg irons, fetters, shackles, and chains.
In many prison systems in India, the unwarranted beatings are an integral
part of the prison life.

Women prisoners in Indian Prison are particularly vulnerable for the


custodial sexual abuse. The problem was widespread in all over the world
especially in the United States, where male guards outnumbered women
guards in many women's prisons. In some countries, Haiti being a exclusive
example, female prisoners were even held together with male inmates, a
situation that exposed them to rampant sexual abuse and violence.

A book reviewing prison services in Punjab, reported that, to get


food supplements, or blankets in winter season, class c-prisoners must fan
the convict officers, or massage their legs, or even perform sexual favors
for them in the prison. The enslavement of other prisoners for the convict
officers who effectively run the prisons is particularly severe for new
comers (known as amdani). In prison, they are teased, harassed, abused and
even tortured as part of the process of breaking them in.31

1.8.10 Problems of women prisoners in India-custodial rape( through a


case study)

For women who are detained by the police, a particular danger is


rape in custody. Many of the victims are migrant women who lack the
established community connections that would make protests in their behalf
effective. Renu Mandal, 27, had arrived in Delhi from West Bengal in
January 1990, just five days before the incident that led to her rape in police

31 Human Rights Watch 2001.

34
custody. She settled in an area known as Chittaranjan Park that is largely
populated by Bengali migrants, moving in with her sister and her sister's
husband. On January 11, Renu quarreled with a neighbor's child and
slapped the child. The episode escalated into a dispute between the two
families. two police officers who were in the neighborhood at the time
intervened and took Renu and her brother-in-law into custody. The brother-
in-law was beaten and released; Renu was detained and raped. Shortly
afterwards, she was released. When she got back to her sister's home, she
related what had happened to her and her brother-in-law and others took her
to see a local official to complain. In addition, she was examined at the All
India Institute of Medical Sciences to verify what happened to her. As a
consequence, one police officer was dismissed and another was suspended.

It is impossible to assess the frequency of custodial rape. According


to the PUDR, ‘chance circumstances’ brought these cases to light.
Otherwise they probably would have gone unreported. To a far greater
extent than in Western countries, the victims of rape risk punishment
themselves or ostracism if what happened to them becomes known. They
may be rejected by their husbands and families and, in the case of
unmarried girls, the chances of marriage are reduced drastically. Such crime
statistics as are available in India make it seem that rape is exceedingly
rare, gross under reporting seems the best explanation. In the case of rape
in custody, the factors that militate against reporting are especially great. it
is unlikely that the woman's shame would ever be known by anyone other
than the victim and her rapists if she maintains silence,the fear of further
retribution is especially great when it is the police who are the rapists; the
woman has little or no opportunity to raise a prompt outcry after the rape,
and the almost certain result of a complaint is that the victim would suffer
more while nothing would happen to her rapists..

35
1.9 CONSEQUENCE OF PRISON STRUCTURE AND
FUNCTION

Physical and psychological torture resulting from overcrowding,


lack of space for segregation of sick, stinking toilets for want of proper
supply of water, lack of proper bedding, restrictions on movement resulting
from shortage of staff, parading of women through men’s wards for lack of
proper separation, non-production of undertrial prisoners in courts,
inadequate medical facilities, neglect in the grant of parole, rejection of pre-
mature release on flimsy grounds, and several such purgatory result not
from any malfeasance of the prison staff but from the collective neglect of
the whole system (Human Rights Watch 2001).

In many places in our country, the non-governmental organizations


are there what provide rehabilitation programmes and a few provide
aftercare. Some notable examples are including the Prison Fellowship
International in Indian Prison system. Most of the prisoners in Indian prison
are ill prepared for release. No steps are taken for minimizing of their
chance of committing re-offences. Programmes for developing a set of
values, the ethos of honest labour and to build pro-social ties with the
community are essential.

The well-established prisons in India is with the continuous of good


leadership generally impart literacy to the illiterate inmate and offer
facilities for higher education to those who were already reasonably
educated and are willing for improving their knowledge so that they are
usefully employed after getting back to the community.

1.9.1 Health Problems in prisons

In the prison the problem of the overcrowding, poor sanitary


facilities, lack of physical and mental activities, lack of decent health care,
all increase the likelihood of health problems have increased. Kazi et al

36
(2009) mention that prisons are “excellent venues for infectious disease
screening and intervention, given the conditions of poverty and drug
addiction”.

It is surprising and indeed shocking that despite the large prison


population in India, there is a complete absence of published information
regarding the prevalence of health problems in prisons. An exception is a
small study in the Central Jail at Hindalga in the Belgaum (district of
Karnataka) 850 prisoners were evaluated.32 The follow-up of these
prisoners for a period of 1 year has revealed that anaemia (54.82%) was
common morbidity among the chronic morbidity followed by respiratory
tract infections (21.75%) and with diarrhoea (13%) for acute morbidity.
Pulmonary TB and HIV contributed 2% and 1.5% respectively. Other
morbidity included diabetes (3.6%), senile cataract (7%), pyoderma (12%)
etc. Very few details are available for these works are including the criteria
for diagnosis, investigations carried out etc. In another study, anemia was
the common physical problem, what noted in Indian prisons.33

1.10 PRISONS ACT 1894

It is the Prisons Act 1894, on the basis of what the present jail
management and administration operates in India. This Act has hardly
undergone through any substantial change. However, the process of
reviewing of the prison problems in India has been continued even after
this. In the report of the Indian Jail Committee (IJC) 1919-20, for the first
time in the history of prisons, 'reformation and rehabilitation' of offenders
were identified as the main objective of the prison administrator. Several
committees and commissions have been appointed by both central and state
governments after Independence, which has emphasized humanization of

32 Letter in the Indian J Community Medicine, Bellad et al 2007.


33 Gupta et al., 2001.

37
the conditions in the prisons. The need for completely overhauling and
consolidating the laws related with the prison has been constantly
highlighted.

The Government of India Act 1935 has resulted in the transfer of the
subjects of jails from the centre list to the control of provincial
governments, hence further reduced the possibility of uniform
implementation of a prison policy at national level. The State governments
thus having their own rules for the day to day administration of prisons in
India, upkeep and maintenance of prisoners, and prescribing procedures.

In the year of 1951 the Government of India had invited the United
Nations expert on correctional work, Dr. W.C. Reckless to undertake a
study on the prison administration for Indian Prison and to suggest policy
reform for it. His report was titled as 'Jail Administration in India' made a
plea for transforming jails into reformation centers so that reformation of
India could be easy for the Indian prison. He also recommended that the
revision should be for outdated jail and provided the manuals. In the year of
1952 the Eighth Conference of the Inspector General’s of Prisons, have also
supported the recommendations of Dr. Reckless regarding prison
reformation. Accordingly the Government of India has appointed the All
India Jail Manual Committee in the year of 1957 for preparing a model
prison manual. The committee submitted report in 1960. The report had
made a forceful plea for formulating a uniform policy and latest methods
relating with the jail administration, probation, after-care, juvenile and
remand homes, certified and reformatory school, borstals and protective
homes, suppression of immoral traffic etc. The report also suggested the
amendments in the Prison Acts 1894 to provide a legal base for correctional
work.

38
Box 1.1: Press Information Bureau

Press Information Bureau, Govt of India


Press Release August 4, 2009
Lok Sabha The Union Government has received proposals from State
Governments regarding modernisation of prisons in their respective
States. Considering the demand of various States for granting further
financial assistance for construction of new jails/additional barracks so as
to address the problem of overcrowding, the Ministry of Home Affairs
has initiated the process of formulating second phase of the scheme of
modernization of prisons. Necessary steps are being taken in this regard
in consultation with the Ministry of Finance. The proposal so received
from the state Governments will be considered only after the proposal
mooted by the Ministry of Home Affairs is approved by the Cabinet. The
proposals of State Governments shall be processed depending upon the
terms of approval of the scheme as also the funds sanctioned by the
Cabinet and provided in the budget.
This information was given by the Minister of State in the Ministry
of Home

The scheme for modernization of prisons was launched in 2002-03


with the objective of improving the condition of prisons, prisoners and
prison personnel. The components include construction of new jails, repair
and renovation of existing jails, construction of additional barracks,
improvement in the sanitations & water supply and construction of staff
quarters for prison personnel. Activities under the scheme have been
construction of 168 new jails, renovations, repairs and construction of 1730
new barracks, construction of new quarters of number 8965 for staff as well
as improvement of water and sanitation in jails. The scheme had extended
to 31.3.2009, without affecting the total outlay of Rs.1800 crore (Govt. of
India, Ministry of Home Affairs). The second phase has been envisaged in
2009 with a financial outlay of Rs 3500 crores. However, manhy questions

39
have been raised whether modernization can bring about the change
without integrity of any purposes. Can isolation of any institution from
public support and scrutiny make it transparent and attentive for its
objectives? Any government that claims attempting to integrate the felon
into society first of all should declare prison is as much a public institution
as that of a university or hospital; remove its isolation and integrate it
functionally and physically into society; make police, judiciary, medical
and educational departments, conscious of their accountability for pathetic
prison conditions (Karnam 2008). Otherwise the most of things are not
going to change just with the allocation of crores of rupees and launching
of schemes.34

1.11 THE MODEL PRISON MANUAL

The Indian Jail Committee (IJC) prepared the Model Prison Manual
(MPM) and presented it to the Government of India in 1960 for
implementation. The MPM 1960 consists the guiding principles on the
basis of which the present Indian prison management is governed.

On the basis of the Model Prison Manual the Ministry of Home


Affairs, Government of India, in 1972 appointed a working group in the
Indian prisons. It brought out in its report that there is much need of a
national policy for the prisons. It also made important recommendations
with regard to the classification and treatment, for the offenders and laid
down the principles.

1.12 PRISON SYSTEM AND ITS SOCIAL COMMUNITY

A prison or jail can be defined as a facility in which prisoners


are forcibly kept and are denied of variety of freedoms. Prison are
commonly used as a part of a criminal justice system, in which individuals
officially convicted of crimes are confined to a jail or prison until they are

34 Karnam M 2008. Prison modernization:Does it bring about change

40
either brought to trial to identify and justify their guilt or complete the
period of custody they were sentenced to after being found guilty at their
trial. Authoritarian regimes also frequently use prisons and jails as tools
of political subjugation to punish political crimes, often without trial or
other such legal due process; however this use is illegal under most forms
of international law governing processes of justice. In times of war or
conflict, prisoners of war may also be held in military prisons or prisoner of
war camps, and the large groups of civilians may be imprisoned in the
custody camps.

Datir, 1978 tells us that the word Prison has been derived from the
Latin word which means, “To seize”.

Mueller, 1970 tells that it is a place where the penalty of caging is


performed35.

John Howard (The British reformer) in his book The State of the
Prisons in England and Wales (1777) has provided observation on prison
condition of Europe. The book influenced the passage of a law that led to
the construction of the first British prisons36.

Unlike to social system, prison system has a different place in the


society. The prison system isolates the criminals from the general society,
so that they cannot commit crimes during certain period of times. Also, our
society wants retribution for improving the conditions. The prison system,
in India, is expected to make life unpleasant for the people who, by their
crimes, have made others lives unpleasant. Finally, Indian society wants to
reduce crime rates now.

Sutherland and Cressey, 1960 in his research found that during the
first part of the 16th Century in Frankfurt it was ordered that for certain

35 International Journal of Scientific & Engineering Research, Volume 3, Issue 12, December-
2012 ISSN 2229-5518
36 The British reformer) in his book The State of the Prisons in England and Wales (1777)

41
offences, “the Criminal shall be imprisoned and forgotten for a time”. They
also said that the prison system is expected to reduce crime rates not only
by reforming the criminals but can also by deterring the general public from
behavior which is punishable by imprisonment Before the 1700’s,
governments hardly ever imprisoned offenders for punishments37.

Clemmer, 1953 defines that no society can be crime free and


criminals are found in all age groups, among both sexes and in all strata of
society. Apparently, the prison represents is the worst of the social system.38

Grosser, 196839 defined though prison system has a unique position


in the society in which organizations compete either for economic resources
or for the loyalty and support of group members as it is non competitive in
the sense, that no other organization challenges it directly. For the
Prisoners, prison system is most closed or protected system in India.
Members of the larger society (except for the relatives of the inmates, and
official and non official visitors) having no direct stake in the prison in
terms of ownership, goods, services or reciprocal relation of any kind.
Thus, the prison system is relatively most protected from outside scrutiny.

Morris, 1995 The prisons of the ancient world have disappeared.


Those of it antiquity and medieval Europe have fallen into ruin, have been
recycled into the other uses or those have been preserved as Museums, their
varied history usually explained only in the terms of modern concept of
penology40.

Chowdhary, 2002 The first phase of ancient civilization in India


when Dharma was Supreme, the offenders were shown maximum

37 Sutherland, Edwin H. and Cressey, Donald R. (1960) Principles of Criminology, Sixth


Edition, Philadelphia: Rowman and Littlefield.
38 Clemmer, Donald (1953) The Prison Community, New York: Holt Rhinehart and Winston.
39 Grosser, George H. (1968) External Setting and Internal Relations of the Prison, edited by
Lawrence Hazelrigg in Prison within society, New York: Doubleday
40 Morris, Norval and David J. Rothman (1995) The Practice of Punishment in Western Society,
New York: Oxford University Press

42
tolerance, but that was gradually ousted by political party of the King in the
middle ages. The Muslim Law which was prevalent in the medieval period
of India, it is revealed that imprisonment was not recognized as a form of
punishment. During Akbar regime, Badayunm records that on birth of
Prince Salim, the Emperor set out with all expeditions on Agra and in the
excess of his joy ordered all prisoners to be released. During the late
medieval period, the Christian Church had granted an asylum or sanctuary
to deserters and criminals. These canon Courts were traditionally forbidden
for the shed blood41.

Morris and Rothman, 1995 In its present form, the prison is a


relatively modern invention having been in existence for less than 300
years. It has its roots in the north east of the United States and in Western
Europe, has subsequently spread around the world, often in the wake of
colonial expansion. Prisons as places of detention, where people waited to
be tried, until a fine or debt was paid or until another court disposal was
implemented, existed for many centuries. But the use of prison as a direct
disposals of the court to any significant extent that could be dated to a
relatively recent period. It was not inevitable that prisons should have
developed into the model which we have now.

Varma, 197242An act forbidden by law and for performing which


the perpetrator is liable to punishment. Crimes has been divided by the
English Law in British age “felonies and misdemeanor”. The former was
included with the murder, robbery, arson, forgery etc. and were usually
punishable by confinement in a State prison or even death. The latter
includes a liable, an assault, the fraud and the breaches of statutory

41 Chowdhary, Raj Nitai. (2002) Indian Prison Laws and Corrections of Prisoners, New Delhi:
Publisher Deep & Deep Publication Private Limited
42 Verma, S. K., & Verma, A. (1989). PGI general wellbeing measure. Lucknow: Ankur
Psychological Agency.

43
obligations. These were the less serious offences in India, only punished by
fine or jail (Clinnared, 196743).

Pillai 1984) Pillai, K.S. (1984) Principles of Criminology,


Madras: TLL Criminalism may be the action of a person not yet criminal
and a crime is the deviation from a breach of a conduct norm. This
deviation or breach is punished by the society by means of its sanctions,
rules and regulations. But the punishments are not only the criterion to give
value. In India, the Religion, art, education and other social logical agencies
also reveal value for Indian even for the outsiders.

The history for the prison establishments in India and subsequent


reforms have been reviewed in detail by Mahaworker (2006).44 In his
work he found that the modern prison in India originated with the Minute
by TB Macaulay in 1835. The first phase of ancient civilization in India
when Dharma was Supreme the offenders were shown the maximum
tolerance, but that was gradually ousted by political party of the King in the
middle ages (Chowdhary, 2002:13). The ancient period speaks of four
methods of punishment (Danda) namely, by gentle admonition, by the
severe reproofs, by fines, and by corporal punishments and declared that
these punishments may be inflicted separately or together according to the
nature of the offence. In its present form the prisons are the relatively
modern inventions having been in existence for less than 300 years (Morris
and Rothman, 1995).

Increasing the number of courts cannot bring about the desired


differences as long as the current ‘adjournments culture’ continues
(Raghavan 2004). Tihar Central Jail, reported in 1997 that 10000 inmates
held in that institution endured serious health hazards, including

43 Clinnared, B. Marshall, and Richard Quinney, (1967) Criminal Behavior System, New York:
Holt, Rinehart and Winston
44 Mahaworker (2006) :PRISON MANAGMENT : PROBLEMS AND SOLUTIONS.

44
overcrowding, “appalling” sanitary facilities and a shortage of medical staff
(Human Rights Watch 2006). Though prisons are supposed to be leveling
institutions in which the variables that affect the conditions of confinement
are the criminal records of their inmates and their behavior in prison, other
factors play an important part in many countries (Neier et. al, 1991). The
enslavement of the other prisoners for the convict officers who effectively
run the prisons is particularly severe for new comers. They are teased,
harassed, abused and even tortured as part of the process of breaking them
in (Human Rights Watch 2001)

According to Reckless, 1940 “punishment is the redress that


common wealth takes against an offending member”. (Newman, 1978)45
although recognizing the difficulty of defining punishment presents thus:
Punishment is the pain or other unpleasant consequence what can result
from an offence against a rule and that is administered by others, who
represent legal authority, to the offender who broke the role. From purely
social point of view, and eliminating all considerations of sin, immorality or
degree of criminality, crime is nothing more or less the failure on the part of
the offenders for adjusting themselves to the social surroundings in which
he happens to find himself. The system cannot simultaneously be
maintained, regimented disciplined and a therapeutic atmosphere
characterized by a permissiveness and maximum regard for individual
needs as stated by (Galtung, 1968)46. The retributive theory is focused on
the fulfillment of moral justice. The good actions deserve to be crowned
with the good reward and a bad action meets its own fate.47 (Mackenzie,
1938). Says “it is only when an offender sees the punishment of his crime
to be natural or logical outcome of his act i.e. he is likely to be lead to any

45 Newman, G. (1978) The Punishment Response, New York : Lippincott


46 Galtung, John (1968) “The Social Functions of a Prison”, edited by Lawrence Hazelrigg (Ed.),
Prison within Society, New York.
47 Mackenzie, J.S. (1938) A Manual of Ethics, London: University Tutorial Press.s

45
real dependence: and it is only this recognition also that is likely to lead
others to any real abhorrence of crime, as distinct from mere fear of its
consequences.” It has been argued that revenge as a justification for
punishment is deeply in grained in human nature and experience
(Glenville, 1955).48 The reformative theory implies that the offender
should, while punished by detention, be put to educative and healthy
influences. Reformatory punishment may mean either that the offender is
reformed while being punished, or that he is reformed by punishment itself

Box 1.2: Brief of Prison System and Its Social Community

 The prison system isolates criminals from general society.


 The history of prison establishments in India and subsequent
reforms have been reviewed in detail by Mahaworker (2006)
 In its present form, the prison is a relatively modern invention
having been in existence for less than 300 years.
 It is only when an offender sees the punishment of his crime to be
natural or logical outcome of his act i.e. he is likely to be lead to
any real dependence: and it is only this recognition also that is
likely to lead others to any real abhorrence of crime.

1.13 TRENDS AND PRESENT SCENARIO OF PRISONS AS


SOCIAL

The prison community is a relational system in which a number of


persons, inmate and personnel, interact overtly and covertly with one
another according to specially prescribed rules of behavior. Within the
confines of the prison locale, inmates and staff participate jointly in many
of the common social relationships and activities found in "free"
communities outside prison walls. These relationships and activities include
the production of agricultural and industrial products, the utilization of
health services, the acquirement of academic, vocational, and industrial

48 Glenville, William (1955) The Proof Of Guilt, London: Stevens and Stevens Ltd..

46
education, participation in religious services, participation in recreational
activities and programs, and cooperation in many other communal
activities.

A scientific knowledge of the dynamic interrelations existing


between social groups within the prison community is indispensable to
the prison administrator, warden, deputy warden, heads of prison
departments, and other members of the prison staff. The orderly operation
of a prison or prison system depends primarily upon a sociological
understanding of the nature of the functional relations existing between the
formal personnel groups and the informal inmate groups within the prison
community. These functional relationships may be comprised under the
caption, "Group Dynamics." In other words, this paper deals specifically
with the dynamic relations existing between the informal social structure of
the prison community and the formal social structure. The data for this
paper are based upon investigations of prisons in five mid-western and
southern states, and previous studies of the prison community49.

Donald Clemmer USA 194050 In his book “The Prison


Community” on the part of trained observer he has attempted to study
prison life under a sociological aspect. This study also includes
considerable numbers of essays, letters and answers to questionnaire by the
inmates themselves. The idea that prison has its social organization, quite
independent of its official administration, is by no means new.

In his paper he described the prison community both as an actuality


and as an ideal. As it now exists there is constant hostility between guards
and prisoners; socialization means one thing for guards and another for
prisoners; formal education is usually inadequate and ineffective;
"training" in crime techniques, although informal, is very effective. When

49 Dr. Caldwell ‘Journal of Criminal Law and Criminology’ (1956) Volume 46 issue 5
50 Clemmer, Donald (1953) The Prison Community, New York: Holt Rine hart Winston.

47
used as a frame of reference for prison administration, it is clear that
convicts must learn to live in a community, perhaps at first by transfer to
such minimum security prisons as at Wallkill in New York. That
hostility between inmates and house officers can be cut down has been
demonstrated at Norfolk Colony. The building of a sense of social
responsibility is well illustrated by the English experiment at Lowdham
Grange. What has been proposed as a practical plan for penal
administration appeals to the authors as the logical implication of a
sociological analysis? A clear realization of the degenerating influence of
our present prison system should encourage more experiments aiming to
devise a community for offenders that will actually rehabilitate51.

Shift from public prison to private prison

David W. Miller52 In his writings David Miller talked about the


drain of public prison systems and the role of privatization during various
phases of economic condition of the State. As per his research in the late
1990s, the privatization movement of prisons continued to grow due to the
Federal Government contracting with private correctional companies. Prior
to this, only state public correctional systems had contracted with private
organizations to house inmates. Cheung (2002)53 writes, "Traditionally, the
federal government has been more cautious in experimenting with
privatization." However, in the year of 1997, the Federal Bureau of Prisons
(FBOP) contracted with Wackenhut for the transfer of its facility in Taft,
California to a private prison. Since this first contract was established with
the private prison industry, "federal interest in the privatization of prisons
has boomed, due in part to mandatory minimums and harsh drug sentencing

51 Norman S. Hayner and Ellis Ash (American Sociological Review, Vol. 5, No. 4, (Aug., 1940),
pp. 577-583):
52 The Drain of Public Prison Systems and the Role of Privatization: An Analysis of State
Correctional Systems David W. Miller:
53 Cheung, Amy (2002, updated 2004). "Prison Privatization and the Use of Incarceration." The
Sentencing Project. Retrieved December, 2009

48
laws, and consequent overcrowding in prisons. By the mid in 2001, federal
prisons were operating at 33% over capacity" (Cheung). On average,
Wackenhut and CCA provide a 5-15% cost savings when measures focus
on cost per inmate rates (Smith, 1993).54 However, in 2001, the Bureau of
Justice Assistance stated that "rather than the projected 20-per- cent
savings, the average saving from privatization was only 1 percent". Private
prisons for profit remained unconstitutional for nearly a decade until Public
Law 96-157, passed by Congress in 1979, implemented the Private
Sector/Prison Industry Enhancement Pro- gram (PIE-Program). The
legislation itself did not legalize the privately running prisons, but it did
open the gateways for states to determine, if private prisons could operate
in their borders or not (Herraiz, 2004).55

In the year of 1983, Texas was the first state to allow the private
organizations to run some of its correctional facilities, followed by Florida
and Tennessee as well. Currently the CCA, the oldest private corrections
company running 60 prisons and jails, housing close to 60,000 prisoners in
it, makes it the sixth largest operator of prisons of the world after the states
of Texas, California, New York, and Florida, and the Federal Bureau of
Prisons.

The trend in prison system and prison community in India has seen
dramatic change. After independence along with blueprint of
industrialization, reforms in prison system were also of prime concern. The
Government of Uttar Pradesh had appointed U.P. Jain Reform Committee
1946 to bring the prison administration of the state at par with some of the
advance countries. Subsequently began the experiment of the
recommendation of the committee in the Fatahgarh central prison. The

54 Smith, Phil (1993). "Private Prisons: Profits of Crime." Retrieved , December, 2009, from
http://mediafilter.org/MFF/Prison.html..
55 Herraiz, Domingo S. (2004). "Prison Industry Enhancement Certification Program." U.S.
Department of Justice: Office of Justice Programs: Bureau of Justice Assistance.

49
success of the Fatehgarh experiment led to the conversion of Lucknow
central prison into model prison in 1949. With an objective of improvement
of social life of prisoners various activities has also been organized by
various community which include three Training of Trainer workshops to
be undertaken in collaboration with each RICA in Chandigarh, Pune and
Kolkata for a selection of maximum 25 participants. These workshops will
be based on a pilot workshop developed and delivered in Vellore in January
2013 and will cover international human rights standards in prison,
principles of good prison management, security, pre-trial detention, health
care, vulnerable groups and reintegration and how these issues can be
properly addressed within Indian prisons. Such activities expected results
like an on-going resource of competent trainers to be established within the
Indian Prison and Corrections Service through the delivery of training of
trainer programmes, improved knowledge and capacity of local partners
and stakeholders to support the development of a professional prison
service and exposure of professionals to international good practice for
prison management and administration etc.56

1.14 REFORMS IN PRISON SYSTEM: A FUTURISTIC


VIEWPOINT

The history of prison establishments in India and subsequent reforms


have been reviewed in detail by Mahaworker (2006). A brief summary of
the same is presented below.

The modern prison in India originated with the Minute by TB


Macaulay in 1835. A committee, named as the Prison Discipline Committee
had been appointed what submitted a report on 1838. The committee
recommended increased rigorousness of treatment while rejecting all
humanitarian needs and reforms for the prisoners. Following the

56 Based on Workshop by Panel Reform International

50
recommendations of the Macaulay Committee between1836-1838, Central
Prisons were constructed from 1846.

The contemporary of the Prison administration in India, thus became


a legacy of British rule. It is based on the notion that the best criminal code
can be of little use to a community unless there is good machinery for the
infliction of punishments. In 1864, the Second Commission of Inquiry into
Jail Management and Discipline made similar recommendations as the
1836 Committee. In addition, this Commission made some specific
suggestions regarding accommodation for prisoners, improvement in diet,
clothing, bedding and medical care. In the year of 1877, a Conference of
Experts met for purpose of inquires into prison administration. The
conference proposed the enactment of a prison law and a draft bill was
prepared. In the year of 1888, the Fourth Jail Commission had been
appointed. Based on its recommendations, a consolidated prison bill had
been formulated. Provisions regarding the jail offences and punishment
were specially examined by a conference of experts on Jail Management. In
1894, the draft bill became law with the assent of the Governor General of
India.

The prison establishments in India and subsequent reforms have


been reviewed in detail by Mahaworker (2006). The modern prison in
India had been initiated with the Minute by TB Macaulay in 1835. A
committee named as the Prison Discipline Committee (PDC), had been
appointed, it submitted its report on 1838. The committee recommended
increased rigorousness of treatment while rejecting all humanitarian needs
and reforms for the prisoners. Following the recommendations of the
Macaulay Committee, within the period of 1836-1838, Central Prisons
were constructed and had been initiated in 1846.

51
Before the 1700’s, governments seldom imprisoned criminals for
punishment. Instead of it the people were imprisoned while awaiting trial or
punishment. Common punishments at that period have been included
branding, imposing fines, whipping and capital punishment (execution).
The authorities punished most offenders in public in order to discourage
other people from breaking the law. Some criminals were punished by
being made to row the oars on ships called galleys. During the 1700’s,
many people including British Judge Sir William Blackstone criticized use
of executions and other harsh punishments. In 1787, a group of influential
Philadelphians, mostly Quakers, formed the Philadelphia Society for
Alleviating the Miseries of Public Prisons (now the Pennsylvania Prison
Society). During the eighteenth century, New York prison officials
developed two major systems of prison organization—the Auburn System
and the Elmira System The contemporary prison administration in India
is a legacy of the British Rule. Lord Macaulay, while presenting a note to
the Legislative Council in India on December 21, 1835, for the firsttime,
pointed out the terrible inhumane conditions prevalent in Indian prisons and
he termed it as a shocking to humanity. Later A Conference of Experts was
held in 1877 to inquire into the prison administration in detail. The Fourth
Jail Commission was appointed by Lord Dufferin in 1888 to inquire into
the prison administration. The process of review of prison problems in the
country, continued even after the enactment of Prisons Act, 1894. The first
ever comprehensive study was launched on this subject with the
appointment of All India Jail Committee (1919-1920). The constitutional
changes brought about by the Government of India Act of 1935, which
resulted in the transfer of the subject of prisons in the control of
provincial governments, further reduced the possibilities of uniform
implementation of the recommendations of the Indian Jails Committee
1919-1920 in the country. The year 1952 witnessed a significant break-

52
through in national coordination on correctional work as in that year
the Eighth Conference of the Inspectors General of Prisons was held after a
lapse of 17 years. In the year of 1957, Manual Committee prepared a Model
for the Prison Manual. In 1972, the Ministry of Home Affairs, Government
of India, appointed a Working Group on Prisons which presented its report
in 1973. This Working Group brought out in its report the need for a
National Policy on Prisons. An affair during 1977-79 was indicative
of a growing awareness for providing a thrust towards the development
of prisons in keeping with certain minimum norms. This trend took a
definite shape when the Seventh Finance Commission. In pursuance to the
directions given by the Hon’ble Supreme Court in a case of Ramamurthy
Vs. State of Karnataka, 1996, the Government of India has constituted All
India Model Prison Manual Committee in November, 2000 under the
chairmanship of Director General of BPR&D to prepare a Model Prison
Manual for the Superintendence and Management of Prisons in India in
order to maintain uniformity in the working of prisons throughout the
country. In addition to it, BPR&D has also placed this draft policy paper in
the meeting of Advisory Committee on Prison Reforms held on 3rd
November, 2006 for discussion to make this document more viable.

Future of Indian Jail lies in the hand of economic reformers of India.


Most Jails in India offer skill development, work, entrepreneurship and
empowerment programmes to the inmates. Most of these initiatives are
targeted at creating small manufacturing or agri-based programs with
majority of produce for self consumption. Efforts are being made by
Jails to create scalable and sustainable business that can build long
term economic benefits to jail inmates and overall prison development.
Various rehabilitation and reform studies and research is done on changing
the behavior of the inmates and trying to reduce re-offences.

53
Tihar Jail has been considered as a pioneer in the economic
rehabilitation program in India. It was around 12000 inmates. Considering
the immense pressure on the exchequer to develop infrastructure, and well-
being of the prisoners, there is a need to create sustainable organizational
forms that can run cost-effective and efficient prison rehabilitation program.

In line with Institute of Correctional Administration, Chandigarh’s


report on National Policy on Prison in 2006, to make a prison
administration run on economic criterion of making itself sustainable,
efficient, cost-effective and dynamic, appropriate state-level apparatus is
required. For the same organization of State Jail Industry board has been
proposed. To ensure the sustained intervention, there is an emerging need
for the states to uniformly develop and co-ordinate jail industries through
the formation of a Jail Industry board (JIB).

Box 1.3: Comparison between various economic


rehabilitation models pursued

Co-operative
Criteria PPP NGO
Society
Profitability High Moderate Non Profit
Risk High High Low
Stakeholder Private
Inmates NGO
interest company
Scalability High Limited Limited
Legal
Moderate High Low
Challenges
Incorporation
Low Moderate Low
Cost
Benefit to
High High High
Inmates

54
Prison has several purposes. Amongst these are separation from
society and confinement for the safety of society, punishment for crime,
correction and rehabilitation to the community. Prisons are not, primarily,
concerned with the health of the prison population and, indeed, ‘The need
for security and discipline can cut across the perception of individuals
(prisoners) as patients’ (Her Majesty’s Inspector of Prisons (HMIP), 1996,
p. 1). The prison service in the UK has traditionally established its own
health care facilities for prisoners who become patients, with its own
doctors and nurses employed by the prison service (HMIP, 1996). This has
served to reinforce the image of prisoners who are patients as being
separate, even in terms of health care, from the general population and it
has also led to isolation of the professionals: doctors and nurses, working in
the prison service. Consequently, they have been accorded as a lower status
by colleagues.

Box 1.4: Prison Reforms- A Summary

A. Prisons are a State subject under List-II of the Seventh Schedule


to the Constitution of India. The management and
administration of Prisons falls exclusively in the domain of the
State Governments, and is governed by the Prisons Act, 1894
and the Prison Manuals of the respective State Governments.
Thus, States have the primary role, responsibility and authority
to change the current prison laws, rules and regulations.

B. The existing statutes which have a bearing on regulation and


management of prisons in the country are:

1. The Indian Penal Code, 1860.

2. The Prisons Act, 1894.

3. The Prisoners Act, 1900.

55
4. The Identification of Prisoners Act, 1920.

5. Constitution of India, 1950

6. The Transfer of Prisoners Act, 1950.

7. The Representation of Peoples' Act, 1951.

8. The Prisoners (Attendance in Courts) Act, 1955.

9. The Probation of Offenders Act, 1958.

10. The Code of Criminal Procedure, 1973.

11. The Mental Health Act, 1987.

12. The Juvenile Justice (Care & Protection) Act, 2000.

13. The Repatriation of Prisoners Act, 2003.

14. Model Prison Manual (2003).

C. Various Committees, Commissions and Groups have been


constituted by the State Governments as well as the
Government of India (GoI), from time to time, such as the All
India Prison Reforms Committee (1980) under the
Chairmanship of Justice A.N. Mulla (Retd.), R.K. Kapoor
Committee (1986) and Justice Krishna Iyer Committee (1987)
to study and make suggestions for improving the prison
conditions and administration, inter alia, with a view to
making them more conducive to the reformation and
rehabilitation of prisoners. These committees made a number
of recommendations to improve the conditions of prisons,
prisoners and prison personnel all over the country. In its
judgments on various aspects of prison administration, the
Supreme Court of India has laid down three broad principles

56
regarding imprisonment and custody. Firstly, a person in
prison does not become a non-person; secondly, a person in
prison is entitled to all human rights within the limitations of
imprisonment; and, lastly there is no justification for
aggravating the suffering already inherent in the process of
incarceration.

D. Central Assistance to State : Based on the recommendations


of various Committees, Central assistance was provided to the
States on a matching contribution basis to improve security in
prisons, repair and renovation of old prisons, medical
facilities, development of borstal schools, facilities to women
offenders, vocational training, modernization of prison
industries, training to prison personnel, and for the creation of
high security enclosure. The total assistance provided to the
State Governments from the year 1987 to 2002, was Rs.
125.24 crore. The Eleventh Finance Commission also granted
an amount of Rs 10 crore to the Government of Arunachal
Pradesh for the construction of jails.

1.15 PRISONS IN INDIA – A BRIEF SUMMARY

The rate of imprisonment in our country was very low57, i.e. only 25
prisoners per one lakh of population, as we compare with Australia (981
prisoners), England (125 prisoners), USA (616 prisoners) and Russia (690
prisoners) per one lakh population. A large chunk of prison population is
dominated by first offenders (around 90%) The rate of offenders and
recidivists in prison population of Indian jails is (9:1) but in the United
Kingdom, it is 12:1, which is quite revealing and alarming for world.

57 According to the United Nation’s Global Report on Crime and Justice in 1999

57
As of 2007, the prison population was 3,76,396, as against an
official capacity of 277,304, (representing an occupancy rate of 135.7%)
distributed across 1276 establishments throughout the country. The prison
population has been steadily increasing during the last decade in our
country. A majority of the prison population is male (nearly 96%) and
approximately two-thirds are pre-trial detainees (undertrials).

***

58
Chapter - 2

HISTORICAL
BACKGROUND
CHAPTER -2
HISTORICAL BACKGROUND

2.1 INTRODUCTION

As we know the prison is defined as such a place in which persons


are kept in custody pending trial or in which they are confined as
punishment after conviction. The word prison means different things for the
different people. To the law be stable it is considered as a place where the
criminals end up. To the criminal it could be an obscure hazard or an
unavoidable indignity. For the social inadequate it is a shelter. To some
isolated individuals it may be the only place where they can find some
semblance of championship. It is the place of work for Prison officers. For
the psychologist, it is a place of career in studying behaviour of the
prisoners. But for thousands of the people, an experience which slows up
time, which crows them together, sets them apart and changes the
conditions of their lives.

2.2 HISTORY OF PRISON SYSTEM

Prison system in India, is just one of a number of sanctions available


to the courts to deal with those who commit criminal offences.
Imprisonment today has become the harshest sanction available but this has
not always been the case.

During early days punishment for criminal behavior tended to be


public events which were designed to shame the person and deter others;
these included the ducking stools, the pillories, whipping, branding and the
stocks. At that time, the sentences for many other offences was death.
Prison in India has tended to be a place where people were held before their

59
trial or while awaiting punishments. It was very rarely being used as a
punishment in its own right. In history of Indian prison, then Men and
women, boys and girls, debtors and murderers were all held together in
local prisons. This Evidence suggests that “prisons in India, at ancient
period were badly maintained and often controlled by negligent prison
warders”. Many people had died of diseases like gaol fever, which was a
form of typhus1. The most important innovation of this period was: to build
the prototype house of correction, the London Bridewell2. Houses of
correction were originally the part of the machinery of the Poor Law, was
intended to instill habits of industry through prison labour. From the
prisoners mostly held in them, were petty offenders, vagrants and the
disorderly local poor. In India, by the end of the 17th century they were
absorbed into the prison system under the control of the local Justices of the
Peace.

Although the 18 th century has been characterized as the era of the


'Bloody Code' there was growing opposition to the death penalty for all but
the most serious crimes. Such punishments were the counter-productive, as
jurors were refusing to find thieves guilty of offences which would lead to
their execution. By the mid of 18th century imprisonment, with hard labor,
was beginning to been seen as a suitable sanction for petty offenders.
Transportation was a much-used method for disposing of convicted people
for the prison in India. Convicts were shipped to the British colonies such
as America (until the end of the Independence of America in 1776),
Australia, and Van Diemen’s Land. Transportation was curtailed at the end
of the 18th century. The two prominent alternatives were hard labor and for
those who unable to do this the house of correction.

1 Causes and prevention of violence in prisons. In Sean O’Toole & Simon Eyland (Eds.),
Corrections criminology (pp. 101-108)
2 Hinkle, William G. A History of Bridewell Prison, 1553-1700. Lampeter, 2006

60
Prison hulks were shipped what were anchored in the Thames, and at
Portsmouth and Plymouth. Those sent to them, were employed there in hard
labour during the day and then loaded, onto the ship at night. The appalling
conditions on the hulks especially the lacks of control and poor physical
conditions, eventually led it to the end of this practice. But the use of the
prison hulks in India did much to persuade public opinion that
incarceration, with hard labour, was a viable penalty for crime. In the year
of 1777, John Howard (namesake of the Howard League) condemned the
prison system as disorganized, barbaric and filthy. He called for wide-
ranging reforms including the installation of the paid staff, outside
inspection, a proper diet and other necessities for prisoners. Jeremy
Bentham, and other penal reformers at that time, believed that the prisoner
should suffer a many of regimes, but that should not be detrimental to the
prisoner's health. Penal reformers had also ensured there should be the
separation of men and women and that sanitation to be improved as well. In
the year of 1791 Bentham had designed the 'panopticon'. This prison design
allowed a centrally placed observer to survey all the inmates in the prison,
as prison wings radiated out from this central position. In the year of 1799
the Penitentiary Act specified that prisons should be built for one inmate per
cell and operates on a silent system with continuous labor.

The first half of the 19th century had represented a watershed in the
history of the state punishment. The capital punishment is now regarded as
an inappropriate sanction for many crimes in India. The shaming sanctions
such as the stocks what were regarded as outdated. By the mid of the 19th
century, imprisonment had replaced capital punishment for most serious
offences - except for that of murder. Ideas related to the penal reform were
becoming an increasingly popular thanks to the work of a few energetic
reformers. Many of these ideas and thoughts were related to the
rehabilitation for the offenders. Religious groups like the Quakers and the

61
Evangelicals were highly influential in promoting such ideas of reformation
through personal redemption. The 19th century saw the initiation of the state
prison in India. In the year of 1816, the first national penitentiary was
completed at Millbank in London. It held around 860 prisoners in, kept in
separate cells too, although association with other prisoners was allowed
during the day time. Work in prison was mainly centered around simple
tasks such as picking 'coir' (tarred rope) and weaving. In the year of 1842
Pentonville prison was built using the panopticon design; this prison is still
used today. Pentonville was originally designed to hold around 520
prisoners, each held in a cell measuring of 13 feet long, 7 feet wide and 9
feet high. Pentonville was operating the separate system, which was
basically solitary confinement. In the next 6 years, 54 new prisons were
built using the same template. The prisons were brought under the control
of the Prison Commission in 1877. For the first time all even local prisons
also were controlled centrally. At this time in India, the prisons were seen
primarily as the means to deter the offending and reoffending. This was the
movement away from the reforming ideals of the past in India. The Prison
Act in 1898 reasserted for the reformation for the main problem of prison
regimes. This Act can be seen to set the penal-welfare context which
underlies today’s prison policy. It led to a dilution of the separate system,
the abolition of hard labor, and established the ideas that the prison labors
should be more productive, not least for the prisoners, who should be able
to earn their livelihood on release.

The developments of the prison systems are continued today. At the


end of the 19th century there was recognition that the young people in India
should have separate prison establishments – thus the borstal system was
introduced for the Prevention of Crime Act 1908. The English Prison and
Borstal Systems: An Account of the Prison and Borstal by Borstal training
has been involved in a regime that was based on the hard physical work,

62
technical and educational instruction and strong moral atmospheres. A
young person in borstal: would work through the series of grades, based on
privileges, until release. In the year of 1933, the first open prison was built
at New Hall Camp near Wakefield. The theory behind the open prison is
summed up in the words of one penal reformer, Sir Alex Paterson: "You
cannot train a man for freedom under conditions of captivity". The Criminal
Justice Acts in 1940 was abolished penal servitude, hard labour and
flogging. This acts also presented the comprehensive systems for the
punishment and treatment of offenders. Prison was still at the centre of the
govt. system, but the institutions took many different forms such as
detention centers and borstal institutions including as remand centers. In
April 1993, the Prison Services became an Agency of the Indian
government. This new status allows us for a greater autonomy in
operational matters, while the government retains the overall policy
direction for the prison system. The 1990s have also been seen that the
introduction of prisons and prison system what are designed for, financed,
built and run by private companies. Supporters of privatization argue that it
will lead to cheaper, more innovative prisons, while organizations like the
Howard League argue that private prisons are flawed both in principle and
in practice. In India, the supremacy of imprisonments is as a way of dealing
with offending behavior that shows no signs of abating. Further new prisons
in India are being planned. These are like all new prisons would be the part
of the PFI programmes and managed by the private sector. There are around
12 privately managed prisons in India; however two prisons which began
life managed by the private sector have been brought back into the public
management.

Homel, R. & Thomson3 : There are no over-arching theories of


prison violence, but there are several influential schools of thought. In the

3 Causes and prevention of violence in prisons in Sean O’Toole & Simon Eyland (Eds.), the
Corrections criminology (pp. 101-108). Sydney:

63
prison sociology, two well-established but contrasting perspectives are the
deprivation and importation models. The deprivation model holds, in brief,
that the prison environment and loss of freedom causes a deep
psychological trauma so that psychological self-preservation prisoners
create a deviant prison subculture that promotes violence (Farrington &
Nuttal, 1980; Sykes, 1958; Wortley, 2002). The importation model (Cao,
Zhao & Vandine, 1997; Harer & Steffensmeier, 1996) emphasizes what
prisoners should bring into the institution: their histories, personal attributes
and social networks, including links to criminal groups. The empirical
literature supports both these models but perhaps the most pronounced
trend in recent literature is a growing recognition of the importance of very
specific features of the social and physical environments of the prison and
of the “minutiae of the average prison day” (Bottoms, 1999: 212)4.

Even in studies that are primarily focused on other factors, the


details of how a prison is organized in time and space, how individuals
interact with and help shape a dynamic environment for the prisoners, and
the role of specific situational factors in precipitating or regulating violence
emerge as crucial. Thus we should add two newer but influential theoretical
positions as the transactional model (Bottoms, 1999) and the situational
model (Wortley, 2002)5

These, as it is suggested, are complementary not competing


perspectives, that may help to make sense of what can be a bewildering
variety of empirical. The theoretical models we have reviewed each by their
own way, underline the critical importance of management practices for the
control of violence. This emphasis is in accordance with the empirical
literature. There is increasing evidence that poor prison management and
control is the most significant factors in contributing to and (consistent with

4 Bottoms, Anthony E., William Hay, and J. Richard Sparks (1995). “Situational and Social
Approaches to the Prevention of Disorder in Long-Term Prisons.”
5 Wortley, R. (1996). “Guilt, Shame and Situational Crime Prevention.”

64
Wortley) even promoting the both individual and collective prison violence.
An important study made by Reisig (1998) referred in American prison:
imagining a different future by francis T.cullenc contrasted the control,
responsibility and consensual models of prison management. According to
the control model, rules should guide almost all areas of prisoners’ lives and
these rules should be rigorously enforced to control prison behaviour.
According to the responsibility model, prisoners should be provided with a
high degree of responsibility over the order of the prison and its
management should exercise the minimum required control over such order.
The consensual model is the integration of the control and responsibility
models. The findings indicated that in prisons adopting the findings.

Box 2.1: Brief of History of Prison System

 During early days punishment for criminal behavior tended to be


public events which were designed to shame the person and deter
others.

 During 18 th century imprisonment, with hard labour, was


beginning to been seen as a suitable sanction for petty offenders

 The first half of the 19th century represented a watershed in the


history of state punishment. Capital punishment was now
regarded as an inappropriate sanction for many crimes.

 The 19th century saw the birth of the state prison with
introduction of many models

2.3 EVOLUTION OF PRISON SYSTEM IN INDIA

The evolution of prison system in India is very dramatic. One may


say that Indian prison system is one of the very complex systems of the
world to understand. In general three phases may be distinguished in the
history of prisons. During the first, which lasted until the middle of the

65
16th century, penal institutions were chiefly dungeons of detention rooms
in secure parts of castles or city, in which prisoners awaiting trial or
execution of sentences were kept. The second phase was one of
experimentation with imprisonment a form of punishment for certain types
of offenders, mostly, Juveniles. The third phase was the universal
adaptation of imprisonment as a substitute for all of the capital
punishments.

Prisons in the shape of dungeons, was existed from the time of


immemorial in all the countries of the world. In his book, “The Future of
imprisonment’ NORVAL MORRIS.6 Refers to punitive imprisonment used
extensively in Rome, Egypt, China, India, Assyria and Babylon and
firmly established in Renaissance Europe. But prison sentence, as a specific
punishment, is relatively recent origin. The prison as we know, it came into
the existence largely as an interim house of detention of an offender
pending trial and punishment.

2.3.1 Ancient Indian Prison System

2.3.1.1 Concept of Dharma and Danda

In India, the early prisons were only places of detention where


an offender was detained until trial and judgment and the execution of
the latter. The first phase of ancient civilization in India when Dharma was
Supreme, the offender was shown maximum tolerance, but that was
gradually ousted by political party of the King in the middle ages
(Chowdhary, 2002:13). The ancient period speaks of four methods of
punishment (Danda) namely, by gentle admonition, by severe reproof, by
fine, and by corporal punishments and declared that these punishments may
be inflicted separately or together according to the nature of the offence.
The structure of the society in ancient India was founded on the

6 NORVAL MORRIS.* Chicago: The University of Chicago Press 1974..

66
principles enunciated by Manu and explained by Yagnavalkya,
Kautilya and others. Among various types of corporal punishments –
branding, hanging, mutilation and death, the imprisonment was the most
mild kind of penalty known prominently in ancient Indian penology. The
main aim of imprisonment was to keep away the wrong doers, so that they
might not defile the members of social order. These prisons’ conditions
were totally dark dens, cool and damp, unlighted. There was not proper
arrangement for the sanitation and no means of facility for human dwelling.
Fine, imprisonment, banishment, mutilation and death sentence were the
punishments in vogue. In prison, fine was the most common and
condemned person who could not pay his bill to bondage until it was paid
by his labour in the prison. At the ancient time our society were divided into
four categories Brahmin, Kshatriya, Vaishya and Sudra. The fines for the
murder of a Brahmin were 1000 cows, for killing a Kshatriya 500 cows, for
a Vaishya 100 cows and for a Sudra or women of any caste. 7 Though the
Indian law gives a little description of jail life, even then historical
account gave a clear picture after the analysis of the available data. A
few Smiriti writers had supplied some information concerning with Prison
in India. Ever since time immemorial, India always had a very well defined
prison system. Ages back Kautilya's Arthshastra held:
vibhaktistripurushasthaanam apasaraatah sugupsakakshyam
bandhanaagaaram kuarayet, which means that a jail has to be constructed in
the capital in order to provide separate accommodation for men and women
and the same must be well guarded. Segregation of prisoners on the basis of
sex thus was always kept in mind even at that time, which reflects the
systematic and well deliberated upon treatment of criminal at the hands of
State, Kautilyn’s Arthshastra made a reference to the employment of
prisoners observing, oornaawalkkaarpaasatoolshanakshaumaani
chdandapratikaarineebhih kartayet, meaning thereby that the Superintendent

7 , I. J. Singh,’Indian prison’, p.19

67
of Weaving shall employ besides others, women who are compelled to work
in default of payment of fines, for cutting wool, fiber, hemp etc. Another
similar reference in Kautilya's Arthshastra is, bahuhalaparikrishtaayaam
swabhoomau daaskarmakardandapratikartribhirvapayet, which means that
the Superintendent of Agriculture shall employ slaves, labourers and
prisoners for agriculture purposes like sowing of seeds on Slate land,
Kautilya in his Arthashastra contemplated that rulers in ancient India should
frequently use of fortresses to lodge their prisoners.

In order to prevent the malaise of monotony and isolation in jail life,


Kautilya advocated construction of prisons by the roadside as far as
possible. At the same time, spirituality being the dominant rule, in ancient
India, great emphasis was laid on modeling the prisons in a manner so as to
provide opportunity for atonement and remonstrance to the prisoners. In
this regard solitary confinement was strongly advocated for, so as to afford
the convict an opportunity introspection. Kautilya also advocated for
release of some prisoners every fifth day, who would pay some money as
floe or accept some other form of punishment or promise to work for social
upliftment.

The object of punishment during the Hindu period in India was


mainly the criminals. Besides imprisonment, which was the mildest form
recognized modes of punishment during that era were death sentence,
mutilation whipping, flogging and branding.

Ancient Hindu Penology formulated in the ancient scriptures,


advocated for putting the evil doer in prison also to segregate him from rest
of the society. On certain auspicious days, like festivals or birthdays of the
King, old and infirm prisoners, orphans, mid prisoners promising to engage
themselves in social upliftment were released premature. At the same time,
Kautilya prescribed death sentence for a prisoner who escaped from prison
by jail breaking. Severe onus was put on the jail authorities to ensure strict

68
discipline inside the jail Kautilya elaborated the duties of a jailor and
observed that the jailor must be all time vigilant and must ensure no act in
jail going undetected.

In the early Asoka period, jails remained unreformed. However,


Asoka following Buddhism, jail reforms were witnessed in his rule.

Yajnavalkya8 had narrated that the person who was instrumental for
the escape out of imprisonment, the prisoner had undergone capital
punishment. Vishnu suggested the penalty of imprisonment to a person who
hurt the eyes of a man. Kautilya has described the place of prison as the
location as well as the occasions when the prisoners can be released. The
officers of the jail were known as Bhandanagaradhyaksa and Karka. The
former was a superintendent and the latter was one of his assistants. The jail
department was under the amenability of Sannidhata. There are references
to prisoners in Ashokan inscriptions especially the fifth Rock Edict.
Kautilya has further described the duties of the jailors, who always keep
eyes on the movements of the prisoners and the proper functioning of the
prisoners in the prisons.

Prof. Ramachandra Dikhitar9 has suggested that Ashoka was familiar


with the Arthashastra, for Ashoka speaks of as much as twenty five jail
deliveries effected by him in the course of 26 years since his appointment
to the throne. In the post Ashokan age the jatakas gives a picture of the
prisoners being released at the time of war. From Harsha Charitha, it
appears that the condition of the prisoners was far from satisfactory.
According to Hiuen–Tsang prisoners generally received harsh treatment.
At the time of Royal coronation prisoners were released. From the above
discussion it is quite evident that regular prison system as such was not
in existence in ancient India an imprisonment as a mode of punishment was
not a regular feature when compared to the modern system in India.

8 Yajnavalkya of Videha was a sage and philosopher of Vedic India


9 Dikshitar, V. R. Ramachandra (1932 “Mauryan Polity”,

69
2.3.2 Mediaeval India

The legal system in the Mediaeval India resembled that of


Ancient India and the contemporary Muslim rulers seldom, if at all,
attempted to tamper with the day to day administration of Justice.
During the Mughal age sources of law and its character was essentially
Quranic and remained same. Crimes were divided into three groups,
namely,

a) Offences against God,

b) Offences against State,

c) Offences against private persons.

Punishment for these offences were put in four classes, they were,

1) Hadd
2) tazir
3) Quisas
4) Tasir.

Imprisonment was not resorted as a form of punishments in the case


of ordinary criminals. It was used mostly as the means of detention only at
the ancient time. There were many fortress situated in different part of our
country, in which the criminals were detained pending trail and judgment.10
The only redeeming feature of the prisoners was that: the orders for their
release were issued on special occasions. Some rooms in forts popularly
known as the Bhandhi-khanas or Adab–Khanas were reserved for prisoners,
and culprits who had committed serious crimes were sent to such from
different places. During the Mughal period in India the punishment was
given mostly as a retribution or deterrence. As in ancient India, during this
period also, imprisonment as a method of punishment was not a normal

10 JadunathSarkar, ‘Mughal Administration’, Quoted in V. Bhusan, Prison Administration In


India

70
feature of the legal system. Punishments were meted out side the prison and
very few persons were sent to prison. The principal forms of punishment
were capital punishment, mutilation, flogging, banishment fines and
imprisonment.11 The chief feature of imprisonment of the period was that
no period was fixed for it. The Quazi and the magistrate had a right to send
any one to prison for the offence of crime for which the punishment could
be awarded and the accused had to show signs of repentance to secure
freedom12: There were three noble prisons or castles at Gwalior,
Ranthambore and Rohtas. Fort of Ranthambore was used as a temporary
prison for criminals condemned to death punishment. After two months of
their arrival, they would be pushed down the hill to their death. Rohtas
prison was used to keep those nobles who were condemned to perpetual
imprisonment from where very few returned home.13

The historical accounts recorded by several travellers during the


period clearly show the appalling conditions existing in the prisons of the
Mughal period Monserrate reported that the ordinary criminals were kept
under guard in irons, but not in prison. Princes sentenced to imprisonment
were sent to the jail at Gwalior where they rot away in chains and filth14:
Nicolan Manucci records as, "when the prisoners were taken to the prison,
they were usually loaded with iron fetters on their feet and shackles on their
necks". ibid For temporary confinement, there were Chabutra-l-kotwali,
police lockups. There are frequent references in the news letters of
Aurangzeb about the confinement of thieves, robbers and even guilty
officers in these lockups.15 According to Muslim law, the Qazis or
magistrates were expected to visit prisons and inquire into the conditions
there and release those who showed sign of repentance. Usually, they

11 Dr.Satya Prakash Sangar, Administration of Justice in Mughal India,


12 R.N.Datir, Prison as a social system Bombay: Popular Prakashan, 1978 at 42-43
13 Baharistan -I- Ghaybi I, pp 89-91 cited by S.P.Sangar
14 R.N.Datir, Prison as a social system Bombay: Popular Prakashan, 1978 at 42-43
15 ibid

71
neglected their duty. The only redeeming feature for the prisoners was that
orders for their release were issued on special occasions. Those occasions
were birth of a crown prince, recovery of the Emperor or a royal prince
from long illness, or visit of the Emperor to some of the prison fortresses
during royal tours. On the birth of prince Salim, Akbar ordered that all the
prisoners in the imperial dominions who were shut up in the fortresses on
'account of great accounts' were to be released.16 Soon after his accession,
Jahangir ordered the release of all those persons who had been imprisoned
for a long time in forts.17 In 1618, he inspected the condition of the
prisoners in that Fort. With the exception of those convicted for murder or
other dangerouscrimes, he freed them all and to each one in accordance
with his circumstances gave them expenses and dress of honour.18 There
were standing instructions during Shahajahan's reign that whenever the
Emperor passed by a fort, the cases of the prisoners there should be brought
to his notice.19 In the beginning of his reign he visited the Fort of Gwalior,
and gave orders for the release of all prisoners excepting those charged with
very serious crimes. In the eleventh year of his reign, he again happened to
pass by the fort. Ibid He inspected the cases of the prisoners there and found
only 11 with sentences of long duration and set them free. On the occasion
of the celebration of recovery from illness of the favourite princess Begam
Sahib, Shah Jahan released prisoners in 1638. In the 46th year of his reign
in 1703, Aurangzeb ordered Mohammad Mas'ud that all the prisoners
confined should be set free with the exception of a Faqir.20 Thus during the
Mughal period prisoners were released on special occasions.

During the Maratha period it was also considered, the imprisonments


as the form of punishment was not very common. Punishments like

16 Jaipur Akhbarat, 49th year, see S.P.Sangar


17 Akbar Nama, Bev.ll, pp 504-05; Farishsta, II, P 350: Badawni, Test II at 120-24,
18 Ibid
19 Ibid
20 Ibid

72
Mutilation, fine, death were common. The form of punishment, as during
the ancient and Mughal period, continued in Maratha period also. The main
features of the prison system in India before the British age and British
period may be summarized as below:

a) There were not any prisons in Modern sense at that time.

b) There was not any description of the internal administration of


prisons.

c) No separate prison services were present and courts were not


feeding centers for prisons.

d) There were no any rules for maintenance of the prisons.

2.3.3 Modern India

The prison system as it operates these days in our country is a legacy


of the British rule. It was an ingenious creation of the colonial rulers over
our home-grown penal system with the prime motive of making
imprisonment “a terror to wrong doers”. Nevertheless it was a great leap in
the history of our penal reforms as it facilitated the abolition of our old
fashioned prison system of barbarous punishments and substitution of
imprisonments as the chief form of punishment for crimes in our country. In
1784 the British Parliament empowered the East India Company to rule
India and since then some effective attempts were made for introducing the
reforms in the administration of Law and Justice. At that time there were
only 143 civil jails, 75 criminal jails and 68 mixed jails in our country. In
fact these jails were an extension Mughal rule which were managed by the
personnel of the East India Company in their efforts to maintain peace and
establish their trade.

2.3.3.1 Prison System in British Era

The British colonial rule in India marked the beginning of major


penal reforms in India. The British authorities strenuously tried to improve

73
the conditions of Indian prisons and prisoners. Radical changes were
introduced in the then existing prison system keeping in system keeping in
view the sentiments of the local people. At the advent of British, initially
some changes were introduced in the overall legal system. The Regulating
Act of 1773 established the Supreme Court at Calcutta to exercise all civil
and criminal jurisdictions to come in tune with the English jurisprudence.
The Indian Penal Code and the Criminal Procedure Code were brought into
force in the years 1859 and 1860 respectively, laying down explicit
definitions of different crimes coupled with the specific punishments
prescribed and also the specific procedures to be adopted by the criminal
justice dispensation machinery.

Thus, in the year I 860, imprisonment came to be applied uniformly


across India as a recognized mode of punishment. Jail, thus came to be
recognized as the smallest unit of prison system, where the criminals
condemned by the courts would be kept over a period. Prior to recognition
of imprisonment as a mode of punishment, the system of punishment hardly
entailed any financial burden on the State. As such, during initial period,
Directors of East India Company were quite reluctant to spend money on
upkeep of jails. Consequently, living conditions in jails were pathetic,
though the jails were built on British model.

The Prison Enquiry Committee, with Lord Macaulay as its member,


appointed by the Government of India in the year 1836 submitted its report
in the year 1838, thereby criticizing the corruption and the laxity amongst
the subordinate establishment. Steps were also recommended to eradicate
corruption among the prison staff. It mainly recommended that the Central
Jails be built to accommodate not more than 1000 prisoners each; that
sufficient buildings be provided in each jail to house the prisoners
comfortably; and that an Inspector General, Prisons be appointed in each
province. It also recommended abolition of the practice of prisoners being

74
made to work on road. First Central Prison was built in Agra in the year
1846.

Thence, the inspector General of Prisons for the first time came to be
appointed in the year 1855, who was the Chief Administrator of Prisons in
India, with his main function to maintain discipline amongst prisoners and
prison authorities. As a consequence of this appointment, the jailor and
other petty officials of prisons could no longer abuse their power and
authority.

The second Jail Reforms Committee in the year 1864 expressed


concern over the death of several prisoners due to illness and disease on
account of insanitary conditions of Indian prisons. The committee found as
many as 46, 309 deaths in preceding .10 years inside the prisons and opined
that the high mortality might have been due to overcrowding, poor
ventilation, had drainage, insufficient clothing, and inefficient medical
facilities, it emphasized the need for proper food, clothing and appropriate
medical treatment for the prisoners. Following the recommendations of this
committee, it was directed that Superintendents of jails in all the provinces
should be Civil Surgeons.

Thereafter, certain recommendations were made by the third Jail


Reforms Committee in the year 1877 regarding the jail administration
generally. That followed the fourth Jail Reforms Committee of 1888-89,
which mainly recommended changes in prison rules and also advocated for
classification and segregation of prisoners into casual and habitual; most of
its recommendations were incorporated in the jail manuals of various
provinces.

Thereafter came the All India Committee of 1892, which resurveyed


the whole concept of jail administration and laid down detailed rules, and
that formed precursor to the Prisons Act, I 894 applicable to the jails
throughout the country as uniform law.

75
The Prisons Act of 1894, empowered the then existing provinces to
lay down their own prison rules for the overall prison administration. The
Act provided for classification of prisoners and abolished the sentence of
whipping. The medical facilities which had already been extended to
prisoners in the year 1866 were further improved and better amenities were
provided to women inmates to protect them against contagious diseases.
The Act tried to secure uniformity in treatment of the prisoners. Despite
these improvements, the prison policy as reflected through the Act, by and
large, remained deterrent.

The year 1897 saw a milestone in the field of prison reforms in the
enactment of the Reformative Schools Act that recommended the criminals
below the age of 15 years to be sent to the Reformative Schools instead of
prisons. That followed the Prisoners Act of 1900. From the year 1907
onwards further rigorous efforts were made to improve the condition of
juvenile and young offenders, and they were now kept segregated from
hardened adult offenders so as to prevent their contamination. But as a
matter of overall prison system, till the year 1919, main philosophy
remained deterrence, with not much emphasis on reformation. The system
failed to notice sight of the salutary impacts that could be gained by
individualization of criminals.

During that era, the freedom of India movement had a strong impact
on prison conditions in the country. The prison administrators, who were
mostly British officials, classified the political prisoners mainly into violent
and nonviolent categories. Summary trial political prisoners being mainly
educated middle class or even the financially affluent class of Indian
society, the British prison authorities had to frame elaborate and meticulous
jail regulations for the freedom fighters with minutest details about
prisoners’ food, medical facilities, visitors and parole etc. With the

76
additional burden on prison system on account of deluge of political
prisoners there was extra burden on traditional jail budgets, and
consequently, the non political prisoner class forming conventional part of
the system got ignored and the condition of prisons deteriorated severely.

In order to bring improvements in the overall prison system, in 1919-


20, last pre independence Jail Reforms Committee, chaired by Sir
Alexander Cardew (an Indian civil servant of British origin who served as
Inspector General, Prisons during 1892-1899 and the acting Governor of
Madras from 29 March 1919 to 10 April 1919) was constituted. Cardew
Committee inspected prisons in not only India, hut also in Japan, Burma,
Philippines, Hong Kong, UK and USA and concluded that prisons should
have not just deterring effect but also reforming effect on criminals. The
Committee observed that, the aim of the prison administration is the
prevention of further crime and the restoration of the criminal to the society
as a reformed character. The Committee emphasized that administration of
jail system is the key to prevention of further crime in a society and
reformation of criminals. The report dealt significantly with the prison staff,
separation and segregation of criminals, prison labour, discipline, reforms,
hygiene, medicare, and after cate programme for the rehabilitation of
released prisoners. It further recommended that the maximum intake
capacity of each jail should be fixed, depending on its shape and size.
Solitary confinement as a method of punishment also was criticized and
taking a lead in this direction, the State of Bombay abolished solitary cells
from its prisons, where after other provinces followed the suit and reformed
their prisons.

On the introduction of Montagu-Chelmsford Reforms Committee


report, jail services became the State subject and the provinces exhibited
great enthusiasm in jail reforms, by appointing a series of Jail Reforms
Committees.

77
2.3.4 Prison System Post Independence

In the year 1949, Pakwasa Committee recommended the system of


utilizing prisoners as labour for road work without any intensive
supervision on them. It was thereafter that the system of payment of wages
to the prisoners for their labour was introduced. Laws were also introduced
in jails whereunder the inmates who behaved well during their term of
imprisonment, were rewarded by suitable reduction in the period of their
sentence. The ultimate object of these reforms was to protect the society
from criminals, to reform the offenders, to deter them and to extract
retribution for criminal acts to the satisfaction of the society.

The Constitution of India enlisted ‘Prisons, reformatories, Borstal


institutions and other institutions of a like nature, and persons detained
therein; arrangements with other States for the use of prisons and other
institutions’ in the State list of the Seventh Schedule. Consequently, the
Union Government ceased to have any responsibility of modernizing the
prisons and their administrative structures across the States.

In the year 1951, at request of the Government of India, under the


Technical Assistance Programme, the United Nations sent Dr W C
Reckless, a technical expert on Crime Prevention and Treatment of
Offenders, for his recommendations on prison reforms ii India. Dr Reckless
advocated for the development of the whole time probation and after care
services, the establishment of new jails with specialized functions, legal
substitutes for short term imprisonment sentences, reduction in the number
of undertrial prisoners and revision of Jail Manuals.

Following major policy guidelines regarding reformation and


rehabilitation of prisoners were deliberated upon and unanimously accepted
in the Government:

78
1. That the correctional services should form an integral part of
the Home Department of each State and a Central Bureau of
Correctional Services should he established at the Centre;

2. That the reformative methods of probation and parole should


be used to reduce the population burden on prisons;

3. That the aftercare units should be set up in each State;

4. That solitary confinement as a mode of punishment should be


abolished;

5. That classification of prisoners for the purposes of their


treatment was necessary; and

6. That State Jail Manuals should be revised periodically.

On suggestions or Dr Reckless, an All India Conference of Inspector


Generals of Prisons was held in Bombay in 1952, on whose
recommendations a Committee was constituted to prepare Draft All India
Jail Manual in 1957 and Central Bureau of Correctional Services was
created in 1961.

Establishment or the Central Bureau of Correctional Services,


renamed in the year 1975 as National Institute of Social Defence was a very
significant step as this institute undertook research, training and
documentation etc social defence and rendered advice to the States on these
issues.

In the year 1972, Government of India constituted a Working Group


on Prisons, which submitted its report in 1973, thereby recommending
establishment of research unit at the headquarters of Inspector General of
Prisons in each State, mid setting up of training institutes in each State. The

79
most remarkable recommendation of’ this Group was the inclusion of
prison reforms in the Five Year Plan, so that explicit budgetary allocations
are attached with this subject, in order to make the prison reform efforts
better organized and institutionalized.

Then, in the year 1979 also a Conference of Chief Secretaries made


significant recommendations for reduction of jail population including
effective system of review of undertrial prisoners, appointment of part time
or full time law officers in jail to enable the prisoners contest the trials,
amendment of law pertaining to transfer of prisoners, improvement in the
system of inspection and supervision in jails to reduce corruption,
indiscipline and malpractices, and setting up of National and State Boards
of Visitors with appropriate amendments in the Jail Manuals.

In the month of April, 1980, the Government of India appointed an


All India Jail Reforms Committee chaired by the Hon’ble Mr Justice A N
Mulla (retd), which gave its first report on the Central Jail, Tihar, Delhi in
December, 1980 and its final Report in the month of March, 1983. The
Committee suggested setting up of a National Prison Commission as a
continuing body in order to bring about modernization of prisons in India.
The Committee also suggested that the dichotomy of prison administration
at Union and State level should he done away with. The Committee
recommended segregation of mentally disturbed prisoners and their
placement in mental asylums and also recommended total ban on the
atrocious practice of clubbing together juvenile offenders with the hardened
criminals in prisons owing to the atrocities and personal assaults on juvenile
prisoners, which also came to the notice of the authorities in the notorious
Tihar Jail Inmate cases and Agra Protective Home case . Consequently, a
comprehensive legislation was enacted for the security and protective care
of delinquent juveniles. Yet another recommendation of the Mulla
Committee was classification of prisoners on scientific and rational basis by

80
adopting the foreign procedure of appointing ombudsmen to decide the
prisoner’s grievances.

Some of the 659 significant recommendations of the Mulla


Committee were:

1. Formulation of the Directive Principle of National Policy on


Prisons and insertion thereof in Part IV of the Indian
Constitution;

2. Enlisting the subject of Prisons and allied services in the


Concurrent List of the Seventh Schedule to the Indian
Constitution;

3. Improvement as regards arrangements for food, clothing


sanitation, ventilation etc. for the prisoners:

4. Proper training of prison staff and its organization into


different cadres;

5. Constitution of an All India Service called the Indian Prisons


& Correctional Service for recruitment of prison officials;

6. Constitution of aftercare, rehabilitation and probation as an


integral pan of prison service;

7. Development of scheme for prison visits by the media and


public as a part of open rehabilitation process;

8. Reduction in lodging of undertrials in jail by speedy trials and


liberalization of bail provisions;

9. Segregation of undertrials from the convicts;

10. Adequate budgetary provisions for prison reforms.

81
In the month of May, 1956, a National Expert Committee on Women
Prisoners, chaired by Hon’ble Mr Justice V R Krishna lyer was constituted,
which submitted its report 1 June 1987, thereby recommending induction of
more women in the police force with a view to deal with female and
juvenile delinquents. The expert committee opined that women could be
employed in non combative roles that require restraint, patience and
endurance and they should be specially trained to deal with agitations and
mob upsurges in a humane and sensitive manner and acquire mastery over
tactics of unnamed combat. The Committee mainly recommended for:

1. Provision of national policy for women prisoners in India;

2. Enactment of new rules and regulations qua punishment and


conduct of women prisoners;

3. Provision of Free Legal Aid to women prisoners;

4. Construction of separate prison for women; and

5. Provision for proper care of the child born to a woman


prisoner in jail as regards medical help and diet,

Subsequently, in the year 1996, the Hon’ble Supreme Court of India


21
in the case titled Ramanmurthv v. State of Karnataka dealt with the
various aspects of prison system and recapitulated in the concluding part the
various directions as under:

1. To take appropriate decision on the recommendations of the


Law Commission of India made in its 78th Report on the
subject of ‘Congestion of undertrial prisoners in jail’ as
contained in Chapter 9. (Para 20A).

21 JT 2002 (8) SC 314

82
2. To apply mind to the suggestions of the Mulla Committee as
contained in Chapter 20 of Volume I of its Report relating to
streamlining the emission system and premature release
(parole), and then to do the needful, (Para 23).

3. To consider the question of entrusting the duty of producing


UTPs on remand dates to the prison staff. (Para 27).

4. To deliberate about enacting of new Prison Act to replace


century old Indian Prisons Act, 1894. (Para 31). We
understand that the National Human Rights Commission has
prepared an outline of an All-India statute, which may replace
the old act; and some discussions at a national level
conference also took place in 995. We are of the view that all
the States must try to amend their own enactments, if any, in
harmony with the all India thinking in this regard.

5. To examine the question of framing of a model new All India


Jail Manual as indicated in para 31.

6. To reflect on the recommendations of Mulla Committee made


in Chapter 29 on the subject of giving proper medical
facilities and maintaining appropriate hygienic conditions and
to take needed steps. (Paras 35 and 36).

7. To ponder about the need of complaint box in all the jails.


(Para 37).

8. To think about introduction of liberalisation of


communication facilities. (Para 40),

9. To take needful steps for streamlining of jail visits as


indicated in para 42.

83
10. To ruminate on the question of introduction of open air
prisons at least in the District Headquarters of the country.
(Para 48).

In terms with the said judicial directions, a committee was set up in


the Bureau of Police Research and Development (BPR&D), which drafted a
Jail Manual and the same was accepted by the Central government and
circulated to State governments in late December 2003.

In the year 1999, a draft Model Prisons Management Bill, called the
Prison Administration and Treatment of Prisoners Bill, 1998 was circulated
to replace the Prisons Act, 1894 by the Government of India to the
respective states but this bill is yet to be finalized. In the year 2000, the
Ministry of Home Affairs, Government of India, appointed a Committee for
the Formulation of a Model Prison Manual which would be a pragmatic
prison manual, in order to improve the Indian prison management and
administration.

Over a series of reports submitted by various committees, coupled


with various judicial pronouncements on the subject of jail reforms there
has been a progressive expansion of the jurisprudence of prisoners’ rights in
India. Past few decades have witnessed several significant changes in the
prison system across India, though a lot more development is needed.

The modern Indian prison is an institution for the treatment and


reformation of criminals. A classification of prisoners has been worked out
to suit the new treatment methods; prisoners now avail the facilities such as,
furlough, medical aid, educational or occupational training etc. Open air
prisons and community service as an alternative mode of punishment are
the latest subjects being worked upon. The conservative and outdated ways
of handling criminals are now gradually sought to be substituted by liberal
treatment methods.

84
Despite all the reformative measures being tried, the general
condition of Indian prisons is still far from satisfactory. The social contempt
for prison life keeps all sections of society uninformed, if not ill informed,
about life inside the prison. The media rarely highlights the prison life; that
too happens only when some high profile person is involved and even in
such cases, prison life is projected positively or negatively, keeping in mind
the criminal concerned and preconceived notions of the particular media, if
not a sustained paid campaign for or against the criminal. Public opinion –
uninformed and ill informed, seems least concerned about even
humanizing, what to say of modernizing the prisons. Unfortunately, most of
the laudable work in India on this subject has remained a matter of mere
academic talk, with least amelioration of the prisoner, for whose basic
rights the system has been coming up with newer and newer scientific
recommendations and even judicial directions. Prisoner in India till date
continues to be denuded of not just his human rights, but even his basic
right to be human.

2.4 THE MULLA COMMITTEE

In the year of 1980 the Government of India set-up a Committee on


Jail Reform under the chairmanship of Justice A. N. Mulla. The basic
objectives of the Committee were to review the laws, rules and regulations
keeping in view the overall objective of the protecting society and
rehabilitating offenders in India. The Mulla Committee submitted its report
in year1983.the opinion of the committee was that prison conditions in
India is critical and criticized by every section like media press etc.
committee also depicted harmful effect of prison culture on offenders of
non serious crime22.

22 The report of the All India Committee on Jail Reforms (1980-83) chaired by Mr. Justice A N
Mulla,

85
2.5 THE KRISHNA IYER COMMITTEE

In the year of 1987 the Government of India had appointed the


Justice Krishna Iyer Committee to undertake a study on the situation of
women prisoners in India. It has recommended the inductions of more
women in the police force in view of their special role in tackling women
and child offenders.

***

86
Chapter - 3

NATIONAL AND
INTERNATIONAL
PROVISIONS REGARDING
PRISON SYSTEM AND
INMATES
CHAPTER -3

NATIONAL AND INTERNATIONAL PROVISIONS


REGARDING PRISON SYSTEM AND INMATES

3.1 GENERAL

Though the prison has been a very sensitive issue in all the nations
of the world but the systems and treatment varies from nation to nation
.governments along with the non -government organisations, institutions
are trying to improve the conditions of inmates. Various attempts have been
made to protect the rights of the prisoner through constitutional and other
statutory provision at both national and international level.

3.2 NATIONAL SCENERIO

3.2.1 Constitutional Safeguards- Prisoners Rights

The fundamental rights guaranteed under the Constitution are not


absolute and many restrictions have been imposed on their enjoyment.
Right to freedom of the person is one of the most important rights among
the fundamental rights. When a person is convicted or put in the prison his
status is different from that of an ordinary person. A prisoner cannot claim
all the fundamental rights that are available for an ordinary person.
However, certain rights which have been enumerated in Part III of the
Constitution are available to the prisoners also because a prisoner remains a
"person" inside the prison. The Supreme Court of India and various High
Courts in India have discussed various decisions

The Preamble of the Constitution of India declares that "we the


people of India have solemnly resolved to constitute India into sovereign
socialist, secular, democratic republic and to secure all its citizens"

87
 Justice -social economic and political;
 Liberty -thought and expression, belief and faith; Equality-of status
and opportunity and to promote among them all;

 Fraternity, assuring the dignity of individuals and unity and integrity


of the nation.

It means that even the constitution from its inception has kept
individuals in mind before its promulgation as the constitution is made to
defend and protect its people and to establish peace and harmony in the
society. It aims to make the country safe to live in by the citizens, the way
Universal Declaration of Human Rights is preaching. Following rights are
entitled to following rights-

3.2.1.1 Right to Equality: Article 14

“The state shall not deny to any person equality before law or the
equal protection of laws within the territory of India”

This is One of the important provisions of the Indian Constitution


which is generally applied by the courts is article 14 in which the principle
of equality is embodied. The rule that "like should be treated alike" and
the concept of reasonable classification as contained in the article 14 has
been a very useful guide for the courts to determine the category of
prisoners and their basis of classification in different categories.

3.2.1.2 Limitation On Right To Freedom: Article 19

Article 19 of the Constitution guarantees six freedoms to the citizens


of India. Among these certain freedoms like ‘freedom of movement‘,
‘freedom to reside and to settle‘and freedom of profession, occupation,
trade or business" cannot be enjoyed by the prisoners because of the very
nature of these freedoms and due to the condition of incarceration. But
other freedoms like "freedom of speech and expression", "freedom to

88
become member of an association" etc. can be enjoyed by prisoner even
behind the bars and his imprisonment or sentence has nothing to do with
these freedoms. But these will be subjected to the limitations of prison
laws.

3.2.1.3 Protection Against Conviction of Offences: Article 20(1)

According to this provision “no person shall be convicted of any


offence except for the violation of law in force at the time of the
commission of the act charged as an offence, nor be subject to penalty
greater than that which might have been inflicted under the law in force at
the time of the commission of the offence”

It restricts the power of legislature to implement any criminal law


retrospectively, it means if an act is not an offence at the date of its
commission it cannot be an offence at the date subsequent to its
commission.1

3.2.1.4 Protection Against Double Jeopardy: Article 20(2)

This provision says that “no one shall be prosecuted and punished
for the same offence more than once”. This incorporates the principle that
No one should be put twice in peril for the same offence. If a person is
prosecuted again for the same offence for which he has already been
prosecuted he can take complete defence of his former acquittal or
conviction. The requirement of this article is that proceeding must take
before a “court” or judicial tribunal.2

3.2.1.5 Prohibition Against Self Incrimination: Article 20(3)

It provides that “No person accused of any offence shall be


compelled to be a witness against himself.”

1 Chief inspector of mines vs K.c Thapper AIR1961 SC 883


2 Maqbool hussain vs state of Bombay AIR1953SC325

89
General rule in criminal law is that accused must be presumed to be
innocent unless contrary is proved. This constitutional safeguard
incorporates this rule which protects self incrimination of any accused. the
protection is available in case of compulsion and not in the case where
accused himself wave his privilege by entering into the witness box or
when he voluntarily gives evidence on request .In case Nandini Satpathy Vs
P.L Dani3 the supreme court has widened the scope of this clause and held
that compelled testimony is not only limited to physical torture but also
extends to techniques of psychological interrogations which causes mental
torture.

3.2.1.6 Scope of Right to Life and Personal Liberty : Article 21

“No person shall be deprived of his life or personal liberty except


according to procedure established by law”.

There is no guarantee of prisoner's right as such in the Constitution


of India. The right to personal liberty has now been given a very wide
interpretation by the Supreme Court. This right is available not only for the
free people but even to those behind bars. The right to speedy trial, free
legal aids, right against torture, and right against inhuman and degrading
treatment accompany a person into the prison also. Article 21 of the Indian
Constitution has been a major centre of litigation so far as the prisoners
rights are concerned. It embodies the principle of liberty. This provision has
been used by the Supreme Court of India to protect certain important rights
of the prisoners. After Maneka Gandhi case, this article has been used
against the arbitrary actions of the executive especially the prison
authorities. After that decision it has been established that there must be a
fair and reasonable procedure for the deprivation of the life and the
personal liberty of the individuals.

3 AIR1977SC1025

90
The struggles for freedom in India have played a crucial role in
initiating the process of identifying certain rights for the prisoners. Article
21 of the Constitution guarantees the right of personal liberty and thereby
prohibits any inhuman, cruel or degrading treatment to any person whether
he/she is a national or foreigner.

The Supreme Court of India, by interpreting Article 21 of the


Constitution, has developed the human rights theology for the preservation
and protection of prisoners rights to maintain human dignity. Although it
has clearly been mentioned that the deprivation of Article 21 is justifiable
according to procedure established by law, this procedure cannot be
arbitrary, unfair or unreasonable. In a celebrity case (Maneka Gandhi Vs.
Union of India., 1978), the Apex Court opened up a new dimension and lay
down that the procedure cannot be arbitrary, unfair or unreasonable. Article
21 imposed that the restriction upon the state where it is prescribed the
procedures for depriving a person of his life or personal liberty. This was
further upheld (Francis Coralie Mullin v. The Administrator, 1981)
“Article 21 requires that no one shall be deprived of his life or personal
liberty except the procedure established by the law and this procedure must
be reasonable, fair and just and not arbitrary, whimsical or fanciful”.

3.2.1.7 Scope of Right to Education for Prisnors

According to various international conventions and due to


reformative approach in India the trend is changing and now a detained and
imprisoned person shall also have right to get the reasonable education
which can be availed from public sources within the limitations of the state,
subject to the maintenance of security and public order. Provision must be
made for education facility of prisoner mainly woman and youth offenders
so that they can improve their personality behind the bars.

91
State must setup new educational institution along with the faculty
so that when prisoner are released from prison they can pursue their further
education. The courts must take watch of this matter that fundamental right
to education shall not be defeated by the prison administration of state. The
education of young prisoner should be made compulsory.

3.2.1.8 Rights of Person Under Arrest and Detention: Article 22(1)

Article 22 (1) of the Constitution directs that no person who is


arrested shall be denied the right to consult and to be defended by the legal
practitioner of his choice as well. This legal right is also available in the
code of the criminal procedure under section 304. The court through
various judgments has also held that from the time of arrest, this right
accrues to the arrested person and he has the right of choice of a lawyer.
The accused may refuse to have a lawyer but the court has to provide an
Amicus Curie to defend him. When an accused is undefended it is the duty
of the court to appoint a counsel on Government expenses for his defence.
In a series of cases the Supreme Court of India considered the scope of the
right of the prisoners or the detainees to have interviews with the family
members, friends and counsel. In Dharmbir vs. State of U.P4 the court
directed the state Government to allow family members to visit the
prisoners and for the prisoners, at least once a year, to visit their families.
Following things are essential in regard to these provisions.

(a) An arrested person being held in custody is entitled, if he so requests


to have one friend, relative or other person who is known to him or
likely to take an interest in his welfare, told as far as practicable that
he has been arrested and where is being detained.

(b) The police officer shall inform the arrested person of his right when
he is brought to the police station.

4 Dharambir And Anr vs State Of U.P 1979 AIR 1595, 1980 SCR (1) 1

92
(c) An entry should be required to be made in the diary as to who was
informed of the arrest. These protections from the power must be
held to flow from the Articles 21 and 22 (1) and enforced strictly.

3.2.1.9 Right to be Produced before Magistarte: Article 22(2)

This article provides basically two rights:

(1) Every person whether man or woman who has been arrested has
right to be produced before the nearest magistrate within twenty four
hours of arrest excluding time taken for the journey from place of
arrest to court of magistrate.

(2) No such person shall be detained beyond the said period of twenty
four hours without the authority of a magistrate. It is clear here that
provision of this article are applicable only when person has been
arrested and is accused of some offence or any other act and it has
no application when such person has been held guilty of the offence
and detained in pursuance of conviction held by court. Keshav
Singh v speaker, legislative assembly.5

3.2.1.10 Right to Constitutional Remedies: Article 32

When the personal liberty of a person is deprived by the officials


illegally, the remedy available to them is by way of Writs under Article 226
of the constitution before the high courts, and under article 32 of the
constitution before the Supreme Court.

Article 32 says,

“The Supreme Court shall have power to issue directions or orders


or writs, including writs in the nature of habeas corpus, mandamus,

5 AIR1965All349 .

93
prohibition, quo warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by part III”

Article 226 says

“Notwithstanding anything in Article 32 every High Court shall have


powers, throughout the territories in relation to which it exercise
jurisdiction, to issue to any person or authority, including in appropriate
cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibitions, quo
warranto and certiorari, or any of them, for the enforcement of any of the
rights conferred by Part III and for any other purpose”.

Dr .B.R Ambedkar called this Article as “The fundamental of the


fundamental right and “heart and soul of the constitution”. The most
significant of the Human Rights is the exclusive right to the Constitutional
remedies under Articles 32 and 226 of the Constitution of India. Those
persons whose rights have been violated have right to directly approach the
High Courts and the Supreme Court for the judicial rectification, redressal
of the grievances and enforcement of Fundamental Rights. In such a case,
the courts are empowered to issue an appropriate directions, orders or writs
including writs in the nature of Habeas Corpus, Mandamus, Prohibition,
Quo-warranto, and Certiorari .No time limit is prescribed for issuing the
Writs in the constitution, and has been left to courts to decide.

3.2.1.11 Writ of Habeas Corpus : Preventive as Well as Remedial

The Literal meaning of Habeas Corpus is “to have body”. This writ
is issued to protect the personal liberty of an individual against arbitrary
action of both state and private individual. The scope of this provision is
wide and can be availed wherever personal liberty of person is restrained.
Before invoking remedy of this Writ it is necessary that petitioner is
physically restrained in his personal liberty involving his freedom of

94
movement. the issuance of this writ means an order to detaining authority
or person to physically present before the court the detained person and
show the cause of detention so that the court can deterermine its legality
and if the detention is found to be illegal, the detained person is set for with.
The power of court under article 32 is not only preventive but also remedial
in nature which means that it has power to grant compensation also. In
M.C Mehta v union of India6 court held that compensation can be
awarded in “appropriate cases” and not in every case. The appropriate cases
are those where infringement of fundamental right is gross and glaring.

3.2.1.12 Article 39-A : Equal Justice and Free Legal Aid

This article embodies principle of fair procedure during trial by


courts. State shall secure that the operation of legal system promotes justice
and ensure that the opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities. If a prisoner is unable to
avail his constitutional and legal rights or needs legal assistance, he cannot
be ignored just because of indigence. If prisoner is unable to engage a
lawyer than under constitutional directions and other statutory provisions
court has power to assign counsel for such prisoner for doing complete
justice.

Free legal aid was considered ‘an essential ingredient of reasonable


fair and just procedure for a person accused of an offence. Khatri v State
of Bihar.7

3.2.1.13 Seventh Schedule and Article 246


Our constitutional setup provides the power distribution between the
Centre and the states. This part is divided between legislative,
administrative and executive powers. The legislative section is divided into

6 1988 AIR 115


7 1981SC982AIR

95
three lists, Union list, States list and Concurrent list. So accordingly
parliament can make laws for matters incorporated in the union list whereas
state legislature can make laws which are included in state list. Both
parliament and state can make laws on the matters which are included in
concurrent list.
ARTICLE 246 (3) says
“The Legislature of any State has exclusive power to make laws for
such State or any part thereof with respect to any of the matters enumerated
in List II in the Seventh Schedule in Indian Constitution referred to as the
“State List”. “But this provision is not absolute they are subject to powers
of parliament who can exercise powers of state legislatures under certain
circumstances.
State list entry iv includes
“Prisons, reformatories, Borstal institutions and other institutions of
a like nature, and persons detained therein, arrangements with other States
for the use of prisons and other institution”.
So, according to constitution of India ‘prison’ basically is subject
matter of the state and state legislatures are entrusted to make laws for them
but such shall be in conformity with laws made by parliament because the
supremacy in case of ambiguity is of the latter.
3.2.2 Other National Statutory Provisions Relating to Prison System
3.2.2.1 The Prisons Act, 1894
Prisons Act, of 1894 is the initial legislation related to prison system
in India. Commenting upon the Prisons Act, of 1894, Dr. Amarendra
Mohanty in her book Prison system in India observed the following:
“This Act was largely based on deterrent principles reflected mainly
the British policy on the subject. The legislators took little pains to look into
the other side of the problem. They were concerned more with the prison
working than with treatment of the prisoners. This Prisons Act remained

96
unchanged for last more than one hundred years except very minor
change.”8

Among the various other provisions under the Prisons Act, 1894, the
following sections are related with the reformation of prisoners in one-way
or the other:

Section 4- Accommodation for prisoners, it ensures the safe and


secure living for prisoners inside the jail.

Section 7 - Temporary accommodation for prisoners, which means just


after entry of prisoner into jail a time being arrangement for them is
ensured:

Section 8- Control and duties of officers of prisons .guidelines to


prison staff for safety and security of prisoner is ensured.

Section 12 - Records of prisoners to be kept by Superintendent.

Section 15 -Report on death of prisoner, friend or relatives of


prisoner are informed on death or in case of emergency

Section 19- Jailer to be present at night to look after security of jails .

Section 24 -stipulates that whenever a prisoner is admitted in the


prison, he shall be searched and all weapons and prohibited articles
confiscated from him.

Section 27 - Provisions relating to separation of prisoners, containing


female and male prisoners, civil and criminal prisoners and convicted and
undertrail prisoners

Section 33- Supply of clothing and bedding to civil and unconvicted


criminal prisoners.

Section 34- Employment of civil prisoners.

Section 35- Employment of criminal prisoners

8 A Mohanty and Narayan Hazare, ‘Indian Prison system’ p. 19.

97
Section 37- Sick prisoners and their treatments . Provisions are made
for proper diagnosis and treatment of ill prisoners. Availability of doctors
and other medical staff is ensured for that.

Section 50 -Medical Officer to certify to fitness of prisoner for


punishment.

Section 55 -of Act provides that it is the responsibility of the Jail


Superintendent to undertake effective measures to ensure the safe custody
and security of the prisoners.

3.2.2.2 The Prisons Act, 1900

There are many guidelines in this act which throws light upon the
prison system and its reformation:

Section 14- That all reference to prisons or the imprisonment or


confinement shall be construed as referring also to reformatory schools to
detention there.

Section 29 -Provisions related to removal of prisoners from one


prison to other prison in case of urgency or in need.

Section 30- How lunatic prisoners will be dealt by the


administration. their stay in prison, treatment are to be looked upon by staff.

Section 33 Release on recognizance, by order of high court, of


prisoner recommended for partner.

3.2.2.3 The Identification of Prisoners Act, 1920

This act contains various rules regarding measurements and


photographs including finger-impressions and foot-print impressions of any
person who has been convicted of any offence punishable with rigorous
imprisonment for a term of one year of upwards, or of any offence which
would render him liable to enhanced punishment on a subsequent
convicted, allow his measurements and photograph to be taken by a Police
Officer in the prescribed manner.

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Section 6- Resistance to the taking of measurements –if a convicted
person creates obstructions or resistance to authorities while court has
ordered to take his finger impression or foot print etc. than authorities can
use all the means to take these identification marks.

Section 7- This section says that if the accused is acquitted than his
photographs and records of measurements should be destroyed.

3.2.2.4 The Government of India Act 1935

According to this act the subject of jails was transferred from the
centre list to provincial governments and hence further reduced the
possibility of uniform implementation of a prison throughout the nation.
Now provincial or state governments have their own rules for the day to
day administration of prisons, for keeping and maintaining the prisoners,
and prescribing various rules related thereto.

3.2.2.5 The Transfer of Prisoners Act, 1950

This Act contains procedure related to transfer of prisoners from one


state to another, but for the application of provision both transferring state
and receiving state must have give their prior consent. This Act helps for
reducing crowd from over-populated jails to less congested jails.

Section 3 of the act says,

Where any person is confined in a prison in a state-

(a) Under sentence of death, or

(b) Under or in lieu of, sentence of imprisonment or transportation, or

(c) In default of payment of fine, or

(d) In default of giving security for keeping the peace or for maintain
good behavior, the government of that state may, with the consent
of the government of any other state by order, provide for the
removal of prisoner from that state to any prison in other state.

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Prison authorities in receiving state shall make arrangements for the
detention of the prisoner in this respect.

3.2.2.6 Prisoners [Attendance in Courts] Act [1955]

This Act contains provisions for the attendance in courts of persons


confined in prisons for obtaining their evidence or for answering criminal
charge.

Section3 -Any criminal court may, if it thinks that the evidence of


any person confined in any prison is material in any matter pending before
it make an order, and direct the officer-in charge of the prison, in respect of
a person confined in a prison situated outside the State in which the court is
held.

Section4 -State Government is empowered to exempt certain


prisoners from appearance of in court in certain cases which are mentioned.

a) The nature of the offence for which or the grounds on which the
confinement has been ordered in respect of the person or class of
persons;

b) The likelihood of the disturbance of public order if the person or


class of persons if allowed to be removed from the prison;

c) The public interest, generally.

Section 5- Prisoners to be brought up by officer- in-charge of the


prison in the court where his presence is required which the person named
there in confined.

Section 7- Commission to be issued by court for the examination of


prisoners in certain cases.

3.2.2.7 The Probation of Offenders Act, 1958

As per the development in the world regarding human right


jurisprudence and demand from various non government organizations,

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probation laws in India were introduced through this act. The special
features of this act are-

Section 3 - Power of court to release certain offenders after


admonition-When any person is found guilty of having committed theft
punishable under section 379 -381or section 404 or section 420 of the
Indian Penal Code or any offence punishable with imprisonment for not
more than two years, and no previous conviction is proved against him and
the court by which the person is found guilty is of opinion that, having
regard to the circumstances of the case including the nature of the offence,
and the character of the offender, it is expedient so to do, he court may,
instead of sentencing him to any punishment or releasing him on probation
of good conduct release him after due admonition. The Court should have
extended the benefit of probation to the appellant instead of imposing a
sentence of fine on him it was held in Keshav Sitaram Sali v. State of
Maharashtra,9

Section 4- Power of court to release certain offenders on probation


of good conduct.—(1) When any person is found guilty of having
committed an offence not punishable with death or imprisonment for life
and the court by which the person is found guilty is of opinion that, having
regard to the circumstances of the case including the nature of the offence
and the character of the offender, it is expedient to release him on probation
of good conduct

3.2.2.8 Model Prison Manual, 1960

This was outcome of Dr. Reckless committee which was appointed


in year 1957 and made its recommendation in year 1960.basically it was
guideline to the central government and various state governments to
improve prison administration in India.

9 AIR 1983 SC 291

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Initial chapters of this manual dealt with prison setup and
infrastructure. It was proposed that prison administration will be headed by
inspector general who will be supported by various deputy inspector
generals, prison superintendent and other subordinate officers. The manual
recognized the classification as well as separation of prisoners on the basis
of age sex, nature of crime etc. chapter23 of the manual provides for health,
education of prisoners and course curriculum for them. Chapter 24
recommended various training programs and payment of wages to
prisoners. it suggested various rehabilitation programs and recommended
for better prison administration and management.(chapter28).

3.2.2.9 The Repatriation of Prisoners Act, 2003

The word Repatriation is the process of returning a person to his or


her place of origin or citizenship. This includes the process of returning
refugees or military personnel to their place of origin following a war. so
when a contracting nation ask India to transfer any prisoner to his native
place then central government can transfer that person if some reasonable
conditions are fulfilled. The main contents of this act are:

Section 4- Application for transfer by a prisoner.—Any prisoner who


is a citizen of a contracting State may make an application to the Central
Government for transfer of his custody from India to that contracting State,
Provided that if a prisoner is not able to make an application himself
because of his ill-health, mental condition, old age or being a minor.

Section 5 -consideration of request by Central Government if -

 No inquiry, trial or any other proceeding is pending against the


prisoner;

 Death penalty has not been awarded to the prisoner;

 The prisoner has not been convicted for an offence under the martial
law; and

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 transfer of custody of the prisoner to the contracting State shall not
be prejudicial to the sovereignty, security or any other interest of
India.

 If the central government is convinced regarding transfer It shall be


lawful for the person authorised by the contracting State to whom the
custody of a prisoner is delivered receive and hold in custody such
prisoner and to convey him out of India and if the prisoner escapes
from such custody within India, the prisoner may be arrested without
warrant by any person who shall

Section 10- Transfer of record where a prisoner is or is to be


transferred to a contracting State under the provisions of this Act, the
Central Government may requisition the records of any proceeding,
including judicial proceedings relating to that prisoner from any court or
office, and may direct that such records shall be sent to the Government of
the contracting State.
Section 11 - Power of court and Central Government shall not be
affected,the transfer of a prisoner from India to a contracting State shall not
affect the power of the court which passed the judgment to review its
judgment and power of the Central Government or State Government to
suspend, remit or commute the sentence in accordance with any law for the
time being in force.

3.2.2.10 Model Prison Manual for the Superintendence and


Management of Prisons in India 2003

(Formulated by Bureau of Police Research and Development,


Ministry of Home Affairs Government of India, New Delhi
This committee involving higher officials related to prison
administration in India after intensive discussions and deliberations on the
subjects assigned to it, submitted the drafts for consideration of
government. In this process, the Working Groups were duly formed which

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were assisted by the secretariat of the committee by way of all the relevant
research material including the following:
(a) A review of the existing laws, rules and regulations governing
prisons,

(b) A comparative analysis of the provisions of the State Prison


Manuals of India,

(c) A thorough study of the recommendations made by the All India


Committee on Jail Reforms, Supreme Court Judgments and
various international instruments on the treatment of prisoners to
which India is a party;

(d) A close scrutiny of the implications of the proposed Bill on the


prisons being finalised by the ministry of home affairs and
identification of gaps in the provision of State Prison Manuals.

This committee discussed various provisions resulted into suggestion


which were mainly following:

3.2.2.10.1 Admission of Prisoners in the jail (CHAPTER v)

General rules regarding entry of prisoners in jail are discussed in this


chapter. it says that No person will be admitted in a prison as a prisoner
unless accompanied by a writ, warrant or order in the prescribed form,
signed, dated and sealed by the competent authority.The concerned prison
officer/Superintendent will give a receipt in a printed form to the officer
who delivers a prisoner at the prison noting therein the property received
with the prisoner, which will be carefully examined and shown to the
prisoner at the time of his admission.

The Medical Officer shall enter, or cause to have entered under his
supervision the following details regarding prisoner:

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a) The prisoner's weight on admission

b) His state of health

c) The class of labour for which he is fit, if he is sentenced to


imprisonment with labour.

d) Entries to be made by the Superintendent

3.2.2.10.2 Maintenance of Prisoners (Chapter VI)

This chapter deals with various issue relating to maintenance of


prisoners for example Food Requirements of pregnant and nursing women,
Nutrients required, Scales of diet etc. further issues covered in this chapter
are:

a) Distribution and service of food-Inspector General of Prisons shall


prescribe the time for serving morning, mid-day and evening meals
in prisons.

b) Repair, Maintenance and inspection of clothing and bedding shall be


done by authorities regularly.

c) Accommodation and Ventilation shall be provided by the prison


authorities to each and every prisoner. Proper facility of light air
should be there without any interruption.

d) Cleaning of latrines- The latrines shall be thoroughly cleaned twice a


day or more often if necessary, with disinfectants

e) Bathing - All prisoners should be required to bath as frequently as


there is required.

3.2.2.10.3 Medical Care Of Prisoners (Chapter VII)

This chapter gives detail guidelines to authorities related with prison


management to provide medical facilities and treatment which is required to
prisoners. For that purpose there shall be appointed medical officers,
surgeons, nurses and other medical staff. There is also provision of

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establishing hospital accommodation for prisoners at central and district
prison. Inmates should be categorized for the purpose of treatment. It shall
be duty of medical officer to inspect the jail regularly to look after sick
prisoners. proper diagnosis ,medicines, medical diet shall be arranged for
them.

3.2.2.10.4 Contact With Outside World (Chapter VIII)

Every prisoner shall be allowed reasonable facilities for seeing or


communicating with, his/her family members, relatives, friends and legal
advisers for the preparation of an appeal or for procuring bail or for
arranging the management of his/her property and family affairs. He/she
shall be allowed to have interviews with his/her family members, relatives,
friends and legal advisers once in a fortnight. The number of letters a
prisoner can write in a month shall be fixed by the Government under the
separate rules. Suitable waiting rooms may be provided in every prison to
enable visitors to await their turn for interview. They may be given a token
to await their turn.

Other facilities provided to Prisoners

a) A copy of the rules relating to prisoners shall be placed in each cell


and one copy of the Do's and Don'ts for prisoners shall be given to
them. An abstract of the rules shall also be displayed inside the
prison gate and on the walls of important prison buildings.

b) All prisoners shall be allowed to receive soap, oil and tooth powder,
fruits and sweet from their friends and relatives, subject to the
condition that the quantity received is limited to their personal
requirements for a fortnight and that a thorough examination of the
articles, to be passed to the prisoners, is done by a senior officer of
the prison.

106
c) Where the prisoner seeks help to file an appeal or revision petition,
every facility for the excise of this right shall be provided to the
prisoner by the Superintendent of Prison. If a prisoner desires to file
an appeal and declares that he has no friends or relatives or agents
who can file an appeal on his behalf, he/she shall be provided with
writing materials and allowed to write his own petition or appeal.

3.2.2.10.5 Transfer Of Prisoners (Chapter IX)

According to provisions of this chapter, Prisoners may be transferred


from one prison to another for the following reasons

a) For custody and treatment in a suitable institution in accordance with


the classification procedure

b) For attendance in court for the purpose of standing trial or giving


evidence, on medical and humanitarian grounds, in the interest of
their rehabilitation.

c) When a female prisoner is transferred, a female Warder/Woman


Police Constable shall accompany her. But, her presence does not
relieve the responsibility of the police for the safe custody of the
prisoner in transit

3.2.2.10.6 Prisoners Sentenced To Death (Chapter XI)

This chapter mentions the provision related to prisoners upon whom


death punishment has been imposed. They shall be kept in separate cell
with the 24 hours security of a guard

A prisoner sentenced to death may be allowed the following facilities


with the approval of the Superintendent of Prison:-

Religious books;

Religious pictures;

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Rosary and essential religious emblems in accordance with security
measures;

Newspapers and books ; and Stationary articles.

A prisoner sentenced to death may be allowed the following acilities-

a) A prisoner sentenced to death shall not be put in fetters or handcuffed


unless he is so violent as to be dangerous to the guard or to himself.

b) If the Medical Officer finds a women prisoner sentenced to death to


be pregnant, the matter shall at once be brought to the notice of the
Inspector General of Prisons who shall seek the order of the
Government for commutation of the death sentence or for
postponement of execution till she gives birth to the child. The
execution shall not be carried out before the orders of Government
are received.

3.2.2.10.7 Emergencies (Chapter XII)

This chapter contains provisions related to emergency which says It


is the responsibility of the Superintendent to take sufficient measures for
preventing and controlling emergency situations hunger strike, suicide
epidemic etc in jails.

3.2.2.10.8 Vocational Training and Educational Programmes

Chapter 13 and 14 of the manual mention rules regarding vocational


training and educational programs. The purpose considered was proper
development of mind through intelligent manual labour, spirit of fellowship
and a cooperative way of living, and a sense of group adjustment and
Developing capacity for sustained hard work, also Building habits of
concentration, steadiness, regularity and exactness in work, Imparting and
improving work-skills, Awakening the self-confidence and self-reliance of
inmates. Training and preparing inmates for achieving lasting social

108
readjustment and rehabilitation, Imparting an occupational status and thus
creating a sense of economic security among inmates, Keeping inmates
usefully employed in meaningful and productive work, Preventing idleness,
indiscipline and disorder amongst them and at last Maintaining a good level
of morale amongst them and thus promoting a sense of self-as well as
institutional discipline among them.

3.2.2.10.9 PRISONERS WELFARE PROGRAMS (chapter xv)

Prison welfare programs which are given in chapter 15 can be


summarized as :

(a) Organizing various activities in prison like drama, acting film shows,
celebration of Independence Day, republic day and other festivals.
Also there is provision of holding time bound prisoner’s panchayats
etc.

(b) Cultural and recreational activities should be organized in all


institutions for maintaining the mental and physical health of
prisoners. These activities are the basic elements of rehabilitation
programmes for prisoners. These should form the integral part of an
institutional regime.

(c) Activities include Outdoor games like, Cricket, kabaddi, wrestling,


volley ball, badminton, football and basket-ball. Gymnastics.
Indoor games like Chess, Ludo and Carrom.

3.2.2.10.10 Other Reformative Programs and Schemes

a) Such programs include Daily Routine Program for Under trial


Prisoners which includes morning wake up, toilets than meditation,
P.T or group exercise, Cleaning of barracks cells, yards, open spaces
Cleaning of equipment, Work on voluntary basis, Educational

109
classes, Washing of clothes and bath, Meal and rest. Each Central
and District prison, and Kishore Yuva Sadan, should have a film
projector for showing films to the prisoners. organising Music
programmes which could consist of radio music, recorded music,
group singing, folk music, instrumental music and orchestra.10

Chapter 15

b) Remission - it is a concession, which can be granted to prisoners by


the State Government or by the Head of the Prison Department and
Superintendent of Prisons. This concession is subject to subsequent
withdrawal/forfeiture/revocation. The State Government reserves the
right to debar/withdraw any prisoner, or category of prisoners, from
the concession of remission. The scheme is intended to ensure prison
discipline and good conduct on the part of the prisoners, and to
encourage them to learning and better work culture, with the
prospect of their early release from prison as an incentive.11

c) Premature Release -The most important consideration for pre-mature


release of prisoners is that they have become harmless and useful
member of a civilised society. For the purpose of recommending the
pre-mature release of prisoners in each state a Sentence Review
Board should be set up to advice the government.12

d) Open and semi open institution-All Open and Semi-open institutions


are intended to put into practice the contemporary ideology of
reformation, correction and rehabilitation of convicted prisoners so
that they may lead a self-disciplined and cultured life after release.
These institutions provide the prisoners opportunities of employment
and living a life in the open. This restores dignity of the individual

10 Model prison manual 2003


11 Model prison manual 2003 chapter 16
12 Model prison manual 2003 chapter 18

110
and develops in him self-reliance, self- confidence and social
responsibility, which are necessary for his rehabilitation in the
society.13

e) The State Government shall establish separate prisons for women


offenders. Till separate prisons for women are established, both male
and female inmates can be confined in the same prison on the
condition that female offenders are to be kept in a strictly secluded
female enclosure.14

3.2.2.11 Approval of New Prison Manual 2016 by Union Home Minister

The Union Home Minister Shri Rajnath Singh has approved the new
Model Prison recently , Manual consisting of 32 chapters which aims at
bringing in basic uniformity in laws, rules and regulations governing the
administration of prisons and the management of prisoners all over the
country.15

The key issues in the new Manual include the following –

(i) Access to free legal services : Appointment of jail visiting


advocates; Setting up of a legal aid clinic in every prison;
legal literacy classes in prisons.

(ii) Additional provisions for women prisoners :


Comprehensive health screening for women prisoners,
including tests to determine presence of sexually transmitted
or blood-borne diseases, mental health concerns, existence of
drug dependency, etc.

(iii) Rights of prisoners sentenced to death: The Supreme Court,


in Shatrughan Chauhan v. Union of India and Others observed

13 Model prison manual 2003 Chapter 21


14 Model prison manual 2003 chapter 24
15 Source Press Information Bureau Government of India Ministry of Home Affairs21-January-
2016.

111
that the legal procedure adopted to deprive a person of his life
or liberty must be fair, just and reasonable and according to
protection under Article 21 of the Constitution of India
inheres in every person, even death-row prisoners, till the
very last breath of their lives. regular Physical and mental
health reports to certify that the prisoner is in a fit physical
and mental condition.

(iv) Modernisation & Prison computerisation : Additions have


been made to the Manual to encourage use of technology/
software systems where possible, including introduction of a
Personal Information System for recording information
relating to inmates.

(v) Focus on after-care services : The Manual recognises that it


is the States’s responsibility to devise and develop
mechanisms for rehabilitation of released convicts.

(vi) Provisions for children of women prisoners : issue


guidelines to ensure holistic development of children of
women prisoners inside prisons and pregnant prisoners.

(vii) Inspection of Prisons :A new chapter on inspection of


prisons has been incorporated as Chapter providing for

a) Informal inspections to be carried out by senior prison


officers, and

b) Formal inspection to be carried out by a designated


Inspector Officer.

3.2.2.12 Juvenile Justice (Care and Protection of Children) Act, 2000

Chapter IV of this act speaks of Rehabilitation and Social


Reintegration, related provisions of juveniles which are as follows

112
(A) Process of rehabilitation and social reintegration-

The rehabilitation and social reintegration of a child shall begin


during the stay of the child in a children's home or special home and social
reintegration of children shall be carried out alternatively by
Adoption, foster care, sponsorship, and by sending the child to an after-care
organization.16

(B) Adoption17

Adoption shall be resorted to for the rehabilitation of the children


who are orphan, abandoned or surrendered after ensuring safety of the child

The Court may allow a child to be given in adoption -

a) To a person irrespective of marital status; or

b) To parents to adopt a child of same sex irrespective of the number of


living biological sons or daughters; or

c) To childless couples.

(C) Foster care

The foster care may be used for temporary placement of those


infants who to be given for adoption. In foster care, the child may be placed
in another family for a short or extended period of time, depending upon the
circumstances where the child's own parent usually visit regularly and
eventually after the rehabilitation, where the children may return to their
own homes.18

(D) Sponsorship

The sponsorship programme may provide supplementary support to


families, to children's homes and to special homes to meet medical,

16 Section 40 juvenile justice act 2000


17 Section 41 juvenile justice act 2000
18 Section 42 juvenile justice act 2000

113
nutritional, educational and other needs of the children with a view to
improving their quality of life.19

(E) After-care organization.

According to this provision state government can make rules for the
establishment, maintenance, training etc. of various after care organization
who will take care of such juveniles for the purpose of rehabilitation and
personality improvement.20 Provided further that a juvenile or child over
seventeen years of age but less than eighteen years of age would stay in the
after-care organization till he attains the age of twenty years.

3.2.2.13 Law Commissions of India on Prison Reforms

After independence in India, there had been demands in Parliament


and outside for establishing a Central Law Commission to recommend
revision and updating of the inherited laws to serve the changing needs of
the country. The Government of India reacted favourably and established
the First Law Commission of Independent India in 1955 with the then
Attorney-General of India, Mr. M. C. Setalvad, as its Chairman. Since then
twenty one more Law Commissions have been appointed, each with a
three-year term and with different terms of reference. They have also
discussed and shown their concern for the prisoners in few of their reports.
Which are mainly -

Eighth Law Commission (Chairman Mr. Justice H. R. Khanna,


1977-1979)

This commission discussed the Congestion of under trial prisoners in


jails, showing great concern on overcrowding of prisons in India this
commission made valuable some suggestions to reduce this congestion
through regular review of such cases.

19 Section 43 juvenile justice act 2000


20 Section 43 juvenile justice act 2000

114
Ninth Law Commission (Chairman Mr. Justice P. V. Dixit 1979-1980)

This commission discussed the features of Identification of Prisoners


Act, 1920.

Twelfth Law Commission (Chairman Mr. Justice M.P. Thakkar


1988-1991)

This commission discussed situation of women prisoners in custody


.it suggested various safety measures for women concerning her health and
care.

Thirteenth Law Commission (Chairman Mr. Justice K. N. Singh


1991-1994)

This commission discussed reforms for custodial crimes and


suggested measures to stop crimes in the custody.

Sixteenth Law Commission (Chairman Mr. Justice B. P. Jeevan Reddy


2000-2001)

This commission issued many guidelines for reforms related to


prisoners, key issues dealt were Law Relating to Arrest, Article 20 (3) of the
Constitution of India and Right to Silence, Witness Identity Protection and
Witness Protection Programmes.

3.2.3 Prison Climate In Jail

Prisoners housed in jails have a right to life with dignity even while
in custody and it is the responsibility of the State to ensure protection of
human rights of persons in custody. It is duty of state to provide best
possible facilities as per laws for prisoners which are required for
maintaining their dignity; ensure protection of their human rights; reform
prisoners by involving them into the various spiritual and educational
activities; and also to engage them into the various vocational training and
works programmes to rehabilitate them after their release from prisons.

115
The National Human Rights Commission under21 had been entrusted
with an important/mandatory function of visiting the prisons under the
control of the State Governments where persons are detained or lodged for
the purpose of the treatment, reformation and the protection, so as to assess
the living conditions of prison inmates and suggest remedial measures.

Reforms in Tihar Jail for reviewing the social climate by Dr. kiran bedi

In her own words in an article by Dr. kiran bedi Inspector General of


Tihar jail “The jail warden led me through a dark winding passage. I was
feeling suffocation there by the humid stench of the open gutters that lined
the walls. Soon we approach to an opening where hundreds of prisoners, all
dressed in striped rags, stood looking at me in wonder. The warden
suddenly broke the silences by yelling some commands at the crowd.
Where there was space for around 2,500 prisoners, more than 10,000 were
herded together within the walls of Tihar jail. I thought, to myself or in
view, if there was a hell on earth, this was it.That very moment I realized
why I had been posted as the Inspector General, or IG, of the infamous
Tihar jail in Delhi. I began to visit the prisoners/in prison every day. I would
sit along with the larger groups and discuss their problems they facing in
the prison. I knew that apart from improving the hygiene and general
condition of the prison, I had also to keep the prisoners busy so that they
would not have any free time to get into the mischievous. I started by
introducing some simple but the effective routines for them such as walks
around the prison, sporting events and cultural events like singing and
acting.”

“I soon made a group of trusted officers who helped me out in this


research as well. A major problem that my team and I faced was that of the
religious groupings and enmity between them. To put an end to this danger
we began to celebrate the festivals from all the religions, like Rakhi, Holi,

21 section 12 (c) of the Protection of Human Rights Act, 1993

116
Ramzaan and Christmas. This helped the inmates to accept each other’s
religious practices better and even feel good about participating in them. On
my last day, as I went on my usual round of the prison, I saw what could
only be described as an ashram of Indian rishis. Hundreds of hardened
criminals, who had committed the worst of crimes, were sitting peacefully
in meditation”.
This was a piece of sample related to prison administration reforms
initiated in India by Dr. Bedi when she was posted in Tihar Jail in 1993-95.

A Report on Inadequate security measures and arrangements in


the Prisons in India –following are the major concerns related to prison
security in India-
a) The security staff posted at the gate to check vehicles entering the
prison complex carrying jail supplies are not equipped with any
instrument to detect explosives. This was being done only through
visual checking.
b) There is no communication system by way of intercoms or telephone
lines from ward to ward, ward to deodi (main entrance to jail) and
ward to chakkar (control room) which could seriously hamper
communication in case of any emergency situation requiring swift
response.

c) Names and details of visitors are entered manually in registers at the


main gate of the jail complex. This does not enable quick generation
of a full picture of those who have entered the jail premises and have
yet to leave at any point of time. Such a report would have to be
manually compiled which was time consuming.

d) The model Prison Manual prepared by the Union Ministry of Home


Affairs states that the ideal ratio between guarding staff i.e. warders
and prisoners should be 1:6. However, the ratio as per the sanctioned
strength was 1:15 to 1:19 while the ratio as per actual men in
position was 1:19 to 1:26.

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3.2.4 Socialism in Indian Prison

Every society has its own way of social control for which it frames
certain laws and also mentions the sanctions with them. Before the
punishments these sanctions are nothing. The first thing to mention in
relation to the definition of punishment is the ineffectiveness of the
definitional barriers aimed to show that one or other of the proposed
justifications of the punishments either logically include or logically
excluded by definition. Punishment has the following features:22

 It involves the deprivation of certain normally recognized rights, or


other measures considered unpleasant

 It is consequence of an offence

 It is applied against the author of the offence

 It s applied by an organ of the system that made the act an offence

The kinds of punishment given are surely influenced by the kind of


society one lives in. Though during the ancient period of history, the
punishment was more brutal as fear was taken as the prime instrument in
preventing the crime. But with the change in time and development of
human mind the punishment theories have become more tolerant to these
criminals. Debunking the firm theories on punishment, the modern society
is seen in loosening its hold on the criminals. The present scenario also
witnesses the opposition of capital punishment as inhuman, though it was a
major form of punishment for the criminals earlier.

For Social system in the Prison also refers prison climate. It is often
used synonymously with the term “prison environment”. The potential
importance of measuring prison climate is central for understanding the
both what happens in prison, and what may happen even on release. The

22 Prison Reforms In Indian Prison System Arnav Sood http://www.legalserviceindia.com/

118
statement, that the people are sent to the prison as punishment, not for
punishment which reflects the moral view that incarceration in and of itself
is sufficient punishment for an offence. However, such a position tends to
view prison as a kind of ‘black box’ which is punitive just by virtue of the
deprivation of the liberty, and as such it is relatively equivalent in its impact
across institutions for any given period of custodial sentences. However,
actual prison conditions will vary in terms of the physical fabric of the
institution, the firmness of the regime, and its social organizations, by
jurisdiction and the political perception of offenders, and by the perceptions
of those associated with the prison. Thus, it is reasonable to assume that
variation in prison climate may have an impact on offending and re-arrest
rates, and type of offences, after release. It can also influence the impact of
imprisonment on self-harm, violent behaviours, or drug use among other
variables, during incarceration. It could be potentially considered as a
penological equivalent to environmental criminology, where behaviours are
influenced by place-based factors. For the social climate of the prison may
be understood better by the following worldwide view.

3.2.5 Socialism with Women Prisoners in Prison

Indian society gives honourable status to the women. The position of


a woman in Vedas and the Upanishads age is that of a mother (mata) or
goddess (Devi). In the Manusmriti, the women are considered as the
precious being or be protected first by her father, then by her brother and
husband and finally by, her son. Presently women populations in India
represent 48.2 percent of the country’s population. Various developmental
programmes have been implemented by the Five Year Plans. In the year of
1985, a separate Department of Women and Child Development was set up
for improvement of their conditions in the prison. The major programmes
include a Support to Tanning-cum- Employment Programme (STEP) for
women, Mahila Kosh, Women’s Development Corporation, etc. In India

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there is also need of such programmes for solving the acute problems of the
women prisoners inside or outside the prisons.

Court also considers the rights of the women in country as well in


the Indian prison. The Supreme Court has made a ruling that a mother has
only the right to act as the guardian of her minor child. It has made “sexual
harassment with the women” at workplace as an offence. The Delhi High
Court also ruled that a pregnant woman, student cannot be barred from
taking examinations in any semester, due to attendance shortage on 13th
July, 2010. The court directed that the Delhi University and Bar Council of
India, to relax with the strict attendance rules for students who are unable to
attend classes due to pregnancy.

Even a number of other crimes are also being committed against the
women in the Indian society. Women are exploited in the society at the
different levels because of their unawareness about their legal rights.
Condition of the women prisoners, in Indian Prison, is also not good. They
are being devastated, victimized and even harassed in the prisons. Custodial
horror is a daily occurrence for women prisoners in our country.

What can a woman do when her ‘custodians’ become her violators?


The question is very intimidating and the frightening but this is actually
happening to women in India. There have been innumerable cases where
‘men-in-khaki’ as we usually refer to the police, have been caught outraging
the women prisoners’ modesty, inside and outside the jail. Women prisoners
in India are not just been raped but even murdered by policemen. Most of
the women in Indian jails belong to poor background. A woman of a sound
background whatever may be the ground, generally avails all the privileges
in the jail as the Rajya Sabha member K. Kanimozhi was sent to Tihar jail
on base of her involvement in high profile 2G spectrum case. She pleaded
in the court; she should get bail on the grounds that she is a woman and a
mother and on the base of this she was granted bail on November 28, 2011.

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In judicial custody for almost over six months, she was given a separate cell
in the women’s section, equipped with a bed, a television and a toilet as
well.

Moreover the Prison Act, which was represented in 1894, is too old.
It contains no provisions for welfare of the women prisoners. Deputy
Director, Institute of Correctional Administration, Chandigarh But what
about the women who having no privilege, who suffer a lot of problems in
the prison. Most of the women in India even all over the world do not even
know about the court procedure.

Dr. Upneet Lalli has mentioned that the Prisons Act, 1894 focuses
only on the prison security, offence and punishment and not on correction,
reformation and rehabilitation of prisoners. She felt that problems still
existed and changes were required in the areas of overcrowding, delay in
trial and legal aid, health and hygiene, prison visits-procedure, food-
hygiene, quality, service, poor living conditions, women and children-drugs,
mobiles, the security issues, lack of educational and vocational training,
lack of reformation and slow pace of the modernization.She stated, as about
4.1% of the prison population consisted of women, the problems of women
prisoners should also be given more care.23

3.2.6 Women and Prison

A prison is a State subject under List-II of the Seventh Schedule to


the Constitution of India. The Prisons Act 1894, on the basis of which the
present jail management and administration works in India. Many
committees and commissions appointed by both central and state
governments after Independence have improved to look after the conditions
of the prisons. The committee like A.N. Mulla, R.K. Kapoor Committee
(1986) and Justice Krishna Iyer Committee (1987) were constituted to bring
suggestions for improving the prison conditions and administration of the

23 6 http://nhrc.nic.in/Documents/Minutes%20&%20Reco%20Prison%20Reform.pdf

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country. The state Govt has its own rule and regulations to run the prison
system.

The National Human Rights Commission (NHRC) in Annual Report


(1993-94) has expressed its deep concern regarding the conditions of
overcrowding, lack of sanitation, poor medical care, and inadequate diet
facilities in most of the jails of the country. Again the United Nations
Standard Minimum Rules for the Treatment of Prisoners has declared
certain important rules that should be applicable to all the prison and
prisoners. It declares that there shall be no ‘discrimination on grounds of
race, colour, sex, language, religion, political or other opinion, national or
origin, property, birth or other status. There should be separate jails for the
man and women. The convicted and under trial should be kept in different
places. “Prisons, though for a short or longer period are places of living for
both accused as well as convicts. The reformation objective expects that it
should also be a place of learning and earning. To provide the physical,
material and the mental conditions of decent living to prisoners, it requires
recreating almost a miniature world inside the prisons. This is difficult if
not impossible.

3.3 INTERNATIONAL PROVISIONS

The issues related to prisoners are not only concerns of national but
it has touched the international scenario also. Since First World War the
issues of human rights began to rise at the international level, this journey
stated from universal declaration of human right which was initial
legislation concerning rights of prisoner as well.

3.3.1 Universal Declaration of Human Rights, 1948


The preamble of declaration reaffirmed their faith in fundamental
human rights, in the dignity and worth of the human person and in the equal
rights of men and women and have determined to promote social progress

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and better standards of life in larger freedom. The continuous human rights
disregard have resulted in barbarous acts which have outraged the
conscience of mankind, and the advent of a world in which human beings
shall enjoy freedom of speech and belief and freedom from fear and want
has been proclaimed as the highest aspiration of the common people. Main
provisions are-

 All human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood.24

 Everyone has the right to life, liberty and security of person.25

 No one shall be held in slavery or servitude; slavery and the slave


trade shall be prohibited in all their forms.26

 No one shall be subjected to torture or to cruel, inhuman or


degrading treatment or punishment.27

 All are equal before the law and are entitled without any
discrimination to equal protection of the law.28

 No one shall be subjected to arbitrary arrest, detention or exile.29

 Everyone is entitled in full equality to a fair and public hearing by an


independent and impartial tribunal, in the determination of his rights
and obligations and of any criminal charge against him.30

 Everyone charged with a penal offence has the right to be presumed


innocent until proved guilty according to law in a public trial at
which he has had all the guarantees necessary for his defence.31

24 Article 1 universal declaration of human rights


25 Article 3 universal declaration of human rights
26 Article 4 universal declaration of human rights
27 Article 5 universal declaration of human rights
28 Article 7 universal declaration of human rights
29 Article 9 universal declaration of human rights
30 Article 10 universal declaration of human rights
31 Article 11 universal declaration of human rights

123
 No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against
such interference or attacks.32

 Everyone has the right to seek and to enjoy in other countries asylum
from persecution. This right may not be invoked in the case of
prosecutions genuinely arising from non-political crimes or from
acts contrary to the purposes and principles of the United Nations.33

 Everyone is entitled to a social and international order in which the


rights and freedoms set forth in this Declaration can be fully
realized.34
3.3.2 The Third Geneva Convention 1949
The Third Geneva Convention, relative to the treatment of prisoners
of war, is one of the four treaties of the Geneva Conventions. The Geneva
Convention relative to the Treatment of Prisoners of War was first adopted
in 1929, but significantly revised and replaced by the Fourth Geneva
Convention of 1949. It defines humanitarian protections for prisoners of
war. There are 196 state parties to the Convention.
Article 4 defines prisoners of war to include:
1. Members of the armed forces of a Party to the conflict and members
of militias of such armed forces
2. Members of other militias and members of other volunteer corps,
including those of organised resistance movements , etc subject to
some conditions
Article 5 specifies that

Prisoners of war are protected from the time of their capture until
their final repatriation. It also specifies that when there is any doubt whether

32 Article 12 universal declaration of human rights


33 Article 14 universal declaration of human rights
34 Article 28 universal declaration of human rights

124
a combatant belongs to the categories mentioned in article, they should be
treated as such until their status has been determined by a competent
tribunal.

GENERAL SAFEGUARDS TO WAR PRISONERS

Article 12 states that prisoners of war are the responsibility of the


state, not the persons who capture them, and that they may not be
transferred to a state that is not party to the Convention.

Articles 13 to 16 state that prisoners of war must be treated


humanely without any adverse discrimination and that their medical needs
must be met.

This part is divided into several sections: Section 1 covers the


beginning of captivity (Articles 17–20). It dictates what information a
prisoner must give and interrogation methods that the detaining power may
use: "No physical or mental torture, nor any other form of coercion". It
dictates what private property a prisoner of war may keep and that the
prisoner of war must be evacuated from the combat zone as soon as
possible.

Section 2 covers the internment of prisoners of war and is broken


down into 8 chapters which cover:

1. General observations (Articles 21–24)

2. Quarters, food and clothing (Articles 25–28)

3. Hygiene and medical attention (Articles 29–32)

4. The treatment of enemy medical personnel and chaplains retained to


assist prisoners of war (Article 33)

5. Religious, intellectual and physical activities (Articles 34–38)

6. Discipline (Articles 39–42)

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7. Military rank (Articles 43–45)

8. Transfer of prisoners of war after their arrival in a camp (Articles


46–48)

Section 3 (Articles 49–57) covers the type of labour that a prisoner


of war may be compelled to do, taking such factors as rank, age, and sex
into consideration, and that which because it is unhealthy or dangerous can
only be done by prisoners of war who volunteer for such work. It goes into
details about such things as the accommodation, medical facilities, and that
even if the prisoner of war works for a private person the military authority
remains responsible for them. Rates of pay for work done are covered by
Article 62 in the next section.

Section 4 (Articles 58–68) covers the financial resources of


prisoners of war.

Section 5 (Articles 69–74) covers the relations of prisoners of war


with the exterior. This covers the frequency of which a prisoner of war can
send and receive post, including parcels. The Detaining power has the right
to censor all mail, but must do so as quickly as possible.

Section 6 covers the relations between prisoners of war and the


detaining authorities: it is broken down into two chapters.

1. Complaints of prisoners of war respecting the conditions of


captivity(Article 78) connecting link between the authorities of the
detaining power and the prisoners.

Prisoner of war representatives (Articles 79–81). Where there is no


senior officer available in a camp the section stipulates that "prisoners shall
freely elect by secret ballot, a representative, every six months". The
representative, whether the senior officer or an elected person, acts as a
connecting link between the prisoner and authority.

126
3.3.3 Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.35
For the purpose of this Declaration, torture means any act by which
severe pain or suffering, whether physical or mental, is intentionally
inflicted by or at the instigation of a public official on a person for such
purposes as obtaining from him or a third person information or confession,
Torture constitutes an aggravated and deliberate form of cruel, inhuman or
degrading treatment or punishment.36

 Any act of torture or other cruel, inhuman or degrading


treatment or punishment is an offence to human dignity and
shall be condemned as a denial of the purposes of the Charter
of the United Nations and as a violation of the human rights
and fundamental freedoms proclaimed in the Universal
Declaration of Human Rights.37

 No State may permit or tolerate torture or other cruel,


inhuman or degrading treatment or punishment. Exceptional
circumstances such as a state of war or a threat of war,
internal political instability or any other public emergency
may not be invoked as a justification of torture or other cruel,
inhuman or degrading treatment or punishment.38

 Each State shall, in accordance with the provisions of this


Declaration, take effective measures to prevent torture and
other cruel, inhuman or degrading treatment or punishment.39

 The training of law enforcement personnel and of other public


officials who may be responsible for persons deprived of their

35 Adopted by General Assembly resolution 3452 (XXX) of 9 December 1975


36 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment Article 1
37 Ibid Article 1
38 Ibid Article 3
39 Ibid Article 4

127
liberty shall ensure that full account is taken of the prohibition
against torture and other cruel, inhuman or degrading
treatment or punishment. of such persons.40

 Each State shall keep under systematic review interrogation


methods and practices as well as arrangements for the custody
and treatment of persons deprived of their liberty in its
territory, with a view to preventing any cases of torture or
other cruel, inhuman or degrading treatment or punishment.41

 The State concerned shall promptly proceed to an impartial


investigation whenever any complain is made by any person
relating to inhuman torture in imprisonment.42

 If an investigation under article 9 establishes that an act of


appears to have been committed, criminal proceedings shall
be instituted against the alleged offender or offenders in
accordance with national law.43

 Where it is proved that an act of torture or other cruel,


inhuman or degrading treatment or punishment has been
committed by or at the instigation of a public official, the
victim shall be afforded redress and compensation in
accordance with national law.44
3.3.4 The International Covenant on Civil and Political Rights 1976

(ICCPR) is a multilateral treaty adopted by the United Nations


General Assembly on 16 December 1966, and in force from 23 March. It
commits its parties to respect the civil and political rights of individuals,
including the right to life, freedom of religion, freedom of speech, freedom
of assembly, electoral rights and rights to due process and a fair trial.

40 Ibid Article 5
41 Ibid Article 6
42 Ibid Article 9
43 Ibid Article 10
44 Ibid Article 11

128
As of April 2014, the Covenant has 74 signatories and 168
parties.The Covenant follows the structure of the UDHR and ICESCR, with
a preamble and fifty-three articles, divided into six parts .main provisions
are:

(A) Rights to physical integrity

 Provision of the Covenant recognises the individual's “inherent right


to life" and requires it to be protected by law It is a "supreme right"
from which no derogation can be permitted, and must be interpreted
widely.45

 It prohibits torture and cruel, inhuman or degrading punishment. As


with Article 6, it cannot be derogated from under any
circumstances. The article is now interpreted to impose similar
obligations to those required by the United Nations Convention
Against Torture, including not just prohibition of torture, but active
measures to prevent its use and a prohibition on refoulement.46

(B) Liberty and security of person

 It recognises the rights to liberty and security of the person. It


prohibits arbitrary arrest and detention, requires any deprivation of
liberty to be according to law, and obliges parties to allow those
deprived of their liberty to challenge their imprisonment through the
courts. These provisions apply not just to those imprisoned as part of
the criminal process, but also to those detained due to mental illness,
drug addiction, or for educational or immigration purposes.47

 It requires anyone deprived of liberty to be treated with dignity and


humanity. This applies not just to prisoners, but also to those

45 The International Covenant on Civil and Political Rights 1976 article 6


46 Ibid article 7
47 Ibid article 9

129
detained for immigration purposes or psychiatric care. The right
complements the Article 7 prohibition on torture and cruel, inhuman
or degrading treatment. The article also imposes specific obligations
around criminal justice, requiring prisoners in pretrial detention to be
separated from convicted prisoners, and children to be separated
from adults. It requires prisons to be focused on reform and
rehabilitation rather than punishment .48

(C) Procedural fairness and rights of the accused

 It recognizes and protects a right to justice and a fair trial and


establishes the ground rules: everyone must be equal before the
courts, and any hearing must take place in open court before a
competent, independent and impartial tribunal, with any judgment or
ruling made public.49

 The rest of the article imposes specific and detailed obligations


around the process of criminal trials in order to protect the rights of
the accused and the right to a fair trial. It establishes the Presumption
of innocence and forbids double jeopardy. It requires that those
convicted of a crime be allowed to appeal to a higher tribunal, and
requires victims of a Miscarriage of justice to be compensated. It
establishes rights to a speedy trial, to counsel, against self-
incrimination, and for the accused to be present and call and examine
witnesses.

 It prohibits prosecutions under Ex post facto law and the imposition


of retrospective criminal penalties, and requires the imposition of the
lesser penalty where criminal sentences have changed between the
offence and conviction.50

48 Ibid article 10
49 Ibid article 14
50 Ibid article 15

130
 Requires states to recognize everyone as a person before the law.51

3.3.5 Standard Minimum Rules for the Treatment of Prisoners

Adopted by the First United Nations Congress on the Prevention of


Crime and the Treatment of Offenders, held at Geneva in 1955, and
approved by the Economic and Social Council by its resolutions.52

Purpose of these rules was to set out what is generally accepted as


being good principle and practice in the treatment of prisoners and the
management of institutions relating thereto. In the knowledge that they
represent, as a whole, the minimum conditions which are accepted as
suitable by the United Nations.

Accordingly the following are the important provision.

1. Register- In every place where persons are imprisoned there shall


be kept a bound registration book with numbered pages in which
shall be entered in respect of each prisoner received: ( a )
Information concerning his identity, ( b ) The reasons for his
commitment and the authority thereof, ( c ) The day and hour of his
admission and release.53

2. Separation of categories - The different categories of prisoners


shall be kept in separate institutions or parts of institutions taking
account of their sex, age, criminal record, the legal reason for their
detention and the necessities of their treatment. 54

3. Accommodation-the place where they are detained shall be so


constructed that entrance of fresh air and natural light is not
interrupted so that they can work and read.55

51 Ibid article 16
52 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977
53 Standard Minimum Rules for the Treatment of Prisoners,1977 rule 2
54 Ibid rule 8
55 Ibid rule 9

131
4. Personal hygiene -Prisoners shall be required to keep their persons
clean, and to this end they shall be provided with water and with
such toilet articles as are necessary for health and cleanliness.56

5. In order that prisoners may maintain a good appearance compatible


with their self-respect, facilities shall be provided for the proper
care of the hair and beard, and men shall be enabled to shave
regularly.57

6. Clothing and bedding--every prisoner who is not allowed to wear


his own clothing shall be provided with an outfit of clothing
suitable for the climate and adequate to keep him in good health.
Such clothing shall in no manner be degrading or humiliating.58

7. Food-every prisoner shall be provided by the administration at the


usual hours with food of nutritional value adequate for health and
strength, of wholesome quality and well prepared and served.
Drinking water shall be available to every prisoner whenever he
needs it.59

8. Exercise and sport- every prisoner who is not employed in outdoor


work shall have at least one hour of suitable exercise in the open
air daily if the weather permits.60

9. Medical services -at every institution there shall be available the


services of at least one qualified medical officer who should have
some knowledge of psychiatry. The medical services should be
organized in close relationship to the general health administration
of the community or nation.61

56 Ibid rule 15
57 Ibid rule 16
58 Ibid rule 17
59 Ibid rule 20
60 Ibid rule 21
61 Ibid rule 22

132
10. Rules regarding foreign nationals.-Prisoners who are foreign
nationals shall be allowed reasonable facilities to communicate
with the diplomatic and consular representatives of the State to
which they belong.62

11. News paper facility- Prisoners shall be kept informed regularly of


the more important items of news by the reading of newspapers,
periodicals or special institutional publications, by hearing wireless
transmissions, by lectures or by any similar means as authorized or
controlled by the administration.63

12. Every institution shall have a library for the use of all categories of
prisoners, adequately stocked with both recreational and
instructional books, and prisoners shall be encouraged to make full
use of it.64

13. Religion If the institution contains a sufficient number of prisoners


of the same religion, a qualified representative of that religion shall
be appointed.65

14. Information to near and dear-Upon the death or serious illness of,
or serious injury to a prisoner, or his removal to an institution for
the treatment of mental affections, his near relative will be
informed by authorities.66

15. Inspection. There shall be a regular inspection of penal institutions


and services by qualified and experienced inspectors appointed by
a competent authority.67

16. All appropriate means shall be used, including religious care in the
countries where this is possible, education, vocational guidance

62 Ibid rule 38
63 Ibid rule 39
64 Ibid rule 40
65 Ibid rule 41
66 Ibid rule 44
67 Ibid rule 55

133
and training, social casework, employment counseling, physical
development and strengthening of moral character, in accordance
with the individual needs of each prisoner, taking account of his
social and criminal history, his physical and mental capacities.68

17. All prisoners under sentence shall be required to work, subject to


their physical and mental fitness as determined by the medical
officer. Sufficient work of a useful nature shall be provided to keep
prisoners actively employed for a normal working day. 69

18. There shall be a system of equitable remuneration of the work of


prisoners.70

19. Provision shall be made for the further education of all prisoners
capable of pursuing there education further.71

20. Recreational and cultural activities shall be provided in all


institutions for the benefit of the mental and physical health of
prisoners72.

3.3.6 Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment73

JURISDICTION AND SCOPE OF THESE BODIES OF


PRINCIPLES: many principles have been incorporated in these bodies of
principles relating to persons under detention or imprisonment. Few
important provisions are:

Principle 1

All persons under any form of detention or imprisonment shall be


treated in a humane manner and with respect for the inherent dignity of the
human person.

68 Ibid rule 66
69 Ibid rule 71
70 Ibid rule 76
71 Ibid rule 77.
72 Ibid rule 78
73 G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988).

134
Principle 2

Arrest, detention or imprisonment shall only be carried out strictly in


accordance with the provisions of the law and by competent officials or
persons authorized for that purpose.

Principle 5

Measures applied under the law and designed solely to protect the
rights and special status of women, especially pregnant women and nursing
mothers, children and juveniles, aged, sick or handicapped persons shall not
be deemed to be discriminatory. The need for, and the application of, such
measures shall always be subject to review by a judicial or other authority.

Principle 6

No person under any form of detention or imprisonment shall be


subjected to torture or to cruel, inhuman or degrading treatment or
punishment.

Principle 8

Persons in detention shall be subject to treatment appropriate to their


unconvicted status. Accordingly, they shall, whenever possible, be kept
separate from imprisoned persons.

Principle 10

Anyone who is arrested shall be informed at the time of his arrest of


the reason for his arrest and shall be promptly informed of any charges
against him.

Principle 11

A person shall not be kept in detention without being given an


effective opportunity to be heard promptly by a judicial or other authority. A
detained person shall have the right to defend himself or to be assisted by
counsel as prescribed by law. detained person and his counsel, if any, shall

135
receive prompt and full communication of any order of detention, together
with the reasons therefore.

Principle 12

There shall be duly recorded:

a) The reasons for the arrest;

b) The time of the arrest and the taking of the arrested person
to a place of custody as well as that of his first appearance
before a judicial or other authority;

c) The identity of the law enforcement officials concerned;

d) Precise information concerning the place of custody.

Principle 14

A person who does not adequately understand or speak the language


used by the authorities responsible for his arrest, detention or imprisonment
is entitled to receive promptly in a language which he understands the
information relating to his arrest and .

Principle 16

If a detained or imprisoned person is a foreigner, he shall also be


promptly informed of his right to communicate by appropriate means with a
consular post or the diplomatic mission of the State of which he is a
national 3. If a detained or imprisoned person is a juvenile or is incapable of
understanding his entitlement, Special attention shall be given to notifying
parents or guardians.

Principle 18

A detained or imprisoned person shall be entitled to communicate


and consult with his legal counsel. Interviews between a detained or
imprisoned person and his legal counsel may be within sight, but not within
the hearing, of a law enforcement official.

136
Principle 19

A detained or imprisoned person shall have the right to be visited by


and to correspond with, in particular, members of his family and shall be
given adequate opportunity to communicate with the outside world

Principle 21

It shall be prohibited to take undue advantage of the situation of a


detained or imprisoned person for the purpose of compelling him to
confess, to incriminate himself otherwise or to testify against any other
person.

Principle 22

No detained or imprisoned person shall, even with his consent, be


subjected to any medical or scientific experimentation which may be
detrimental to his health.

Principle 30

A detained or imprisoned person shall have the right to be heard


before disciplinary action is taken. He shall have the right to bring such
action to higher authorities for review.

Principle 33

A detained or imprisoned person or his counsel shall have the right


to make a request or complaint regarding his treatment, in particular in case
of torture or other cruel, inhuman or degrading treatment, to the authorities.
Every request or complaint shall be promptly dealt with and replied to
without undue delay..

Principle 34

Enquiry in cases of death in the custody shall be made by the


appropriate judicial or other authority.

137
Principle 36

A detained person suspected of or charged with a criminal offence


shall be presumed innocent and shall be treated as such until proved guilty
according to law in a public trial at which he has had all the guarantees
necessary for his defence.

Principle 38

A person detained on a criminal charge shall be entitled to trial


within a reasonable time or to release pending trial.

3.3.7 European Convention for the Prevention of Torture and


Inhuman or Degrading Treatment or Punishment74

This convention ensured that the protection of persons deprived of


their liberty against torture and inhuman or degrading treatment or
punishment could be strengthened by non-judicial means of a preventive
character based on visits,

Article 1- This Article establishes the body which is to carry out the
visits, and the purpose of the visits. In this way it describes the principal
functions of the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment.

Article 2 -By this provision Parties to the Convention agree to


permit visits to any place within their jurisdiction where one or more
persons are deprived of their liberty by a public authority. It is immaterial
whether the deprivation is based on a formal decision or not Visits may take
place in any circumstances. The Convention applies not only in peace time,
but also during war or any other public emergency

Article 8 - By ratifying the Convention, the States are under an


obligation to permit visits to any place within their jurisdiction. The

74 European Treaty Series - No. 126. which entered into force on 1 March 2002.

138
purpose of the present provision is to specify the modalities by which a visit
is initiated.

Article 10 deals with the report which the Committee has to draw
up following each visit. This will be based on the facts found during the
visit and will take account of any observations which the State concerned
might wish to make. The report will also contain the recommendations the
Committee considers necessary, the object being in every case to strengthen
the protection of persons deprived of their liberty.

3.3.8 Optional Protocol to the Convention against Torture and other


Cruel, Inhuman or Degrading Treatment or Punishment75

This protocol ensures the primary liability of each state for


protecting the human rights of prisoners and defending their torture and
other cruel ,inhuman or degrading treatments inside prison. The objective of
this Protocol is to establish a system of regular visits undertaken by
independent international and national bodies to places where people are
deprived of their liberty, in order to prevent abuse of prisoners.

The leading provisions of this protocol are:-

 A Subcommittee on Prevention of Torture and Other Cruel, Inhuman


or Degrading Treatment or Punishment of the Committee against
Torture, hereinafter referred to as the Subcommittee on Prevention
shall be established and shall carry out the functions laid down in the
present Protocol and also The Subcommittee on Prevention shall
carry out its work within the framework of the Charter of the United
Nations and shall be guided by the purposes and principles thereof,
as well as the norms of the United Nations concerning the treatment
of people deprived of their liberty. Equally, the Subcommittee on

75 Adopted on 18 December 2002 at the fifty-seventh session of the General Assembly of the
United Nations by resolution A/RES/57/199 entered into force on 22 June 2006

139
Prevention shall be guided by the principles of confidentiality,
impartiality, non-selectivity, universality and objectivity.76

 Each State Party shall set up, designate or maintain at the domestic
level one or several visiting bodies for the prevention of torture and
other cruel, inhuman or degrading treatment or punishment.77

3.3.9 Convention against Torture and Other Cruel, Inhuman or


Degrading Treatment or Punishment 78

During the decade of 1980 -1990 many international discussions


were held between various nations, United Nations and other international
agencies. This convention was outcome of those discussions. Few important
provisions under this are:-

That no exceptional circumstances whatsoever, whether a state of


war or a threat of war, internal political instability or any other public
emergency, may taken as justification of torture. For the purpose of
determining whether there are such grounds, the competent authority shall
take all points for consideration concerned of a consistent pattern of gross,
flagrant or mass violations of human rights.79

That each State Party shall ensure that education and information
regarding the prohibition against torture are fully included in the training of
law enforcement personnel, civil or military, medical personnel, public
officials etc. and other persons who may be involved in the custody,
interrogation or treatment of any individual subjected to any form of arrest,
detention or imprisonment.80

76 Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment,article 2
77 Ibid article 3
78 Adopted and opened for signature, ratification and accession by General Assembly
resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with
article 27 (1)
79 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
article 2 and 3
80 Ibid article 10

140
That each State Party shall keep under systematic review
interrogation rules, instructions, methods and practices as well as
arrangements for the custody and treatment of persons subjected to any
form of arrest, detention or imprisonment in any territory under its
jurisdiction, with a view to preventing any cases of torture. 81

That each State Party shall ensure that any individual who alleges he
has been subjected to torture in any territory under its jurisdiction has the
right to complain to, and to have his case promptly and impartially
examined by, its competent authorities.82

That each State Party shall ensure in its legal system that the victim
of an act of torture obtains redress and has an enforceable right to fair and
adequate compensation, including the means for as full rehabilitation as
possible.83

3.3.10 Basic Principles for the Treatment of Prisoners

Adopted and proclaimed by General Assembly resolution 45/111 of


14 December 1990

The aim of making these principles was to develop humanization


approach towards the treatment of prisoners and for safeguarding their
human rights throughout the globe. The principles are equally applied
impartially. These can be summarized below;

 Prisoners around world shall be treated with the respect due to their
inherent dignity and value as human beings.

 Discrimination on the grounds of race, colour, sex, language,


religion, political or other opinion, national or social origin, property,
birth or other status was discarded.

81 Ibid article 11
82 Ibid article 13
83 Ibid article 14

141
 Religious belief of prisoner should be regarded.

 The responsibility of prisons for the custody of prisoners and for the
protection of society against crime shall be discharged in keeping
with a State's other social obligations.

 All prisoners shall contain all the rights which are enriched in the all
international treaties, conventions, to which the state which has
detained him is party.

 All prisoners shall have the right to take part in cultural activities and
education aimed at the full development of the human personality.

 Each state should try to abolish the solitary confinement and state
who have already done this must be supported or encouraged.

 State should try to encourage remunerated employment for prisoners


which will facilitate their reintegration society as well as help their
family’s financial needs.

 Prisoners shall have access to the health services available in the


country without any discrimination.

 With the participation and help of the community and social


institutions, and with due regard to the interests of victims,
favourable conditions shall be created for the reintegration of the ex-
prisoner into society under the best possible conditions.

3.3.11 European Convention on Human Rights signed on 4 November


1950 Effective :3 September 1953

After universal declaration of human rights in 1948, Many


European nation also demanded a protocol for them related to human right
protection which resulted in the above convention. Various provisions
containing protection to prisoners are:

142
ARTICLE 2
Right to life- Everyone’s right to life shall be protected by law. No
one shall be deprived of his life intentionally save in the execution of a
sentence of a court following his conviction of a crime for which this
penalty is provided by law
ARTICLE 3
Prohibition of torture- No one shall be subjected to torture or to
inhuman or degrading treatment or punishment
ARTICLE 5
Right to liberty and security- Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty except in rare
situations.
ARTICLE 6
Right to a fair trial- In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law
ARTICLE 7

No punishment without law-. No one shall be held guilty of any


criminal offence on account of any act or omission which did not constitute
a criminal offence under national or international law at the time when it
was committed.

3.3.12 United Nations Rules for the Protection of Juveniles Deprived


of their Liberty 84

When united nations shocked at the conditions and circumstances


under which juveniles are being deprived of their liberty worldwide, and are
highly vulnerable to abuse, victimization and the violation of their rights

84 The General Assembly, 45/113, 14 December 1990

143
they decided to make rules regarding their safety and development. Here
are some important rules:

 Age of juvenile was considered to be 18 years.

 Any deprivation of the liberty of a juvenile should be a considered as


last resort nd for the minimum necessary period and in exceptional
cases only.

 The Rules under this treaty should be applied impartially, without


discrimination of any

 Type as to race, colour, sex, age, language, religion, nationality,


political or other opinion , cultural beliefs or practices, property,
birth or family status, ethnic or social origin, and disability.

 Juveniles deprived of their liberty shall not be denied any civil,


economic, political, social or cultural rights to which they are
entitled under national or international provisions

 Principal of innocence till the conclusion of trial shall be applicable


in case of juveniles also without any discrimination.

 In every place where juveniles are detained, a complete and secure


record of the physical and mental health problems, including drug
and alcohol abuse shall be maintained.

 Juveniles deprived of their liberty have the right to facilities and


Services which should meet all the requirements of health and
human dignity.

 Every juvenile has right to compulsory education equivalent to his


school status which can prepare him for returning to society.

 Diplomas or educational certificates awarded to juveniles while in


Detention should not contain any sign which indicates that he was in
prison.

144
 Every juvenile should have the right to receive vocational training in
prison so that he can prepare himself for his future employment.

 All protective national and international standards applicable to child


labour and young workers should apply to juveniles deprived of their
liberty.

 Every juvenile should have the right to a suitable amount of time for
daily free exercise while he is under detention.

 Every juvenile should be allowed to satisfy the needs of his or her


religious and spiritual life.

 Parents and relatives has right to be informed in case of death,


injury or illness of juvenile

3.3.13 United Nations Standard Minimum Rules for Non-custodial


Measures (The Tokyo Rules)85
These Standard Minimum Rules provide a set of basic principles to
promote the use of noncustodial measures, as well as minimum safeguards
for persons subject to imprisonment. These are intended to promote greater
community involvement in the management of criminal justice, specifically
in the treatment of offenders, as well as to promote among offenders a sense
of responsibility towards society. These Rules shall be implemented taking
into account the political, economic, social and cultural conditions of each
country and the aims and objectives of its criminal justice system. rules can
be summarized as following

 Member States shall make efforts to ensure a proper equilibrium


between the rights of individual offenders, the rights of victims, and
the concern of society for crime prevention.

 Each State shall develop non-custodial measures within their legal


systems to provide other options, thus reducing the use of
imprisonment, and to review criminal justice policies, taking into

85 Adopted by General Assembly resolution 45/110 of 14 December 1990

145
account the observance of human rights and requirements of social
justice and the rehabilitation needs of the offender.

 The states should develop non custodial measures and make timely
evolution of such measures.

 Consideration shall be given to dealing with offenders in the


community avoiding as far as possible resort to formal proceedings
or trial by a court, in accordance with legal safeguards and the rule
of law. Non-custodial measures should be used in accordance with
the principle of minimum intervention. The use of non-custodial
measures should be part of the movement towards depenalization
and decriminalization.

3.3.14 Resolution 2010/16 United Nations Rules for the Treatment of


Women Prisoners and Non-custodial Measures for Women
Offenders (the Bangkok Rules)

These rules do not in any way replace the Standard Minimum


Rules for the Treatment of Prisoners and the Tokyo Rules discussed above.
Therefore, all provisions contained in those two sets of rules continue to
apply to all prisoners and offenders without discrimination.

This resolution contains Basic rules covering the general


management of institutions, is applicable to all categories of women
deprived of their liberty, including criminal or civil, untried or convicted
women prisoners.

Following are the noticable rules under this resolution:

Rule 2 Newly arrived women prisoners shall be provided with


facilities to contact their relatives; access to legal advice; information about
prison rules and regulations.

Rule 4 Women prisoners shall be allocated, to the extent possible,


to prisons close to their home or place of social rehabilitation, taking
account of their caretaking responsibilities.

146
Rule 6 The health screening of women prisoners shall include
comprehensive screening to determine primary health care needs, and also
shall determine: (a) The presence of sexually transmitted diseases or blood-
borne diseases; and, depending on risk factors, women prisoners may also
be offered testing for HIV, with pre- and post-test counseling.

Rule 7 If the existence of sexual abuse or other forms of violence


before or during detention is diagnosed, the woman prisoner shall be
informed of her right to seek recourse from judicial authorities.

Rule 8 The right of women prisoners to medical confidentiality,


including specifically the right not to share information and not to undergo
screening in relation to their reproductive health history, shall be respected
at all times.

Rule 9 If the woman prisoner is accompanied by a child, that child


shall also undergo health screening, preferably by a child health specialist,
to determine any treatment and medical needs. Suitable health care, at least
equivalent to that in the community, shall be provided

Rule 12 Individualized, gender-sensitive, trauma-informed and


comprehensive mental health care and rehabilitation programmes shall be
made available for women prisoners with mental health care needs in prison
or in non-custodial settings.

Rule 22 Punishment by close confinement or disciplinary


segregation shall not be applied to pregnant women, women with infants
and breastfeeding mothers in prison.

Rule 26 Women prisoners‟ contact with their families, including


their children, their children’s guardians and legal representatives shall be
encouraged and facilitated by all reasonable means.

147
Rule 29 Capacity-building for staff employed in women‟s prisons
shall enable them to address the special social reintegration requirements of
women prisoners and manage safe and rehabilitative facilities.

Rule 33 All staff assigned to work with women prisoners shall


receive training relating to the gender-specific needs and human rights of
women prisoners.

Rule 43 Prison authorities shall encourage and, where possible,


also facilitate visits to women prisoners as an important prerequisite to
ensuring their mental wellbeing and social reintegration.

Rule 48 Pregnant or breastfeeding women prisoners shall receive


advice on their health and diet under a programme to be drawn up and
monitored by qualified health practitioner.

3.4 WORLDWIDE VIEWS OF THE SOCIAL CLIMATE IN


THE PRISON

Measurement issues: From a more immediate measurement


perspective, we can ask if there is any commonality, and to what extent,
between the salient environmental characteristics identified in two similar
western prison systems. Cross-system comparisons, which have the
advantages of making possible comparisons between larger systems and
providing information on the impact of system and cultural-level variables,
may also provide an opportunity for carrying out larger combined studies
across several centers.

In order to understand the role of prison climate, if any, on prison


and post-release behavior, we need to measure prison climate reliably,
validly and comprehensively. A first step is to understand the salient
dimensions of the prison climate and determine their universality in similar
cultures in India. The US Federal Bureau of Prisons (BoP) has developed a
measure of prison social climate, the Prison Social Climate Survey (PSC:

148
Saylor, pers.com) for both staff and inmates, are comparable. In the UK,
Liebling with Arnold (2004) has also developed a measure of prison climate
to measure inmate perceptions of their environment in England and Wales.

Previous research on prison climate:86 notes that traditional prison


settings affect prisoners in different ways – and that to support
rehabilitation, prison environments should provide external controls to
guide inmates’ behavior as well as environmental attributes that may
support the internal changes and personal growths. Lutze’s idea that prison
environments should assist inmates to identify their deficits and provide
programs to provide assistance in rehabilitation, however, cannot be tested
without being able to measure prison climates and understanding their
interactions with inmate Crises in correctional environments may be
associated with issues of prison climate and specifically prison dynamics. A
number of variables that may contribute to the violence, what are associated
with the physical conditions in prisons. Suedfeld Suedfeld P (1980).
Environmental effects on violent behavior in prisons. International Journal
of Offender Therapy and Comparative Criminology 24:107-116. (1980)
classes these as including spatial intrusions (having personal space invaded
by others, especially unpredictably), monotony (both mental and physical),
and external controls (having the environment under the control of someone
else). In addition to being physical environmental variables it ensures that
all of these variables can also be reflected in cognitive and social aspects of
prison climate.

Prison environment inventory: More recently, Wright (1985) had


developed the Prison Environment Inventory, using 80 items, that was
based on Toch’s (1977) research. Toch had interviewed 900 inmates for
identifying the shared environmental concerns that were common to all the

86 Lutze (1998) Lutze FH (1998). Are shock incarceration programs more rehabilitative than
traditional prisons? A survey of inmates. Justice Quarterly 15:547-563.

149
correctional setting. Inmates were asked about their perceptions of the
difficulties that arose in the prison environments, and how they managed
them as well. Content analyses of these qualitative data identified the eight
themes, which Toch had labeled the privacy, safety, structure, support,
emotional feedback, social stimulation, activity, and freedom. He noted that
these are all dimensions which are the global concerns for inmates as well
as universally perceived. He confirms the difficulty, however, that all these
variables are seen through the lens of the inmate’s personal perception: they
imply a standard of comparison (safe in relation to what – other
institutions? The outside of India or in world?) that could be a vital source
of random error. Wright. 87

Reintegration of prisoners in society : international concern

European countries are increasingly in search of alternatives to


confinement, as they realized more resources for assimilation of deviant are
available in an open society rather than inside of the closed walls. This has
not happened so far in our country as governments across the ideological
spectrum are illiberal and the society is unsympathetic to rights of the
incarcerated.

The complete prison formation is based on seclusion and separatism


Prisons are always unattractive places. The incarceration life is really
pathetic. The imprisonment is one of the most painful parts of the prisoner’s
life. Life in prison is difficult to understand. The prison life reflects its
harshness and pain. The prison culture restricts the freedom of the prisoners
and stores them in isolation. Prisons issued uniforms also play a large
component in destroying personal identity, and crashing individual feelings.

Prisoner re-integration poses significant challenges for policy


makers, law enforcement and other criminal justice officials, and the

87 Wright KN (1985). Developing the prison environment inventory. Journal of Research in


Crime and Delinquency 22:257-277

150
community members; but just as imposing a challenge is the issue of jail
officer entry and integration into a patrol assignment within the urban
community. The urban county jail system harbors some of the harshest
conditions found inside the custodial institutions in the United States. These
harsh conditions are characterized by overcrowding, widespread cases of
inmate mental illness, volatility resulting from the racial and ethnic
separations, an increasingly low socio-economic and poorly educated
inmate population, limited and under-funded inmate educational and
vocational rehabilitation programs, and epidemic proportion health issues.
The daily exposure to these as well as other conditions can have the same
debilitating affect and influence on the jail officer’ s social and professional
development and behavior as it has on the incarcerated inmates.

It is common in most large urban cities that operate county jail


systems to find jail officers initially assigned to perform jail guard duty
upon graduation from the police academy. After completing their jail guard
duty, which can range from several months to several years, the jail officer
becomes eligible to transfer from the initial custodial assignment to the
more esteemed police assignment of street patrol. However, the transition
from guard duty in the custodial environment to the police assignment of
the street patrol can pose problems for the jail officer who has developed
aberrant and professionally dysfunctional behavioral traits, while working
inside the county jail. Arguably, it is these aberrant and dysfunctional
tendencies, displayed by the former jail officer during the encounters with
the citizens in their patrol assignment, which underscore the fragile state of
urban police and community relations

As successful prisoner re-integration programs require pre-custodial


release preparation that includes vocational as well as professional
counseling, the issue of jail officer patrol integration too should be
considered as important and post-custodial preparation that includes

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counseling which focuses on social and professional reconditioning to the
mainstream social and the professional thoughts, values, and behaviors
should become a component of the patrol transitional training program for
jail officers. If law enforcement officials are sincerely interested in
improving urban police and community relations they can ill afford to
assume that jail officers, after doing time in a county jail environment
require no re-adjustment period prior to their release from the custody
assignment, and transiting into street patrol assignment which is responsible
for enforcing laws and making life and death decisions.

***

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Chapter – 4

PRISON SYSTEM-
A COMPARATIVE STUDY
CHAPTER -4

PRISON SYSTEM – A COMPARATIVE STUDY

4.1 INTRODUCTION
India is the world's largest democracy in world. It has free elections, a
multi-party parliamentary system, a diverse and free press, an independent
judiciary and the country abounds with the non-governmental organizations
that take pride in their independence and that helps to make up a lively civil
society. But if check and balance equilibrium of various institutions is
disturbed that means something has gone wrong with the system. It appears
from review of both prison as well as police system in country. In some
major cities of the country and probably elsewhere as well, anyone who is
arrested faces a far greater torture, or worse at the hands of police, in
comparison to some other countries which has better protections for civil
liberties.
Though we had some inkling in advance that we would find extensive
police abuse of the detainees, we were not prepared for what we discovered
about the prisons and jails to which detainees are sent after the police are
done with them. They would be bad, if only because the life is hard for the
most of the Indians outside the prisons. It stands to a reason; therefore, if
incarceration is meant to punish then life inside the prisons should be worse.
What took us by surprise, however, is the manner in which it is worse for the
great majorities of prisoners and, more surprising, the fact that the
imprisonment is somewhat less harsh than we had expected for some
prisoners.
Though prisons are supposed to be leveling institutions in which the
variables that affect the conditions of confinement which are expected to be
the criminal records of their prisoners and their behavior in prison, other
factors are there that may play a part in many countries.

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4.2 PRISON SYSTEM IN BRITISH AGE

In India, the early prisons were only places of detention where an


offender was detained until trial & judgment and the execution of the latter.
In the year of 1784 the British Parliament empowered the East India
Company to rule India and from then some attempts have been made to
introduce reformations in the administration of Law and Justice in our
country. At that time there were only 143 civil jails, 75 criminal jails and
with less number as 68 were mixed jails. In fact these jails were an extension
Mughal rule which were managed by the personnel of the East India
Company in their efforts to maintain peace and establish their trades. As Dr.
BK Bhattacharya has very aptly observed, “the British believed only in
keeping in custody the prisoners as economically as possible and with the
maximum profit to the Government”. It was quite natural that the early
British Administration had formulated its Prison Policy with a view to
serving it colonial interests alone.

In 1835 Lord Macauly drew the attention of Legislative Council of


India to the degraded conditions of the Indian prisons and proposed to
appoint a committee for the purpose of collecting the information as to the
state of Indian Prisons and preparing an improved plan of prison discipline
and to suggest such reforms as to make the place (the jail at Alipore) a model
for other prisons. The council accepted Macauly’s proposal and appointed
‘The Prison Discipline Committee’ with Honorable H Shakespeare as
President and Lord Macauly as one of the members. In the year of 1838,
committee put report. The Enquiry Committee was a landmark in history
penal administration in our country. Indian Prisoners were given different
treatments, the nature and character of the institution assumed to be a
changed meaning, though it was punitive basically in our country.

The committee directed for the first time attention of the English
rulers of India to various defects of the administration of Indian Jails. It

154
criticized the corruption of subordinate establishment, the laxity of discipline
and the system of employing prisoners in harsh labour . The committee
deliberately rejected all such reforming influences a moral and religious
teaching, education or any system of rewards for good conduct, it through
the whole weight of its authority in favor of increased rigour of treatment,
and proposed to engage all convicts in some dull, monotonous wear some
and interesting task in that quicker relief could be secured by working harder
for a time. The purposes the prisons according this committee was to make
“thegoal a place of dread” through a ruthless process of “severe privation,
really hard work, solitude, silence and separation”

In pursuance of the recommendations of the committee, A Central


Prison was constructed at Agra in 1846. This was the first Central Prison in
India and was followed by the construction of central prisons at Bareilly and
Allahabad in 1848, at Lahore in 1852, at Madras in 1857, at Bombay in
1864, at Alipore in 1864 at Banaras and Fatehgarh in 1864 and at Lucknow
1867.29 This was the positive contribution in the spear of Prison Reforms in
this country, along with its advocacy of the theory of retribution in prison
administration.

In 1844 the first inspector General of Prisons was appointed in the


North Western Province on an experimental basis for two years and was
extended further, in 1850 the Government of India Made it a permanent post
and suggested that each province should appoint an Inspector General of
Prisons. In 1862 the North Western Province employed civil Surgeons as
Superintendents of District Jails.

In 1870 the Government of India passed Prisons Act. It lay down that
there should be a Superintendent, a Medical Officer, a Jailor and such
subordinate officers as the local government thinks necessary. This act
categorically specified the duties of the prison officials. It also made

155
provision for the separation of prisoners of male from females, of children
offenders from adults, of criminal from civil offenders.

In 1877 and 1889 third and fourth enquiry committees were instituted.
Based on the recommendations of the committees the Prison Act of 1894
was passed. By this the jails appeared to have achieved considerable material
progress during this period.

In 1919 the British Government appointed a Joint Commission of


officials to investigate the whole subject of jail management and to suggest
improvement. The commission recommended the establishment of separate
institutions like Borstal School for juvenile delinquents. The under trials
were to be kept separate from the convicted and the adult convicts were to be
classified as habitual and casuals. The committee report also took serious
views on transportation of convicts to Andaman Islands and recommended
for the discontinuation of the practice. Solitary confinement had been
terminated remain so. All convicts below 29 years of age were to be cared
under adult education programmes and libraries were to be established in all
Jails. Quality of food to be improved and prisoners were to be provided with
two sets of clothing. The commission underlined the idea of reform of
inmates as ultimate objective of imprisonment and rehabilitation of prisoners
as social necessity.

Unfortunately the prison reform movement received a sudden setback


due to the constitutional changes brought about by the Government of India
Act of 1919. The Act transferred the jail department from the control of the
Government of India to that of Provincial Government.

Hence the prison system as it operates today (2016) in our country is a


legacy of the British rule. It was the simple creation of the colonial rulers
over our indigenous penal system with the prime motive of making
imprisonment a threat to wrong doers.

156
With the dawn of independence, prison reform was given increased
attention. Indian leaders were ready with a blue print for the industrial
development of the country, but the jail reform could not escape their eyes as
all of them passed their prime life in the jails. Prison administration is a state
subject under the constitution of India. The organization, headed by the
Inspector General of Prisons consists of central prisons, sub jails or district
jails. Different states have adopted different patterns of jail administration.
The central Jails are intended for long term prisoners who are convicted in
courts.

India has ratified the International Covenant on Civil and Political


Rights (ICCPR) in the year of 1979 which is the most important international
treaty on the protection of the rights of prisoners. The International Covenant
on Economic, Social and Cultural Rights (ICESR) also states that the
prisoners should have a right to the highest attainable standard of physical
and mental health in the prisons.

4.3 IMPORTANT COVENANTS RELATED TO PRISONERS

Some of the important national and international covenants for the


protection of the rights of the prisoners (worldwide) are as follows:

 Arusha Declaration on Good Prison Practice27 February 1999,


Arusha, Tanzania

 Basic Principles for the Treatment of Prisoners45/111. Basic


Principles for the Treatment of Prisoners, The General Assembly,1990

 Basic Principles on the use of Force and Firearms by Law


Enforcement Officials Adopted by the Eighth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders,
Havana, Cuba,
27 August to 7 September 1990

157
 Basic principles on the use of restorative justice programs in criminal
matters2002/12 Basic principles on the use of restorative justice
programmes in criminal matters The Economic and Social Council,

 Body of Principles for the Protection of All Persons under Any Form
of Detention and Imprisonment General Assembly Resolution 43/173
(9 December 1988).

 Code of Conduct for Law Enforcement Officials Adopted by General


Assembly resolution 34/169 of 17 December 1979.

 Convention on the Elimination of All Forms of Discrimination


Against Women adopted in 1979 by the UN General Assembly

 Convention on the Elimination of All Forms of Racial Discrimination


General Assembly resolution 2106 (XX) of 21 December 1965

 International Covenant on Civil and Political Rights United Nations


General Assembly on 16 December 1966,

 International Covenant on Economic, Social and Cultural Rights16


December 1966,

 Kampala Declaration on Prison Conditions in AfricaON PRISON


CONDITIONS IN AFRICA,1996

 Safeguards guaranteeing protection of the rights of those facing the


death penalty The Economic and Social Council, 23 July 1996

 The Convention against Torture and Other Cruel, Inhuman or


Degrading Treatment or PunishmentGeneral Assembly resolution
39/46 of 10 December 1984

 UN Declaration on the Protection of All Persons from Enforced


Disappearance 47/133,General Assembly, 1992

 UN Recommendations on Life Imprisonment 1994

158
 United Nations Rules for the Treatment of Women Prisoners and Non-
custodial Measures for Women Offenders (Bangkok Rules) The
Economic and Social Council 2010/16

 United Nations Standard Minimum Rules for Non-Custodial


Measures (Tokyo Rules) Adopted by General Assembly resolution
45/110 of 14 December 1990
 United Nations Standard Minimum Rules for the Treatment of
Prisoners nomic and Social Council by its resolutions 663 C (XXIV)
of 31 July 1957 and 2076 (LXII) of 13 May 1977 Universal
Declaration of Human Rights 1948

In India several steps have been initiated for the reformation of the
prisoners in jail, but the most important of all is the empowerments and the
rehabilitations of the prisoners by the tool of education. Numerous prisoners
have been taking the courses via IGNOU and other correspondence methods
in the jails which have helped them earned degree in education as well being
in jail. Tihar jail, has taken an initiative to help the prisoners to outreach with
their degrees by organizing placement programmes in the jail premises for
those prisoners who have shown their good conduct.

4.4 PRISON DISCIPLINE IN INDIA


The prison follows the following principles that would be most
appraisal of the prison system:

 Prison discipline is the prime mover of a dynamic and interactive


human mechanism called the correctional process, which an offender
undergoes to get reformed into a law-abiding and the dignified
citizen, who can become self-reliant after his/ her release and deserve
a rightful place in the mainstream of the society.

 An offender, after release, always faces odd treatment and rejection


from the society at large. On account of such rejection and dislike, the
gap between an offender and the society becomes wider. This sends

159
the offender back into the world of crime, and from there again to
custody, making a vicious circle. This is how crime recurs.
Correctional work aims to bridge the gulf between the offender and
the mainstream society.

 The aim of Prison system should not be retributive but should be


reformative, not repressive but curative.

 Prison discipline is the collective responsibility of all the prison


personnel who are actually supposed to usher in reformation to the
offender.

 There should be proper security in Prison discipline so that the safe


custody and well being of the prisoners is ensured.
4.4.1 Prison offences
Following acts of the prisoners shall constitute prison offences:
(i) Challenging the security of the prison in any way, by any
mischievous act and shall include damaging in any way with
prison walls, building, bars, locks and keys, lights, destroying
stationary or with any other thing used for security measure .
(ii) Doing any illegal act which creates unwanted apprehensions in the
minds of other prisoners.

(iii) Doing any act with intention to cause any disease, illness, injury or
infirmity.
(iv) Concealing the facts from prison authorities regarding commission
of any offence.
(v) Breaking peace in prison or breaking any rule related to prison
discipline.
(vi) Abatement or instigation, attempt directly or indirectly, the
commission of any prison offence.
(vii) Failing to assist in the maintenance of prison discipline.

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(viii) spoiling the prison environment by smoking.
(ix) Failing to give assistance to a prison official when called upon.

(x) Making false, dishonest, and groundless complaints against prison


officials.
(xi) Committing nuisance or mischief of any sort.

(xii) Quarrelling with other prisoners.


(xiii) Assaulting, and causing injuries to others.

(xiv) Escaping or endeavor to escape from prison


(xv) Participating in a riot or mutiny, abetting another prisoner to do
the same.
(xvi) Dealing with the contraband articles within prison.
(xvii) Tampering with registers, identity cards, records or documents.
(xviii) Failing to report to prison officials about contraband articles.
(xix) Stealing/damaging/destroying/disfiguring/misappropriatingany
government property or another prisoner’s articles and property.
(xx) Failing to report at once any loss, breakage or injury, which the
prisoner may accidentally have caused, to prison property or
implements.

(xxi) Refusing to eat food or going on a hunger-strike and instigating


others also

(xxii) Willfully or negligently destroying or spoiling food, or throwing it


away without orders.
(xxiii) Willfully disabling himself so that he can escape from labour.

(xxiv) Manufacturing and preparing any article without the knowledge or


permission of a prison officer.
(xxv) Being idled, careless or negligent at work, refusing to work,
malingering, disturbing other prisoners at work, or in barracks.

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(xxvi) Wilfully hurting other sentiments, religious feelings, beliefs and
faiths.
(xxvii) Converting, or attempting to convert, a prisoner to a different
religious faith.

4.4.2 Punishments for prison offences

The head of prison administrator may initiate action against defaulters


and award punishments, provided that no solitary confinement, no rigorous
labour, no physical assault, or denial of privileges and amenities, or no
transfer to other prisons with penal consequences, shall be imposed on a
prisoner without judicial appraisal of the Sessions Judge. Basically Two
types of punishments are given to the prisoners. These are following:

1. Minor Punishments:

a) Formal Warning

b) Loss of Privileges given to the prisoners in a detention for a


maximum one month

c) Forfeiture of wages up to earnings of three days once in a


month
d) Forfeiture of earned remission up to ten days.

e) Fatigue drill/work for a period not exceeding one hour a day up


to seven days subject to the prisoner’s physical fitness being
certified by the Medical Officer.

2. Major Punishments:

a) Loss of privileges given to the prisoners in detention from one


month to three months

b) Forfeiture of wages up to earnings of four to seven days in a


month

c) Transfer to greater security prisons and consequent loss of


privileges

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d) Not counting period of leave towards sentence in case of
breach of conditions of leave

e) Forfeiture of earned remission beyond 10 days

f) Postponement of privileges of leave for a period not exceeding


one year starting from the date of the inmate’s next eligibility
for release on leave

g) Solitary confinement up to 30 days

4.5 PRISONERS ISSUES IN INDIA

A prison, jail or correctional facility may be called a place where in


the individuals are physically confined or detained and usually deprived of a
range of personal freedom. These institutions are an integral part of criminal
justice system of our country. There are many types of prisons in our country
such as those exclusively for adults, children, female, convicted prisoners,
under-trial detainees and separate facilities for mentally ill offenders.
Imprisonments or incarceration are the legal punishments that can be
imposed by the state for the commission of a crime or disobeying its rule.
The objects of the imprisonment varies from country to country and may be
different like

a. Punitive

b. Deterrent,

c. Rehabilitative

d. Reformative.

In general, these objectives have developed over time as shown in the


accompanying figure. The primary purpose and justification of the
imprisonment is to protect the society against crime and retribution. As per
the current thinking, the punitive methods of treatment of prisoners alone are
neither be relevant nor be desirable to achieve the goal of reformation and

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rehabilitation of prison inmates. Now, Reformation and Rehabilitation has
become main concern and the prison system is now moving to function in
protective manner. Human right approach and various legislations have
facilitated a change in the approaches of correctional systems in Indian
society also. The State is under an obligation for protecting the human rights
of its citizens as well as to protect the society at large, and it is authorized to
do so. To protect the citizens from any possible abuses, they are given certain
basic privileges, recognized by the Constitution of India as Rights.
Development of these protections gives prisoners also to approach judiciary
for protection of their rights

FIGURE 4.1: PRISON FRAMEWORK

Human Rights of prisoners: National and International Instruments

In India, the idea of rights of the prisoners was long suppressed under
the colonial rule and has only recently emerged in public discourse. The

164
Constitution of India confers that the numbers of fundamental rights upon
citizens. It is, therefore, a high time that in the light of the observations that
was made by the Supreme Court of India, the rights and duties of prisoners is
clearly spelt out. The Indian State is also a signatory to various international
instruments of human rights, like the Universal Declaration of Human Rights
which states that:

“No one shall be subject to torture or cruel, inhuman or degrading


treatment of punishment” (UDHR, 1948)

Also important is the United Nations Covenant on Civil and Political


Rights which states in part:

“All persons deprived of their liberty shall be treated with humanity


and with respect for the inherent dignity of the human person”. (UNICCPR,
1966)

There are many United Nations codified standards of the treatments


for the prisoners across different economic, social and cultural contexts in a
number of documents. These concern themselves with ensuring those basic
minimum conditions in prisons which are necessary for the maintenance of
the human dignity and facilitate the development of prisoners into the better
human beings.

4.5.1 Human rights of prisoners in India

(A) Right to Human Dignity

i. Right to be treated as a human being and as a person; this right has


been stressed and recommended by the Supreme Court of India which
has categorically declared that prisoners shall not be treated as
nonpersons;

ii. Right to integrity of the body; immunity from use of repression and
personal abuse, whether by custodial staff or by prisoners;

165
iii. Right to integrity of the mind; immunity from aggression whether by
staff or by prisoners;

iv. Right to non-deprivation of the fundamental rights guaranteed by the


Constitution of India, except in accordance with law prescribing
conditions of confinement.

(B) Right to Basic Minimum Needs

Right to fulfillment of basic minimum needs such as adequate diet,


health, medical care and treatment, access to clean and adequate drinking
water, access to clean and hygienic conditions of living accommodation,
sanitations and personal hygiene, adequate clothing, bedding and other
equipment for the prisoners.

(C) Right to Communication

i. Right to communication with the outside world;

ii. Right to periodic interviews; and

iii. Right to receive the information about the outside world through the
communication media.

(D) Right to Access to Law

i. Right to effective access to information and all legal provisions


regulating conditions of detention;

ii. Right to consult or to be defended by a legal practioner of prisoner’s


choice;

iii. Right to access to agencies, such as State Legal Aid Boards or


similar organizations providing legal services;

iv. Right to be informed on admission about legal rights to appeal,


revision, review either in respect of conviction or sentence;

166
v. Right to receive all court documents necessary for preferring an
appeal or revision or review of sentence or conviction;

vi. Right to effective presentation of individual complaints and


grievances during confinement in prison to the appropriate
authorities;

vii. Right to communicate with the prison administration, appropriate


Government and the judicial authorities, as a case may be, for
redressal of violation for any or all of prisoners’ rights and for
redressal of grievances.

(E) Right against Arbitrary Prison Punishment

Right to entitlement in case of disciplinary violation (i) to have


precise information as to the nature of violation of Prisons Act and Rules, (ii)
to be heard in defense, (iii) to communicate for the decision of disciplinary
proceedings, and (iv) to appeal as provided in rules made under the Act.

Any violation of this right may attract the provisions of Article 14 of


the Constitutions, which enshrines right to equality and equal protection of
law. In addition, the question of cruelty towards the prisoners is also dealt
with, specifically by the Prison Act, 1894 and the Criminal Procedure Code
(CRPC). Any excess committed on the prisoner by the police authorities not
only attracts the attention of the legislature but also the judiciary. The Indian
judiciary particularly the Supreme Court, in the recently, has been very
active against violations of the human rights of the prisoners.

The Human Rights of the prisoners have been expressed under the
Indian Constitution as well as Indian laws governing prisons. The Supreme
Court and High Court rulings have played a crucial and vital role in
enumerating the rights of the prisoners.

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(F)Right to Fair Procedure

When we trace the origin of the prisoner's right in India, the embryo
we can find in the celebrated decision of G:K.Gopalan v. State of Madras.
One of the main contentions raised by the petitioner was that the phrase
“procedure established by law” as contained in article 21 of the Constitution
includes a ‘fair and reasonable’ procedure and not a mere semblance of
procedure prescribed by the State for the deprivation of life or personal
liberty of individuals. The majority view in Gopalan was that when a person
is totally deprived of his personal liberty under the procedure established by
the law, the fundamental rights including the right to freedom of the
movements are not 0 available. It was held

"There cannot be any such thing as absolute or uncontrolled liberty


wholly freed from restraint, for that would lead to anarchy and disorder”

4.5.2 Rights of Women Prisoners in india

Women prisoners have many rights. The female prisoners cannot be


debarred from their basic human rights and freedoms guaranteed by the
Constitution of India. The Supreme Court in the case of Sunil Batra vs Delhi
Administration held that whether inside of prison or outside, a person should
not be deprived at all of his guaranteed freedom save by methods ‘right, just
and fair’. The court process casts the convict into the prison system and the
deprivation of her freedom is not a blind penitentiary affliction but a blighted
institutionalization geared to a social good.

The court has the continuing responsibilities to ensure that the


constitutional purposes of the deprivation are not defeated by the prison
administrations. There are the numbers of rights of women prisoners in the
prison which are provided by the different committees appointed for prison
reforms and also by United Nations. In Prison Act 1894, it is stated that these
rights must be incorporated. The different types of the human rights,

168
constitutional rights and statutory rights of women prisoners are discussed as
under:

1. The search and examination of the female prisoners in the prison


should be carried out by Matron under the general or special order of
the Medical Officers;

2. The female prisoners have been provided a right to live separate from
the male prisoners. Section 27(1) of the Prison Act 1894 provides that
in a prison containing female as well as male prisoners, the females
shall be imprisoned in separate buildings or separate parts of the same
building, in such a manner as to prevent their seeing or conversing or
holding any intercourse with the male prisoners; this right is also been
provided by Rule 8(a) of Standard Minimum Rules for the Treatment
of Prisoners.

3. About the maintenance of certain prisoners from private sources,


section 31 of the Prison Act 1894 provides that a civil prisoner or an
unconvicted criminal prisoner shall be permitted to maintain himself,
and to purchase, or receive from private sources at proper hours, food,
clothing, bedding or the other necessaries, but subject to examination
and to such rules as may be approved by the Inspector General.

4. About supply of clothing and bedding to civil and unconvicted


criminal prisoners section 33 (1) of the Prison Act, 1894 provides that
every civil and unconvicted criminal prisoner unable to provide
himself with the sufficient clothing and bedding shall be supplied by
the Superintendent with such clothing and bedding as may be
necessary.

5. All the prisoners should have the basic human rights such as hygienic
food, shelter, medical facilities and facilities of reading and writing.
They must be treated with dignity in the custody and cannot be

169
isolated in a separate cell, except on the medical grounds or if he/she
has proven to be dangerous for the other prisoners. It is the human
rights of a pregnant lady to get the full facilities (medical and
personal) at the time of delivery. Women prisoners who are pregnant
cannot be provided the full facilities in the prison during the
pregnancy. Hence at the time of the delivery they can be released on
bail.

6. The Standard Minimum Rules for the Treatment of Prisoners provide


under-Rule 53(1) that in an institution for both men and women, the
part of the institution set aside for women should be under the
authority of a responsible women officer who must have the custody
of the keys of all that part of the institution. (2) No male members of
the jail staff can enter the part of the institution set aside for women
unless accompanied by a woman officer. (3) Women prisoners should
be attended and supervised only by the women officers. This does not,
however, preclude male members of the staff, particularly doctors and
teachers, from carrying out their professional duties in the institutions
or parts of the institutions set aside for women in the prisons.

In the Prisons, the women’s jail has been managed by the women staff
at both the functional and supervisory levels. No male staff member was
allowed entry beyond the-main `deodhi'. However, male dispatch riders were
allowed in the morning to collect the food packets from the kitchen for
distribution among both male and female UTPs in the court lock-ups.

4.6 HUMAN RIGHTS ISSUES

Never before in history, was the prison administration in India


subjected to such a critical review by the higher judiciary as in the last few
decades. Discarding its erstwhile “hands off” doctrine towards prisons, the
Supreme Court of India came strongly in favor of judicial scrutiny and

170
intervention whenever the rights of prisoners in detention or custody were
found to have been infringed upon. In Sunil Batra v. Delhi Administration
and Others (1978), Mr. Justice V. R. Krishna Iyer pronounced: “prisoners
have enforceable liberties, devalued may be but not demonetized; and under
the basic scheme, Prison Power must bow before the Judge Power, if
fundamental freedoms are in jeopardy”. Again in Sunil Batra v. Delhi
Administration (1979), the Court asked and affirmed: “Are prisoners’
persons? Yes of course. To answer in the negative is to convict the nation and
the Constitution of dehumanization and to repudiate the world legal order,
which now recognizes the rights of the prisoners in the International
Covenant on Prisoners’ Rights (ICPR) to which our country has signed
assent”.
In a number of judgments on various aspects of prison administration,
the Supreme Court of India has laid down three broad principles

i. A person in the prison does not become a non-person.


ii. A person in the prison is made to get all the human rights within the
limitations of imprisonment.
iii. There are no any justifications in aggravating the suffering already
inherent in the process of incarceration.
“The prison authority has duty to give effect to the court sentence. To
give effect to the sentence means that it is illegal to exceed it and so it
follows that prison official who goes beyond mere imprisonment or
deprivation of locomotion and assaults or otherwise compels the doing of
those things not covered by the sentence acts in violation of Article 19.
Punishments of adamant imprisonment oblige the inmates to do hard labor,
not harsh labor. ‘Hard labour in section 53, Prisons Act to receive a humane
meaning. So a vindictive officer victimizing the prisoner by forcing on him
particularly harsh and degrading jobs that violates the law’s mandate. The
prisoner cannot demand soft jobs but may reasonably be assigned congenial
jobs”.

171
4.6.1 Prison scenario: mentally ill prisoners
The Human rights and mental illness are nearly related. Persons with
mental illness are the most vulnerable for the violation of their rights in the
society. They are stigmatized, isolated and discriminated. A mentally ill
prisoner has double disadvantages. Even when quality psychiatric care is
provided, the inmate/patient still has been doubly stigmatized—as both a
mentally ill person and a criminal (Lamb, 2009). He/She may not be able to
defend his/her case. Many times, a person with the mental illness may not
receive a proper treatment and remains in the custody for years. This may be
an account of being unfit to stand trial, lack of support, or because the family
of the prisoners is able but unwilling to bail out the person because of the
illness.
Human rights violation itself can have a severe impact on a person’s
mental health and lead to a vicious cycle as it is also shown in the
accompanying figure 4.2 (Johnson et al., 2010; Priebe et al., 2010). 1

FIGURE 4.2: HUMAN RIGHTS VIOLATION

1 Experience of human rights violations and subsequent mentaldisorders-a study following the
war in the Balkans. Soc Sci Med 2010;71:2170-2177

172
According to Penrose's law, outlined on the basis of a comparative
study of European statistics, there is an inverse relationship between the
numbers of psychiatric beds and prison populations within a country.
Deinstitutionalization or closing down psychiatric hospitals has in fact led to
trans-institutionalization (Kalapos, 2009).2

FIGURE 4.3: DE-INSTITUITIONALIZATION AND TRANS-


INSTITUTIONALIZATION

Persons with mental illness are likely to remain in the prisons for
unnecessarily long periods of time because of their illnesses go unnoticed,
undiagnosed and untreated (Priebe et al., 2005). Even if they are brought to
the notice of the court, he/she may not fit to stand for trial. Non availability

2 Kalapos MP. Penrose's law: reality or fiction? Mental health system and the size of prison
population - international overview. Orv Hetil. 2009;150:1321-1330

173
of timely treatment and continuous care further aggravates the conditions.
The family in many of such instances is unwilling to house or care for such
persons and there is no any place in the community for their rehabilitations.

4.7 MANAGEMENT OF THE PRISON SYSTEM IN INDIA

4.7.1 Organizational structure of prison system in India

In India, the Prisons are a State subject under Entry 4 of the State
Subjects List of the Seventh Schedule to the Constitution of India. the
management and administration of the prisons comes under control of the
State Governments. Thus, the respective governments while making Prison
Manuals or laws in our country should consider all of the provided
guidelines. The overall legislative accountability of prison is headed by
minister in charge of home department who is assisted by administrative
officers like secretary additional secretary etc. taken from the cadre of the
Indian Administrative Service. The Inspector-General of prisons is the
executive head of the prison department in India and is entrusted with the
duty to implement the policy made by the minister. He is also authorized to
keep general control over jail department, and for inspection of all jails each
year. He has the duty to manage matters related to jail personnel like their
transfer, promotions and also for making and sanctioning the plans for prison
department.

The IGP keeps connection of the department with the state legislature
as well as with the other departments of the state. He keeps vigilance on the
subordinate personnel like superintendents, jailors, warders and has to
implement various reformation processes through them. So The Inspector-
General should be a man of high integrity and dedication. The success of the
prison system in any state depends upon the implementation of the rules by
the prison staff, because they have to directly interact with the inmates. The
state prison is basically divided into two types, Central prisons and district

174
jails/subsidiary jails. Along with it they are further categorized into
reformatory institutions for young offenders and woman reformative centers,
open air camps etc.

The organizational structure of a central prison generally consists of


one Superintendent, one Deputy Superintendent, two or three jailers, five to
seven Deputy Jailers, five to seven Assistant jailers, one Matron, Head
Warders and warders depending upon their sanctioned strength, one or two
Female Warder, one medical officer and a nurse,. The establishment of the
district jails or subsidiary jails ordinarily consists of one Superintendent, one
jailer, one to two Deputy Jailers, one to three Assistant jailers, warders
according to the strength, one Female Warder, one Assistant Medical officer
and one nurse. The Superintendent is the head of the jail establishment and
subject to the orders of the Inspector General of Prison manages the prison in
every matter of discipline and control. The superintendent is assisted by a
Deputy Superintendent in the central prison and a jailer in the district
jail/subsidiary jail. They are the main executing officers of the prison and
control the whole system according to the orders of the Superintendent.
Officer under the Deputy-Superintendent in the central prison is jailer who
supervises and controls the work of the clerical establishment. Jailors are
appointed by the state government either through promotion or direct
recruitment by way of written examination. He is bound to reside inside the
jail unless he gets written permission from superintendent to reside outside.
The jailer is responsible for the safe custody of the records to be kept under
him3or the commitment warrants and all other documents confined in his
care, and for the money and other articles taken from prisoners.

Prisons, as a correctional institute setup for the Criminal Justice


Administration throughout the world, plays a key role in justice delivery
system. They are meant, both for the incarceration of convicts, as well as for

3 Section 12 prison act 1894,

175
providing custodial care to the under trials. In our country the prisons
constitute the largest area of penal administration. There are around 1,300
prisons of various categories, which house over three times the population of
the offenders and in Indian context; the State’s functions are divided into
Central and State subjects. Prisons are essentially State subject. Thus, the
Management and the Administration of prisons are controlled by state.

But, presently institution of prison is in critical state. They are marked


by subhuman material conditions, overcrowding, and lack of sensitivity,
weak motivation and mass corruption amongst the prison functionaries. The
main reasons for such a state of affairs are: (1) prison has become political
and social entity, (2)absence of transparency in the prison system in (3) lack
of training and refresher courses for the prison authorities and staff.

4.7.2 Growth of the Modern Prison System

The Present prison system in India is a British legacy. It was an


indigenous creation of the colonial rules over our indigenous penal system
with the prime motive of making imprisonment “a threat to offenders”.To
look into the procedure regarding the internal management of prisons with a
view to uphold the rights of the prisoners and the development of prison staff
in terms of custody, security institutional discipline, institutional
programmes for the specialized treatment of women, adolescents, children
and mentally sick person, staff recruitment and training and to suggest
measures with a view to develop prisons as correctional institutions prison
manual has been enacted which throws light upon issues related to prison.

4.7.3 Prison Architecture

The security management should be such that the Deputy


Superintendent, Assistant Superintendent and Guards will be responsible to
ensure that no ladders, planks, bamboos and the ropes, which are likely to
facilitate escape, are left lying about. If such materials are to be taken inside

176
for use, these would be properly escorted and will be sent out of the prison
after use. Every Warder in charge of a workshop will be responsible to see
that all such articles are properly kept secured and put away when work
ceases and give a certificate to that effect in the lock-up register. Prisons will
be run on the base of the dynamic security. Dynamic security depends on the
use of alternative methods for which interaction with prisoners will be a
prerequisite to make them aware of what is going on and to ensure them that
they are being kept in safe and humane environment. It is not only the means
of preventing escape, but also maintaining constructive relations with
prisoners. The staff will also be made to understand that the security not
merely implies guarding the wall and the fences, but also action engendering
a sense of protection and mutual trust. Thus, these are certain trends to be
followed by the prison officials for the management of security of prisons
and custody of prisoners.

4.7.4 Armed Sentry

 The watchtowers at the main gate will be guarded by armed sentries


and other portions of the prison will be guarded by warders without
arms. The warder establishment that would supply the sentries and
guards to the internal and external posts. All of the guards and sentries
would work or do their duties in the shift rotations.

 Armed sentries perform duties in two hourly shifts. It is the duty of a


sentry, both in day and night, to challenge all the unknown or
suspicious persons approaching to his beat, forbidding them to
approach nearer unless they can satisfactorily account for themselves
or, at night, give the password. No any convicts would be permitted to
approach within 5 meters of any sentry. It is the duty of a sentry to
resist all attempts to break into or out of the prison or of any part of it
and to prevent the escapes or illicit communication with prisoners. At
night every sentry report to the Patrolling Officer if anything

177
suspicious or unusual comes to his considerations. He would give the
required assurance that all is well each time of the Patrolling Officer
passes by.

 The sentry, on his duty, will carry the required arms & ammunition,
which will later be handed over to the relieving sentry.

4.7.5 Guarding Establishment

Moreover, it has been suggested that there will be guarding


establishment in every prison, responsible for the guarding of the prisoners,
prison premises, gate and carrying out any other duties, which will be
assigned to them. The guarding establishment includes the Warders
performing their duties in rotation. In all the Central and District Prisons,
there will be a reserve guard consisting of 8-20 Warders, who have
undergone commando training, with use of modern weapons. Maintenance
of the duty roster is must by the prisons to keep a check on the duties
assigned to the Guards or the Warders. Moreover, another important fact for
the security of the inmates is that there are various categories of prisoners
like there are some, who are very ferocious ones and others may be weak,
thus, it is suggested that the violent prisoners should be kept separately and
they should not be kept with the weak ones to avoid any kind of fights in the
prison

4.7.6 History Tickets of the prisoners

Every prisoner shall, immediately on his reception into prison, be


provided with a History

Ticket which shall be maintained, in the manner hereinafter provided,


throughout the period during which such prisoner remains in confinement
Maintenance of the proper History Tickets for the prisoners should also be
done and it shall go with the prisoner wherever he is transferred from one
group to another. Another crucial aspect under custodial and security

178
management is the issue of custody of arms and it is necessary for the
officers concerned to make sure that the arms are never left within the reach
of prisoners. All necessary arms when not in use should be kept in the
guardroom.

4.7.7 Security & Custodial Management

Most of the inmates prefer a quiet, clean and orderly prison where
they can serve their time in the safe environment. A proper security can
ensure inmate safety and provide staff with good working conditions. Thus,
this is required for both the inmates and the officers on duty. Secure custody
of prisoners is the primary responsibility of the prisons. Further, the prison
custody implies certain restrictions on the basic human rights of prisoners as
basic human being under the process of incarceration that prisoners are
required to undergo. There are certain norms in respect of security and
custody in prisons, which say–

 That the security measures should be adopted in accordance with the


specific requirements of each prison.

 Secure walls, the building gates, barracks, hospital areas, cells and the
other places, daily inspection on the same and proper maintenance of
prison building and premises.

 An arrangement of good lighting inside and around the prison.

 A system of comprehensive searches of all incoming and outgoing


prisoners. Daily searches and periodical surprise searches of all prison
sections on equipments.

 Entire system of counting the prisoners.

 A system of custody and control inspection of locks. Keys, handcuffs


and other security equipment, maintenance and service of all security
equipments.

179
 Watch towers, wherever necessary, to watch inside and outside of the
prison, to be constructed and searchlights and binoculars made
available.

 Untrained personnel not to be posted inside of the prison, the prison


premises, under any circumstances for guarding purposes.

 A system of thorough search for unearthing explosive and narcotic


substances among prisoners.

4.7.8 Maintenance of the Prisoners

Certain guidelines are provided for the maintenance of prisoners by


the Model Prison Manual, which includes directives regarding food,
clothing, hygiene, education and recreational facilities .it also includes grant
of proper and adequate wages to the prisoners in accordance with the work
undertaken. Prisoners should be provided the proper nutritious diet with
special care to pregnant and nursing women. In case of R.D. Upadhyay v.
State of Andhra Pradesh (A.P.) & Ors.,the Supreme Court gave certain
directives regarding women prisoners and their children. Some of them
were:–

 A child of the women prisoner shall not be treated as an under trial


convict while in jail with his mother. Such a child is entitled to food,
shelter, medical care, clothing, and education as a matter of right.

 Women prisoners with children should not be kept in the sub jails,
which are not equipped to keep small children.

 The stay of children in crowded barracks amidst women convicts,


under trial and offenders relating to all types of the crimes, including
violent crimes, is most harmful for the development of their
personality. Therefore the children deserve to be separated from such
environments on the basis of priority.

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4.7.8.1 Food ration

Every prisoner shall have three meals a day according to the scales
prescribed. These shall be:

i. A light meal in the morning before the work starts;

ii. A midday meal after the work; and

iii. An evening meal, before prisoners are locked up for the night.

The quantities of ration to be issued for each meal should be as


prescribed by the Inspector General. The articles of diet provided for the
midday and evening meals may be suitably divided between the two meals
as well.

Varieties in the diet may be introduced by issuing different kinds of


the pulses, vegetables and antiscorbutics on different days of the week or for
different meals. The Superintendent may lay down the menu for different
days of a week.On the occasion of the festivals, as specified by the State
governments, extra items of the dietary items may be given to every
prisoner.also who observe religious fasts may receive extra articles of food,
or may have the whole or a part of their meal at a place and time of day, as
may be allowed by the orders of the state government for proper observance
of fasts by them.

4.7.8.2 Scales of diet

The scale of diet for prisoners may be prescribed by the State


Government. Due consideration is to be given to the principles mentioned
above, to the classified needs, habits and modes of living of the prisoners in
the jails and the climatic conditions of the place, while prescribing the scale
of diet for the prisoners. The State government may also modify the scales at
any time if it seems fit.

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No any reductions or alterations in the prescribed diet and scales
should be made except under special circumstances and with the prior
approval of the Inspector General. If, on the recommendation of the Medical
Officer, the Superintendent considers the prescribed diet to be unsuitable or
insufficient for a prisoner for reasons of his health or his peculiar mode of
living, he may order, in writing, a special diet, or add extra calories in the
diet of such a prisoner, subject to the formal approval of the Inspector
General (IG).

4.7.8.3 Hospital diet

A suitable hospital diet may be prescribed by the State Governments


according to local food habits on the advice of Medical Officers or Medical
Officer (in charge).

When meat is recommended by the Medical Officers as an extra diet


to the prisoners, the weight of meat should ordinarily be taken without
bones.

4.7.8.4 Cleaning, Storage and Issue of Food Items

 Care must be taken to see that all the grains are properly cleaned
before issuing to the mill-house for grinding and that the flour is
carefully sieved and kept in covered bins.

 Rice must be separated from husk, dust, or other particles, before


issuing for cooking. The qualities and seasoning of rice should be
such that the weight of the cooked rice is about 3 times its weight in
uncooked state. This should be tested many a times by weighing.

 All items of diet, as well as the fuel for cooking, shall be weighed
daily at the time of being issuing to the cooks by a responsible officer
not below the rank of an Assistant Superintendent (AS), especially
appointed for the purpose of supervising. They shall be issued in the

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fully prepared state or, if this is not possible, with a full allowance for
any loss which might occur during the preparations. The
Superintendent shall, however, be responsible for seeing that the
correct weight and the quality of the ration are issued or not. Medical
officers should always check the qualities of these items.

 Where chapatti/bread is given to prisoners, the same should be


prepared in prescribed weights for different classes of the prisoners,
and cooks must be informed before the hand of the prescribed
weights.

daal should be husked and unhusked grains properly and cleaned out
before cooking.

 Vegetables issued should be free from stalks and leaves and all others
particles and should be cut for cooking before being weighed and
delivered to the cooks. Potatoes or other root of vegetables should
form at least one-third of the total quantity of the vegetables. All
vegetables should be examined daily by the Chief Medical Officer or
his subordinate Medical Officer.

 An allowance of 25% extra, should be given for heads, tails, fins,


scales and entrails when whole fish is issued and for bones when
mutton is used.

 Antiscorbutics in the requisite quantity that should be issued daily


with the midday and evening meals to all the prisoners as well. There
should be standing instructions for the preparation and issue of
various types of antiscorbutics which are commonly available.

 Milk shall be stored in a properly cleaned and well-ventilated place.


Milk should be issued to prisoners on special or medical diet only
after boiling. Boiling should be done in the hospital enclosure under

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the supervision of a responsible officer who should be responsible for
its proper usage from the time it is obtained till its final distribution.

 For preparing the curds no water should be mixed with the milk
before boiling.

4.7.8.5 Distribution and service of food

 Inspector General of Prisons shall prescribe the time for serving


morning, mid-day and evening meals in prisons.

 Meals must be served with as it is fresh and hot. The eligible used for
carrying food, should be provided with well fitting lids. All food
should be carefully protected from the flies and other types of insects.

 At least fifteen minutes before the distribution of meal, a bell must be


sounded. Prisoners should then cease work, wash their hands and face
and queue up for food distribution, after which the cooked food
should be distributed by the cooks in the presence of a responsible
prison officer not below the rank of an Assistant Superintendent. They
should see that the food issued to any prisoner is not taken away by
another or is otherwise wasted.

 After service of foods at least twenty minutes of time should be


allowed to the prisoners to eat the food.

 Except with the permission of the supervising the officer, no food is to


be taken away from the dining area by any prisoner to eat it
elsewhere.

 When the meal is finished, the prisoners should proceed to the


washing platform where two tubs should be placed. The prisoners
should put any refuse food left in his plate into these tubs, separating
rice or chapattis from curried food. They should then wash their hands
and mouths as well as their utensils.The floors and platforms should
be cleaned immediately after the prisoners finish their meals

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4.7.9 Clothing

Every convict under sentence of Rigorous Imprisonment or of


Imprisonment for Life shall be required to wear prison clothing as prescribed
in these rules that should be supplied with prison bedding. Other prisoners,
such as under trial prisoners and detenues, shall be supplied with clothing
and bedding if they make an application to the Prison Superintendent for this
purpose. Such clothing should be of a color different from that issued to the
convicts, so that the distinction between convicts and other prisoners is
visible. The State will fix the scale of clothing and bedding accordingly the
change in climatic conditions taking into account security and discipline of
the prison. Moreover, a day for weekly maintenance and inspection of the
clothes and bedding of the prisoners should be decided and the prisoners
should also be made to wash their clothes once a week.

4.7.10 Cleanliness and Hygiene

Regarding the cleanliness, all pits and pools of the water stagnant,
near the prison shall be covered or filled up. Open drains, if any, around the
prison shall be carefully attended to and drainage in the prison should be
underground, drainage cuts should be cleaved wherever necessary to prevent
accumulation of water all which should be connected directly to the public
drainage system. Toilets should be properly cleaned and the drainage system
should be well-managed. The cells of the prisoners need to be cleaned on the
appropriate intervals as per the guidelines of the Model Prison Manual.
Hygiene of the prison as well as the prisoners must have to be kept in mind
for the proper management of prisons.

4.7.11 Medical Facility In Prison

Due attention has to be given to the medical facility provided to the


prisoners. There must be a hospital fulfilling all the basic requirements
within the compounds of the prison. And, a Medical Officer should be

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appointed specially for the prisoners. Special attention needs to be given to
the drug addicts and such prisoners should be kept separately, so that they
may not influence the other prisoners.

4.7.12 Wages To Prisoners

The prisoners must also be provided with adequate wages in lieu of


work undertaken by them. Several appeals were filed by State Governments
challenging the judgments by the respective High Courts on the issue of
prisoners’ wages. The State Governments were with the agreements with the
view that the present rates of wages paid to prisoners are too meager and
hence, they must be enhanced.

Use of Weapons against Prisoners

Any officer or member of the guarding staff, of a prison may use the
bayonet, or any other weapon, against any prisoner when he is found to be:

a. Escaping or attempting to escape, and if the officer or any member of


the guarding staff has reasonable ground to believe that he cannot
otherwise prevent the escape

b. Engaged in any outbreak or attempt to force or break open the outer


gate or enclosure wall of the prisons individually or collectively,
provided that he may use the weapons only if such an outbreak or
attempt continues.

c. Using violence against officers of the prison or other persons,


provided that there is reasonable ground to believe that the officer of
the prison or any other person is in danger of loss of life or limb or
that serious injury is likely to be caused to such officer/person

Before using firearms against prisoner, the officer, or the member of


the guarding staffs, that would give a loud and clear warning to the prisoners
that he is about to fire on him.

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No officer of the prison will use arms of any sort against a prisoner in
the presence of his superior officers, except under the orders of such a
superior officers, or if it is in self defence.In all of the cases requiring the
uses of the force only minimum force, in the given circumstance, shall be
used.

4.7.13 Inmates Management

The most and important fundamental goal of every jail is to maintain


a safe and secure environment for inmates, staff and visitors. Effective
management of inmate behavior is critical to achieving this goal.
Traditionally, the jails ought to control the inmates solely through physical
containment, namely, hardware - locks, steel doors, and security glass and
alarm systems. Staff safety was believed to depend on maintaining physical
barriers between staff and Prisoners. In the absence of the staff management
of inmate behavior, however, the emphasis on physically containing inmates
failed to keep jails secure. With inmates left to their own devices inside cell
blocks, problems, such as violence, vandalism, and lack of sanitation became
so common that they seemed inherent to jails, which, along with the
communities, have paid dearly for these problems through costly litigation,
staff and inmate deaths, jail riots and fires and escapes.

Over the past years, the jail practitioners have learnt that jails do not
have to be and should not be out of control, dangerous or filthy. Ample
evidence shows that the control of the jail could be established through
effective management of inmate behavior. There must be a combination of
inmate management philosophy with a specific jail design that conveys an
expectation of the positive inmate behavior, facilitates staff interaction with
inmates, and promotes management of inmate behavior. also that the Staffs
are able to interact extensively with all the inmates and provide continuous
supervision.

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4.7.13.1 Staff Management

The successful implementation of the correctional programs for the


prisoners mainly depends on the quality of the prison staff at various levels.
The most crucial factor which, if unfulfilled, could adversely affect the
proper management or functioning of the prisons, is lack of trained staff. As
we all know, the problems of overcrowding persists in the prisons all over
the country and compared to that the prison staff on duty is very less. The
two major problems are inadequate number of the prison staff and lack of
well-trained prison staff. Thus, it is necessary for the proper management of
prisons that well-trained people should be appointed, which are well-versed
to tackle any kind of the problems or emergency that may turn up within the
jail premises.

4.7.13.2 Training of prison staff

Qualified technical personnel should be appointed in the adequate


numbers in every production unit and for every program of the vocational
training. Such personnel could be posted in the prison on a transfer cum
deputation basis from the Industrial Training Institutes of the State. In Tihar,
the newly-recruited prison staff undergoes comprehensive training at Delhi
Police Training School/College. The training of the personnel is of the
paramount importance in a system of scientific Prison Management of
modern times. A properly trained staff would always be an asset in the
effective implementation of correctional policies and programs. Only prison
personnel especially trained for the job and genuinely devoted to the cause of
reclamation and rehabilitation of prisoners, can lead them to the cherished
goal. Much emphasis should be given on training in the correctional work
rather than on the security based training of the prison personnel. In the case

Overcrowding of the prisons also accelerates this problem as then the


workload of security staff also increased, hampering their ability to control

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crime and violence in the prisons. To be an efficient unit and the centre for
protection and the correctional treatment, a prison must essentially be a
scientifically manageable unit. Training of Prison personnel has remained
woefully neglected in India. This is much essential not only for ensuring the
efficiency, financial discipline and control, but also for minimizing
corruption in department and proper management of the prison system. The
Draft of the National Policy on Prisons formulated by All India Committee
on Jail Reforms of 1980-1983 mentions that prison service shall be
developed as a professional career service.The State shall endeavor to
develop a well-organized prison cadre based on appropriate job
requirements, sound training and proper promotional avenues. Efficient
functioning of the prison depends undoubtedly upon the personal qualities,
educational qualifications, professional competence and character of prison
personnel. The status, emoluments, and the other service conditions of the
prison personnel should be commensurate with their job requirements and
responsibilities. An All India service, namely, The Indian Prison and
Correctional Service should be constituted to induct better qualified and
talented personnel at the higher echelons. Proper training facilities for the
prisons shall be developed at the National, Regional and State levels.

4.8 MOVEMENT TOWARDS REFORMATIVE APPROACH

Reformative Theory of punishment has achieved worldwide support


in recent years and all civilized nations and more particularly socialistic and
the democratic countries of the world have adopted various measures and
statutory enactments, to apply correctional method of punishment. Reform
the criminal and not punish him, is the consensus of the opinion of the
modern Criminologists all over the world these days. The modern criminal
jurisprudence has emphasized that no one is a born criminal. Man turns into
a criminal by force of the circumstances like abject poverty and the other
circumstantial and environmental conditions, and not by choice. Thus,

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Reformative Theory of Punishment is more applicable to a civilized society.
Release the offender on probation is one kind of Reformative process –
whereby the needs of the community are balanced with the best interests of
the offender.

4.8.1 Probation Laws

Introduction about the probation has been given in the very first
chapter of this thesis. The probation laws that appears to be the enactment of
Section 562 in the Criminal Procedure Code, 1898 and when, in 1974, Code
was recast and freshly enacted as the Criminal Procedure Code, 1973, this
provision is dealt in Section 360. In 1958, in pursuance of International
Agreement, Indian Parliament enacted the comprehensive law – Probation of
Offenders Act, 1958. Before passing of this Act of 1958, the only Central
Law on Probation was contained in the Section 562 of Criminal Procedure
Code, 1898, which ceased to apply after the passing of Probation of
Offenders Act, 1958.

Besides, the Juvenile Justice (Care and Protection of Children) Act,


2000 also provides for the release of children, who have committed offences,
to be released on probation of good conduct and placed under the care of any
parent, guardian or other fit person, on such parent, guardian or fit person
executing a bond, with or without surety or any fit institution as the Board
may require for the good behavior and well being of the juvenile for any
period not exceeding three years.

4.8.2 Object of Probation Laws

The object of the Probation of Offenders Act, 1958 is to prevent the


conversion of the youthful offenders into the dangerous criminals of matured
age, in case they are sentenced to undergo substantive imprisonment in jail.
The above object is in consequence with the present trend in the field of
Penology, according to which the efforts should be made to bring about

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correction and reformation of the individual offenders not to resort to
retributive justice. But, there was not any provision for this reform,
rehabilitation and supervision in the Code of Criminal Procedure. Passing of
Probation of Offenders Act indicates that something more was required than
just letting a person off, in order to reform and rehabilitate him.

4.8.3 Principles and Practices for Probation Laws4

Are the key sections of the Act to deal with probation in India.
Section 3 of the Act, what deals with the power of the court to release certain
offenders after the admonition. This section is applicable to the first
offenders and it is discretionary in nature. The court has to consider the
circumstances of the case, that includes the nature of the offences and the
characters of the offenders. Section 4 of the Act, what deals with power of
the court to release certain offenders on probation of good conduct.
According to this section in the case of a person, who is less than 21 years of
age and is convicted for an offence not punishable with imprisonment for
life, he shall not be sentenced to imprisonment unless there present the
reasons, which justify such a course.

The object of the pre-sentence report is to appraise the court about the
character of the offender, exhibit his surroundings and antecedent and throw
light on the background, which prompted him to commit the offence and
give information about the offender’s conduct in general and chances of his
rehabilitation on being reason on probation.

Before deciding by the court whether the accused should be granted


benefit of Probation Laws, three aspects are to be kept in mind –
circumstances of the case, nature of the offence and character of the offender.
An inbuilt safeguard is provided in the sub-section (2) of the Section 6 that
when the court is considering the third aspect, i.e. character of offender, then

4 Sections 3 and 4 of Probation of Offenders Act, 1958

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before the court forms its opinion adverse to the offender in that regards it
must seek a report from a Probation Officer or get any other information that
is available relating to the character and physical and mental condition of the
offender.

The Juvenile Justice (Care and Protection of Children) Act, in 2000,


also provides for the report of the Probation Officers or recognized voluntary
organizations to be considered before passing a sentence. A Magistrate who
is appointed as a Member of the Board constituted under this Act must know
something of child psychology. The Board can pass orders against the
youngsters. The Act provides for the setting up of the Observations and
Special Homes by the State Government where the juvenile could be placed.
Here, the rehabilitations and social integration of the children would take
place. It also provides for an aftercare programme, which would take care of
the delinquent child after he has been discharged from these homes, that was
based on the report of the Probation Officer. The Probation Officers have
been appointed under the Probation of Offenders Act, would also function
under the ephemeral Justice (Care and Protection of Children) Act.

4.8.4 Criticism against the Concept of Probation

If offenders are not punished suitably and adequately, the faith and
confidence of public in Criminal Justice System is bound to erode and the
tendency to obey the law would be decreased gradually, which would not be
good for the society. But, if offenders are punished according to the gravity
of the offence, then the people would think twice before committing the
offences again, rather they will follow law strictly and also the convicted
person after punishment will hesitate to commit it again. Before applying
Probation Laws, this matter should be considered. Some of the criticisms are
given below:

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a) There is an impression and feeling among the people that the
Probation Law is an easy let-off of the wrongdoer and it is a form of
the leniency shown to the offender and not a punishment. This
opinion of the public mind is so true when the offender is released
after admonition. In past where an offender was released on
admonition by the courts under Section 562 of the Criminal Procedure
Code, 1898, it had definitely a statutory impact on the offender so as
to correct himself, but in this era of Modernization, Globalization,
growth of Industrialization and expansion of Cities and Metropolises
with the rapid expansion of population, it is very hard to say that
release of an offender after admonition would at all serve any useful
purpose and achieve the object of law for reformation of the offender.
Generally, no agency outside the court maintains the record as to how
many persons are released after the admonition under Section 3 of the
Act except there are some entries in the records of the Magistrate
lying in a dusty corner. No one has bothered to enquire, ascertain and
bring it to the notice of the court about the subsequent conduct and
attitude of the offenders, who was released after the admonition by
the court. Actually, in real practices, the admonition has absolutely no
impact nor it brings about the desired result on the life and activities
of the offender.

b) Section 3 of the Act has become a dead law in the statute book as it
has outlived its services with the changing patterns of the society with
its new socio-economic dimensions. It is accepted proposition that the
law must be in conformity with the changing of the social forces. This
Act was enacted near about 150 years back, might not be able to
respond to the needs of the present-day society. The offences, like
theft and cheating are generally made by planning and not by sudden
impulse. These are in the form of economic offences and cannot be
treated liberally in view of the fact that the offences of the theft and

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cheating are on the increase and are against the interest of the
protection of society mainly because mere release with admonition
does not strike such a terror in the mind of the offender that he will
not commit it again.

c) In spite of the statutory provisions, as already mentioned earlier for


awarding compensation to the victim, who has suffered humiliation,
indignity, loss of reputation, loss and damage to his property and
injury, both the physical and mental, and even loss of the life
sustained by the offender, the court in very rare occasion award
compensation to the victim. The offenders are released without grant
of any compensation to the victim of the crimes. In very rare cases,
the State should also be considered to be the victim or aggrieved
party. If actually the State is aggrieved, it is the duty of the State to
punish the wrongdoers and also at the same time, to protect the victim
by duly compensating him for the loss and damage. In a Welfare
State, it is the duty and responsibility of the State to reform the
criminals by applying the reformative laws, like Probation Laws, but
at the same time, the necessity to adequately compensate the victim of
the crime cannot be overemphasized.

d) It is not only a matter of experience, but it is the human feeling and


sentiment that the aggrieved party, who has suffered loss and injury to
his person and the property, is never satisfied with admonition of the
accused by the court, but he is always concerned about grant of
compensation in some form or other. So, in the era of reformation of
criminal and new sentencing policy, the practice of releasing the
offender after admonition under Section 3 of the Act without grant of
compensation to the victims would not serve the object of laws, and
also it has no reformative impact on the offender as well as the
society.
e) Actually, the Section 3 of the Act is also applicable to the initial
offenders and it is discretionary in nature. The court has to consider

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‘the circumstances of the case, including the nature of the offence and
the character of the offender’. But, the most interesting provision of
this section is, it does not require the court to call for a report from the
Probation Officer.

f) Unfortunately, Section 3 of the Act does not make any provision to


call for a report from the Probation Officer and to consider the reports
while dealing with the offenders – which is a serious lacuna in the
Act. Even if the object of Section 3 appears to be noteworthy, in
absence of inbuilt safeguards, the lawbreakers can escape from the
punishments by invoking to Section 3 of the Act.

g) Though, under Section 12 of the Probation of Offenders Act, it is


provided that the offenders released on probation will not suffer any
disqualification attaching to conviction in his employment, yet it is
revealed that this provision is not followed in private sector even in
some Government Organizations.

h) There is much confusion among the Judicial Officers that both the
provision of Code of Criminal Procedure as well as Probation of
Offenders Act could be applied simultaneously. The root cause for
this appears to be the predilection of the Trial Courts for the Section
360 of the Code. The Trial Courts seem to have taken the belief that
the provisions of Section 360 of the Code can be equally used in place
of provisions of the Act. They find it simpler, easier and perhaps less
cumbersome and time-consuming than the provisions of the Acts and
a strong tendency has, therefore, grown to rely more and more on the
provisions of the Section 360 of the Code. The provisions of the
Section 360 of the Code have no application in the States or parts
thereof where this Act is in force. So, where the provisions of the
Probation of the Offenders Act are applicable, the employment of the
Section 360 of the Code, 1973 is not to be made. The Supreme Court

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also in this regard makes this provision clear. In Chhanni v. State of
Uttar Pradesh5 our Apex Court held that where the provisions of
Probation of Offenders Act have been brought into the force, the
provisions of Section 360 of the Criminal Procedure Code, 1973 are
wholly inapplicable.

Despite the Police reforms, the police remain in the dark about the
correctional laws and the goal of the probation system in Criminal Justice
System. Most of them having no faith in the probation system and, therefore,
they harass probationers by exercising their arresting power on the suspects.
They even threaten the probationer to make an adverse report, if the
probationers do not fulfill their illegal demands.

4.8.5 Suggestions for Effective Probation Laws

There is lack of subordinate judicial willingness and awareness in


India due to which probation laws have not gained the momentum which
was expected by legislatures. Lower judicial officers are reluctant to adopt
the provisions of probation of offenders act. Here are few suggestions listed
herewith , which may be implemented at the legislative and administrative
level, for more effective probation laws in India:

 The exception to Section 4 of the Act mentions that for availing


benefit of probation regular place of living or occupation is required
from offenders or their surety. Due to poverty and illiteracy it is not
possible for large section of society to fulfill these conditions. So
there is need to amend this mandatory condition.

The provisions of probation of offenders act be amended so that probation


can be given easily on the lines of section 360 of criminal procedure code.

5 [2006 Cri.L.J. 4068 (SC) : (2006)2 SCC(Cri) 466],

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 More deeply the provisions of the Probation of Offenders Act and the
Code of Criminal Procedure could be amended to make them simpler
and detailed like the Juvenile Justice (Care and Protection of
Children) Act 2000, which mentions various reformative techniques
for example shelter homes, setting up of the observation homes etc.

 The work of probation officer is not taken seriously in India. there is


lack of probation officers in almost every state, sometimes these
duties are allotted additionally to other government officer .there is
urgent need of recruiting suffient officers so that more officers are
available for supervision of offenders.

 There is provision of ordering compensation from offender to victim


in probation laws but these has become a bookish rule only as judicial
officers are reluctant to adopt this provision. This is need of our that
awarding the compensation must be made practice.

 A thorough national and state level training curriculum for the staff
related to probation must be made which should stress upon
rehabilitations and reforms in prison administration. These trainings
programs much include the Guidelines mentioned by various
international covenants.

As the Prison managements are most of the theoretical appraisal


methods for the prison system. But the modern perspective for the prison
system what may be most significant for prison staff as well as prisoners. For
this an innovative techniques have been developed for the prison system.
This technique would be most appraisals as per the modern perspectives. So
in the next section we would study about the innovative techniques for the
prison system.

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4.9 TECHNIQUE FOR THE PRISONERS AND PRISON
STAFF IN INDIA

Equilibrium thinking is the best technique for the prison system for
prisoners and prison staff. Most of the prisoners in any prison system are in
for having committed crimes of passion, namely, due to anger or revenge or
jealousy or fear. They continue to suffer from such passions while they are
incarcerated. Hence, any intervention, while they are in the custody, should
be addressed to heal them of such infirmities. Every society with the dawn of
the civilization, that came up with its own normative rules and legal codes
for its proper functioning. If the members follow these rules, then it would
bring about a situation through which the society could attain the social
unity, conformity and cohesiveness in its social system. Majority of the
persons conforms to the norms and the laws, which is the process of
socialization by the society or social groups. Some of the members go astray
from the rules and norms due to maladjustment and other factors and show
their resentment to the measures of social control. They violate the codes of
the society. The challenge of maintaining the harmonious relations between
the persons and society - a perennial issue for mankind - has got aggravated
during the present times.

Institution in Prison

Prison Institution and Correctional Administration is one of the three


main constituents of the Criminal Justice System. With the change in the
perception towards the prisoners, prisons are no longer been considered only
as a place for punishment. Instead, they are considered as reformatories and
great attention is given to ameliorate the conditions of the jails, so that, it has
a healthy impact on prisoners in developing positive attitude towards life and
society. Pioneering work in this regard was done by Dr. Kiran Bedi as Head
of the Tihar Prison administration

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Prisons are considered as small societies and studies of prison life
have detailed the existence of prison sub-culture, replete with inmate values,
social roles, and lifestyles. Prison sub-cultures are very influential and it
must be reckoned with in both the inmates and staff. Complicating life
behind bars are the numerous conflicts of interest between inmates and staff.
Lawsuits, riots, and frequent grievances are symptoms of these differences.
Problems, which exist in conventional society, are mirrored and often
magnified inside of prison. HIV-infected inmates, the geriatric offenders and
the mentally ill-all constitute special groups within the inmate population
which requires additional care.

Crime does not stop at the prison door, nor does rehabilitation
automatically begin. If we expect the prisons to meet the demands of the
rehabilitation and reformation, we must be willing to solve the problems of
the prison first.

Equilibrium Thinking

Equilibrium Thinking is a simple, skilful method for studying the self


motivation and self-changes in a person (subjective experience) – the process
people use to build their unique, distinctive characteristics. Equilibrium
Thinking is a practical and dependable method for developing and expanding
one’s own behavior, so that effective way of living can become a matter of
conscious choice. In general terms, Equilibrium Thinking is about how
people think, feel, learn, motivate themselves, interact with others, and
makes choices to achieve realistic goals through the processes of auto
commands. Equilibrium Thinking is an approach to overcome one’s negative
feeling in life.

Objective of Equilibrium Thinking is to increase the behavioral


choices available within us. The simple binary concept in Equilibrium
Thinking is “Be at it, beat it”. This concept gives more emphasis to the

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choices and possibilities we become aware of and make available to
ourselves, through this we can become aware of and be able to fulfill our
desires. By identifying the causes that could lead to many problems in life,
one can follow the simple technique of Equilibrium Thinking to overcome
one’s frustrations, tension and anxiety. This paves the way for the human
beings to understand the life in a better and healthy way. This challenges the
behavior of the individual to maintain cordial relationship at home,
workplace, friendships and relationships. These cognitive-perceptual patterns
results into emotional balance and approved behaviors. By the development
of these skills, an individual can usefully organize and reorganize his or her
subjective experience, as well as having the opportunities of enabling others
to usefully organize and reorganize their subjective experience.

4.10 A WORLDWIDE COMPARISON OF THE PRISON


SYSTEM

4.10.1 United States of America

4.10.1.1 Constitutional Rights of Prisoners

The Eighth Amendment to the United States Constitution protects


citizens against cruel and unusual punishments. In terms of prisoners' rights,
this protection requires that prison officials afford inmates certain minimum
standard of living. Additionally, prisoners retain some other Constitutional
rights, including due process in their right to administrative appeals, freedom
of religion, equal protection under the law (at least, as compared to other
inmates), and a right of access to the parole process. Courts have held that
the Equal Protection Clause of the 14th Amendment has been held to apply
to prison inmates so prisoners are protected against discrimination or
unequal treatment based on race, sex, religion, age, national origin, and
creed.

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Other courts have held that certain “penumbral” rights, or rights that
are not explicitly granted by the constitution, also apply to prisoners. This
includes the right to reproduce, right to medical attention, and others.

4.10.1.2 Other Rights of Prisoner

Additionally, the Model Sentencing and Corrections Act adds


additional, explicit protections against discrimination. It provides that a
confined person has a protected interest in freedom from discrimination on
the basis of race, religion, national origin, or sex, and should have limited
rights to speech and religion.

4.10.1.3 Courts and Prisons

Courts are usually very reluctant to limit the discretion of state prison
officials to classify prisoners i.e. designate them as maximum or minimum
security, solitary confinement, and so forth. Indeed, the U.S. Congress has
given federal prison officials complete autonomy in controlling prisoner
classification as relates to the conditions of confinement. In other words,
such determinations are generally left to the control of the Federal Bureau of
Prisons.

Similarly, courts tend to give broad deference to prison officials


regarding prisoners' rights. For the most part, so long as the conditions of a
prisoner's confinement are within the sentence and do not otherwise violate
the prisoner's constitutional rights, the due process clause of the U.S.
Constitution is not triggered and does not require judicial oversight.

4.10.1.4 Standards of Review for Prison Decisions

When prisoners' rights are in question, and judicial review is required,


one of two standards are followed. In cases impinging on an inmate's
constitutional rights, the strict scrutiny test applies. Strict scrutiny is the most
stringent standard of judicial review used by U.S. Courts. In order to pass the

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strict scrutiny test, the prison's actions or policy must satisfy three tests: (1) it
must be justified by a compelling governmental interest, it must be narrowly
tailored to achieve that goal or interest, and it must be the least restrictive
means for achieving that interest.

For cases that do not relate to violations of an inmate's constitutional


rights, the strict scrutiny test does not apply, but rather, the rational
relationship test is used. This is the lowest level of judicial scrutiny, and
merely tests whether there is a rational relationship between the action or
policy and a legitimate state interest. following agencies are entrusted with
prison administration in America.

a) American Jail Association

b) Bureau of Justice Assistance

c) National Institute of Corrections

d) National Institute of Justice

Federal Bureau of Prisons

The Federal Bureau of Prisons (BOP) is the agency in charge of


ensuring federal correctional facilities are safe, humane, cost-efficient, and
appropriately secure. They are responsible for more than 200,000 inmates
and nearly 40,000 employees.

Federal Correctional Facilities

There is a unique feature of prison administration in U.S which


provides a channel for submitting any grievance relating to prison
conditions. One has to follow the process to file a complaint about Bureau of
Prisons (BOP) facilities. This includes complaints about a particular facility,
policy, procedure, or allegations of abuse.

 To file a formal complaint directly with the facility in question.

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 To file a complaint with the BOP Regional Office that oversees the
facility in question.

 To Contact BOP Headquarters in the District of Columbia, or the


Department of Justice - Office of the Inspector General, the agency
that oversees the BOP.

4.10.2 United Kingdom

The prison administration is governed according to The Prison Act,


1952 which lays down detail procedure for prison setup and the system.
There may be five formal commissioners as head below whom there are
many subordinate officers like inspector and a governor, a medical officer
and such other officers as May needed at each prison.

Basic features of act are:

(a) In a prison used for both men and women separate buildings or parts
of a building shall be used for the men and for the women
respectively so as to prevent the one from seeing or communicating
with the other.

(b) There is no provision of corporal punishment except in some


exceptional cases.

(c) If prisoner's health is poor or undesirable to detain him in prison,


conditional temporarily release order may be given

(d) If a prisoner is discharged from prison, the commissioner may provide


him remuneration through governor of that prison.

(e) If it appears to the Secretary of State that a person serving a sentence


of imprisonment is under twenty-one years of age and might with
advantage be detained in a Borstal institution he may, authorise the
Prison Commissioners to transfer him to a Borstal institution.

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Some of the practical reforms which have developed in the U.K are:

4.10.2.1 Arrival at prison

When someone arrives at prison they have at least one interview and
assessment so that they:

 Understand prison rules and procedures

 Know what their rights are

 Are told of courses available in prison

 Get the right healthcare and treatment facility

The prisoner gets a prison number and their property is recorded and
put somewhere safe until they’re released.

4.10.2.2 Security categories

Prisoners are given a security category based on:

 How likely they are to try to escape

 Their risk of causing harm to other prisoners and prison staff

A prisoner may be transferred to another prison with a different


security category at any time.

4.10.2.3 Privileges

Prisoners who follow rules can earn privileges. This is called the
‘Incentives and Earned Privileges Scheme’. A prisoner may be able to:

 Get more visits from family or friends

 Be allowed to spend more money each week

Privileges are different in each prison - staff can explain to the


prisoner how the scheme works.

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4.10.2.4 Punishments

A prisoner who breaks prison rules is normally punished. They can


be:

 Kept in their cell for up to 21 days

 Given up to 42 extra days in prison on top of their original sentence

4.10.2.5 Rights

Prisoners have rights, including:

 Protection from bullying and racial harassment

 Being able to get in contact with a solicitor

 Healthcare - including support for a mental health condition

All prisoners should be able to spend between 30 minutes and an hour


outside in the open air each day.

4.10.2.6 Healthcare in prison

Prisoners get the same healthcare and treatment as anyone outside of


prison.

Treatment is free but has to be approved by a prison doctor or


member of the healthcare team.

Prisons don’t have hospitals, but many have in-patient beds.

Most problems are dealt with by the healthcare team. If they can’t, the
prison may get an expert to visit the prison arrangement for treatment in an
outside hospital. The healthcare team can ask the prisoner’s family doctor for
their records, but only if the prisoner agrees to it.

4.10.2.7 Special help and support

Prisoners can get specialist support in case they :

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 Have drug or alcohol problems

 Have HIV or AIDS

 Are disabled or have a learning difficulty

4.10.2.8 Refusing medical treatment

A prisoner can refuse treatment. However, the healthcare team may


choose to give treatment if the prisoner isn’t capable of making decisions
themselves for example if he is mentally ill. Wherever possible, the
healthcare team will discuss this with the prisoner’s family first.

4.10.2.9 Vulnerable prisoners

Prison Staff are trained to spot prisoners at risk of bullying, suicide or


self-harm. The prisoner may get their own case manager who will make sure
that they:

 Are asked about their mental health if they are depressed.

 Get regular support from a health specialist

Most prisons also have ‘listener schemes’ that offer emotional support
in confidence - normally from fellow prisoners.

4.10.2.10 Psychiatric hospitals

A prisoner can be moved to a secure psychiatric hospital for their own


safety. This only happens if they meet certain conditions under the Mental
Health Act. Once the prisoner gets better, they return to prison.

4.10.2.11 Pregnancy and childcare in prison

Women who give birth in prison can keep their baby for the first 18
months in a mother and baby unit. A prisoner with a child under 18 months
old can apply to bring their child to prison with them. Social facility are
arranged for children over 18 months to be cared for, for example applying
for a place in a mother and baby unit, foster care etc. He prisoner can apply
for a space in a mother and baby unit when they enter prison. An admissions

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board will decide if it’s the best thing for the child. If there is no places in
that prison, the mother may be offered a place in another unit and if there are
no spaces in any unit, arrangements must be made for the child to be cared
for outside prison.

4.10.2.12 Prisons with mother and baby units

The following prisons have mother and baby units in u.k

 Bronzefield

 Eastwood Park

 Styal

 New Hall

 Peterborough

 Askham Grange

4.10.3 Prison Conditions in France

The French prison system falls under the Ministry of Justice. It is


governed by an Act of 1987, amended in November 2009. Before the reform,
most of the rules for prisoners and operation of prisons were lower level
regulations. The enforcement of sentences should enhance ‘integration or
reintegration of prisoners and the prevention of recidivism, in due respect of
the interests of society and the rights of victims.’ In principle, the system of
prisons should be turned towards reintegration. However, the guarding
mission entrusted to the prison administration still takes precedence over
this. The external contacts are considered a source of danger.

There are 190 prisons spread across the French territory including
main and overseas territories. They are divided into several categories:

Juvenile facilities- for minors (6)

a) Remand prisons -for persons on remand and sentenced to less than


two years (98)

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b) Security prisons provided for long term prisoners, that is to say
over 10 years (6)

c) Detention centers - facilities for inmates sentenced to medium


sentences (25)

d) Day-leave centers facilities for persons receiving a sentence


adjustment (11).

e) ‘Hybrid’ structure - include several categories: remand prison and


detention center, and where applicable, security prison or day-
leave center (44). This type of “hybrid” structures tends to
develop. The latest prisons are virtually these types of prison.

The size of prisons varies considerably. The smallest has an


accommodation capacity of 10, the largest 3.000. And, on average, they vary
between 100 and 600 places, depending on their construction year. About
half of the institutions have long history means from the 19th or the
beginning of the century. It is sometimes former religious premises like
convents, abbeys, etc. that have been converted in prison. These facilities are
generally located in the heart of cities. The others were built at the end of
1980’s or more recently (2000s to present). These prisons are larger (300-400
places for those constructed in the 80’s and 500-600 places for the most
recent) and usually located on the outskirts of cities industrial zones, etc.
with poor access by public transportation. They are also designed so as to
limit contact between inmates, but also between inmates and prison staff in a
security perspective. Any movement within the prison implies crossing a
multitude of gates and locks. These new buildings are decried by all
prisoners, prison staff, external stakeholders, etc. To prevent any form of
social life and thus causing tensions and violence. These prisons built since
the late 80s also fall under the ‘joint management ‘means services such as
laundry, food, work, vocational training, etc. are delegated to private
companies. More recently, the delegations also extended to the construction

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and maintenance of buildings. The private companies own the buildings for a
27 years period, during which the government pays rent.

4.10.3.1 Principles in France for Reforms

(A) Activities- activities, with the aim of rehabilitation according


to the age, competences, disabilities and traits, must be
proposed to the prisoners. It could be cultural, sporting,
educational or professional activities.

(B) Care of sensitive inmates- Prison administration must ensure


that the physical integrity of each prisoner is preserved in all
collective or individual places. The law provides that any
prisoner who is the ‘victim of a glaring act of violence
committed by one or more inmates’ must be ‘subject to
supervision and to a special detention regime’.

(C) Job and Work-every step possible should be taken to offer jobs
to prisoners who wish to work.. Prisoners might also get
production jobs, which they will carry out in workshops or
within their prison’s cells, from private companies or from the
penitentiary industrial service.

(D) Exercise- Various regulations provide that each prisoner must


have the possibility to leave his/her cell in order to carry out a
daily walk of at least one hour in the open air.

(E) Education-The prisoners who needs or wishes to have access to


quality education, equivalent to that which is provided in the
outside world than staff will manage to provide facility to
them.In practice, teaching units exist in each and every
institution but, due to a lack of resources, the do not provide
with all types of education. In terms of resources, priority if
given to inmates that are the most in need.

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(F) Freedom of thought, conscience and religion- The Prison Law
of the 24th November 2009 provides that prisoners can
practice the worship of their choice. During incarceration,
prisoners must be informed of their right to receive visits from
a cult minister and to attend services and worship meetings
ensured by authorized chaplains. A specific room with neutral
decoration must exist in each prison for the purpose of worship
practice.

(G) Information- In every prison there is a specific department that


informs prisoners of any legal proceedings in which they are
involved, such as convictions that regard them, and of the time
they have to challenge such decisions.

(H) Provisions for women-Pregnant prisoners must be sent to a


public hospital that has a maternity unit. During childbirth, the
prisoner should not be handcuff or tied up and no prison staff
should be admitted into the delivery room. In theory, during
the stay in the hospital there should be no surveillance or
monitoring unless a prisoner is thought to be dangerous.

(I) Foreign National -When they first enter prison, foreign


nationals must be informed by administration that they can get
in touch with diplomatic and consular services of their own
country. To this end, these services addresses must be provided
to them. If their national state allowed reciprocity to the benefit
of France, foreign prisoners can communicate with consular
officials in their own language.

(J) Alternatives to imprisonment-The notion of alternative is


mostly used is the sense of alternative to imprisonment. It
gathers every restrictive freedom sanctions, except prison.It

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can be a suspended sentence doubled with probation: the
convict is subject, for a certain period of time, to a number of
obligations etc.

(K) ILL treatment of prisoners-Prisoner’s complaints of ill-


treatment by prison staff or by other prisoners are handled by
prosecutor's office or can be transferred to an investigate judge.
In case of ill -treatment by prison staff, prisoners can also refer
to the Defenser of the rights who can conduct inquiries.

(L) The French section of the International Prison Watch


(Observatoire international des prisons - OIP-SF) is a non-
profit non-government organisation created in 1996 in order to
promote respect for the human rights of incarcerated persons,
with respect to the international human rights instruments.
Basically, the OIP collects and gives publicity to information
on the conditions of detention in order to raise public
awareness and alerts public authorities to the problems
detected, informs imprisoned individuals about their rights and
supports them in the procedures to enforce these rights
campaigns for the passing of laws and other appropriate
measures to ensure guaranteed respect of prisoner's rights and
favours limited use of incarceration, reduction of the penalty
scale and development of alternatives to penal prosecution and
non-custodial measures.

4.10.4 South African Prison System


4.10.4.1 Prison situation in past

Apartheid plays important role in the history of South African prison


which means ‘separateness’, or ‘the state of being apart’. It was a system of
racial segregation in South Africa enforced through legislation by the

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National Party (NP), the governing party from 1948 to 1994.. Millions of
people were forcibly removed to places of residence determined for them by
state officials. Punishment of those who failed to respect this system
involved a range of corporal punishments, formal and informal, and the
construction of a penal system. The country had one of the world's highest
rates of rate of imprisonment and conviction caused particularly by the
enforcement of the law requiring various population groups to carry identity
documents, known as 'passes'. Imprisonment, moreover, was harsh. The
prison system was militarized in the 1950s, when warders adopted military-
style uniforms and ranks, and developed the use of convict labour for the
development of the country, in building roads, harbors and in mine work.The
penal system was also used extensively from the 1960s to detain people
without trial and those who were convicted of crimes related to apartheid
opposition. Under the regime of apartheid, the main objective of prisons was
to keep their inmates out of the community.

It is the abolition of formal racial segregation - in prisons as in politics


- that has been the most visible change in South Africa since its
democratization.The country now has a prison system controlled by one
national body, the Ministry of Correctional Services, and administered by the
Department of Correctional Services (DCS). It is officially committed to a
policy that aims to make prisons more humane places with a view to
rehabilitating offenders and reinserting them into society.

4.10.4.2 Prisons reforms in new South Africa

The prisons law was amended in 1993 when solitary confinement and
punishment on a spare diet were abolished, as was corporal punishment for
prisoners.

The introduction of first the interim, and then the final Constitution,
which was enacted in 1996 consolidated the concept of prisoners' rights6.

6 S 35(2)

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deals with the rights of detained and arrested persons, including the right to
'conditions of detention that are consistent with human dignity; including at
least exercise and the provision at state expense, of adequate
accommodation, nutrition, reading material and medical treatment.7The first
Constitutional Court case, which declared the death penalty unconstitutional,
the court reaffirmed that although dignity may be impaired by imprisonment,
a prisoner does not lose all his rights on entering prison.

The new Correctional Services Act drafted in 1998 takes the new
imperative of human rights into account.. In terms of the new Act, the
Department of Correctional Services is committed to a threefold purpose:

a) Enforcing the sentences of the court in the manner prescribed by


the Correctional services act .

b) Detaining all people in safe custody whilst ensuring their safe


custody.

c) Promoting the social responsibility and human development of all


prisoners.

Hence, the goal of correctional services was to provide facilities,


opportunities, services and incarceration conditions that would be conducive
to the rehabilitation and development of offenders. The Act also states that
the Department must provide access to as full a range of programmes and
activities as is possible to meet the educational and training needs of a
prisoner. A prisoner may also be compelled to participate in programmes.The
Act creates an enormous responsibility to provide programmes, yet it is
constrained by lack of resources, such as sufficient social workers, teachers,

Psychologists and other professional staff. Many prisons have severe space
constraints and simply do not have rooms in which to run programmes.

7 In S V Makwanyane, 1995 6 BCLR 665 (CC); 1995 3 SA 391 (CC) 142.

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a) Among other new initiatives introduced in the last five years is the
establishment of independent oversight of prisons through the
Independent Judicial Inspectorate headed by an inspecting
judge.One or more Independent Prison Visitors is to be appointed
for each prison, to make regular visits, interview prisoners and
deal with the complaints of Prisoners by reporting the complaints
to the Head of Prison.

b) A further measure introduced in an attempt to improve the prison


systems is the privatization of prisons.. The government believed
that privatization would attract Private capital and thus would help
to reduce prison overcrowding.

c) Security-in the early period of South Africa's political


transformation also introduced the concept of super-maximum
security prisons, based on the American model from Marian
Island.There is a high emphasis on security and prisoners are
shackled to a stun Belt whenever they leave the prison, and
handcuffed each time they leave the cell.So even South African
prison system has improved a lot still problem of overcrowding,
Corruption, custodial tortures, rape, sodomy in prison is
challenges before government. Also health issues like HIV/AIDS
are yet to be controlled.

4.10.5 Prison System of Nigeria

The Nigerian Prisons Service deserves commendation. Reforms as the


word connotes have been viewed by political watchers and Nigerians public
as revolution towards humanistic approach. In the eyes of public opinion and
in the judgment of history, the Nigerian Prisons Service NPS is not an
ordinary agency of government, considering its responsibilities to take into
custody of people handed over to it. These groups of people ranges from

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kidnappers, assassins, armed robbers, pipe line vandals, officers and men of
security agencies, politicians and high ranking civil servants, some have
been convicted and some are awaiting trial. a curious background check
showed that as enormous as the mandate of NPS is, its finances are very lean
to carry on its functions, especially with the various reform programmes
introduced to build the capacity of prison inmates. In the various sectors,
available for training for the inmates are education, agriculture, technology,
etc. today, prisoners in dozens graduates in different fields of endeavor
through the National Open University of Nigeria commonly known as
NOUN. The truth, however, is that many prisoners are undergraduates and
graduates including those already doing Masters Degree programmes, some
are said to be preparing to commence PHD programmes in the Open
University.

4.10.6 Prison System of Russia

In year 1992 important changes were introduced into the country’s


penal legislation, which at the time was still known as legislation for
corrective labour. These were aimed at making the regime for persons
deprived of their liberty more humane. Certain unnecessary and humiliating
curtailments of prisoners’ rights were also removed. President of the Russian
Federation, in year 1993 approved some suggestions which laid the
foundations for a draft of the principal organisational measures which
needed to be introduced. These included:

(A) the creation in all territories of the Russian Federation of


institutions capable of administering custodial punishment for the
majority of convicted criminals within the region where the
offenders lived or where they had committed their crime.

(B) The extension of the guaranteed minimum of privileges provided


for prisoners, bringing these into line with international norms.

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(C) The introduction of individual programmes for the re-education of
each prisoner based on the psychological, psychiatric and social-
pedagogical diagnosis of the personality of prisoners,

(D) The extension of prisoner’s rights in the domestic and production


spheres, the organisation of their leisure and the creation of
conditions allowing for the activity of non-governmental
associations.

(E) One of the most important focuses of reform in the legal sphere is
judicial and legal reform aimed at establishing the priority of
human rights, the implementation of constitutional principles and
bringing of Russian law into line with generally accepted norms of
international law.

4.10.6.1 Principles related to reforms in Russia

 Government aimed at creating meaningful conditions for the


provision of legal aid to citizens, as guaranteed in the Constitution of
the Russian Federation. These included convicted prisoners and
persons in detention.

 The penal system has recently taken upon itself the tasks of escorting
prisoners when they are outside a penal establishment, providing
medical services for prisoners, undertaking major building projects,
training staff in the system’s own staff training establishments in both
the specialised secondary and tertiary sectors, and providing pensions.

 A psychological service has been set up with sufficient staff. The


bodies concerned with the inspection of penal establishments,
administering punishment and other legal measures for punishing
criminals which do not involve the isolation of convicted prisoners
from society are now part of the penal system.

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 The penal system has become open for oversight by the public. This is
something which experts from the Council of Europe and the UN
Committee against Torture and members of international and
Russianorganisations campaigning for human rights have been able to
see for themselves, when they visited penal institutions for prisoners
deprived of their liberty.

 Liberalization and re- focusing of criminal policy, first and foremost


with regard to persons who have committed minor offences or those
of medium gravity. The practice of sending persons convicted of
minor offences or those of medium gravity to settlement-colonies,
which in Russia constitute the prototype for the ‘open prisons’ that
exist in many West European countries.

 The powers of the court in the course of a pre-trial examination of a


case have been increased. Now, as in the whole of the civilised world,
only the court has the right to make decisions regarding the methods
of restriction of freedom such as remand in custody or house arrest;
the extension of the period during which a detainee will remain in
custody prior to his trial, the placing of the suspect or accused not in
detention, but in a medical or psychiatric ward for the purposes of
forensic or psychiatric expert examination, the search of a residence
without the agreement of the persons living there, the search or
seizure of objects and documents, now judicial permissions are
needed for temporary removal of an accused from his employment,
the surveillance and recording of telephone conversations etc.

 There has been a substantial extension of the rights of a suspect or


accused person. The point at which such a person acquires the right to
defence in a variety of procedural situations has been rigidly laid
down. It has been established that the participation of a defence

217
lawyer is obligatory in all criminal cases apart from those when the
suspect or accused has rejected his services. The powers of the
defence lawyer have also been extended.

 More effective guarantees are now in place for the rights of any
person arrested on suspicion of having committed a crime. Since the
new Criminal Procedure Code of the Russian Federation was adopted,
only a court can give permission for an individual to be held under
arrest for more than 48 hours, for the surveillance, search and seizure
of correspondence and so on.

 The circumstances in which an accused may be remanded in custody


have also been changed. remand is provided only in exceptional cases
only

 In the central and regional agencies of the penal system a special


service has been set up to ensure the observance of human rights of
citizens in prisons and colonies.

 More and more effort is being devoted to safeguarding prisoner’s


right to work. The wages paid for prisoner’s work are gradually
increasing.

 Regular training of staff in keeping with the new principles is held, so


that they are able to respond appropriately to the demands of
international standards regarding the treatment of prisoners.

 Freedom of conscience and religious worship is guaranteed to


prisoners.

 Measures are being adopted at a national level to improve social


conditions for the staff of the penal system.

 Medical treatment for prisoners deprived of their liberty and also for
persons suspected and accused of crimes detained in remand prisons.

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4.10.7 Prison Reforms in China

According to the current laws of China, the main rights of prisoners


while they are in prison include the following :

A) In response to decisions made by the people's courts, criminals now


have the right to appeal. In last decade more than 40,000 such appeals
were accepted and heard in Chinese courts. A criminal accused of
having committed a crime during his prison service has the right to
defend himself

B) Prisoners have the right to protection against assault on their human


dignity or personal safety under all circumstances. In response to any
illegal action on the part of a warden or guard, such as obtaining a
confession by torture, administering corporeal punishment or
otherwise maltreating a prisoner, the victim has the right to appeal to
the people's procuratorate, the people's court, the people's government
or any other institution to expose and report such treatment.

C) Prisoners who have not been stripped of their political rights have the
right to vote according to law.

D) Prisoners have the right to make reasonable suggestions concerning


the management, the educational programme, production, recreational
activities, or sanitary conditions of a prison or reform-through-labour
institution.

E) Criminals have the right to lead a normal life. The State guarantees
material needs such as food, clothing, housing, etc. The average per
capita living space for prisoners is over 5 square metres. Efforts are
made to make all prison buildings solid, clean, well-insulated and
well-ventilated. Statistics show that, the average prisoner consumed
22.75 kg of grain, 20-25 kg of vegetables and considerable amounts
of pork, beef, mutton, fish, poultry, eggs and tofu in 1990. The

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average daily dietary intake of calories is 2952 Kcal per person. The
annual average living expenses for a prisoner in different regions of
the country is around 650 yuan, close to the average living standard of
the local residents.(SOURCE-

F) Prisoners have the right to maintain good health. They enjoy free
medical care and receive a regular medical checkup every year. If
they become ill, prompt medical treatment is given. Criminals
suffering from a serious disease have the right to get medical
treatment outside the prison on bail according to law. A female
prisoner who is pregnant or breast-feeding her baby may serve her
sentence outside of prison .

G) Prisoners have the right to exchange letters with their relatives and
friends and to regularly meet with family members. Prisons and
reform-through-labour institutions have special reception rooms
where prisoners can meet with their family members.

H) Prisoners have the right to an education. China's reform- through-


labour institutions have set up the facilities necessary for the
education of their prisoners, who receive a regular primary or junior
secondary education according to their individual educational
backgrounds. A prisoner with a more advanced background may
receive a senior secondary or college education.

I) Prisoners are allowed to read books, newspapers and magazines,


listen to the radio and watch TV, in order to learn about major
domestic and international events and maintain a certain amount of
contact with society outside the prison.

J) Prisoners have the right to believe in a religion. The Chinese


Government permits prisoners who are so inclined to maintain their
original religious beliefs while in custody.

220
K) Prisoners enjoy certain civil rights, including property and inheritance
rights. Property which was lawfully obtained before a criminal's
imprisonment is protected under the law. A convicted criminal has the
right to collect his earnings and dispose of his property. Criminals
have the right of inheritance under the law.

L) A prisoner's rights to a patent or copyright obtained during a prison


term are protected by law. Prisoners also have the right to sue for
divorce and the right to fight a divorce action in court.

M) The Chinese Government provides special treatment which is


different from the general prison population in terms of daily
activities, administration, labour requirements, etc. to juvenile,
female, elderly, infirm and disabled prisoners in addition to minority
nationality Chinese and foreign prisoners Prisons and reform-through-
labour institutions have special dining rooms for minority nationality
prisoners with special dietary customs.

N) A prisoner may have his sentence reduced for good behaviour or be


released on parole according to law.

O) Wardens and guards must receive special legal and vocational


training, then be certified before taking a post. It is strictly forbidden
to torture, insult or otherwise maltreat prisoners. Cases of unlawful
administering of corporeal punishment are thoroughly prosecuted.

P) Healthy cultural, recreational and sports activities are offered in


China'sPrisons and reform-through-labour institutions to create a
positive atmosphere for Bringing about change in the prisoners.

Q) The Chinese Government attaches great importance to the protection


of the civil rights of former convicts when they return to society after
serving a sentence. The government has ruled that former prisoners
are not to be discriminated against or shut out of society, and that they

221
are to be offered jobs to provide them with opportunities to study and
work and encourage them to go straight.

R) In order to solidify the successful reform of released prisoners and


prevent them from returning to crime, local governments coordinate
the efforts of the relevant departments, society at large and the
prisoner's own relatives and friends in supplementing the assistance,
education and protection provided for them.

4.10.8 Prison System in Afghanistan

Prisons in Afghanistan have a long and disturbing history of serious


abuses. Torture and other forms of ill-treatment were commonplace,
particularly in the notorious pule Charkhi prison just outside Kabul.The
Taliban arrested many political prisoners from 1996 to 2001, apparently on
account of their peaceful opposition to the Taliban’s control of the majority
of the country. Political

Prisoners or military combatants were reportedly held in Kandahar, a


prison allegedly holding several thousand prisoners. Prisoners were
reportedly forced to labour on the building of a new storey to the prison.
Some prisoners reportedly died of exhaustion or from beatings byprison
guards. Following over 23 years of armed conflict, the criminal justice
system in Afghanistan is not able to protect the rights of the people. Prisons,
an essential component of this system, are crumbling after years of neglect
and lack trained and qualified staff. While donor attention is focused
elsewhere, prison staff is struggling to accommodate thousands of people
held for long periods in poor conditions, violating basic international human
rights standards relating to the treatment of detainees.

Prisoners are being held for months in overcrowded cells, some of


them shackled, with inadequate bedding and food. Staff has received no
training and has not been paid for months. Prisoners and detainees are not

222
being held in safety, some are suffering ill-treatment or even torture. The
lack of funding allocated to prisons affects the rights of those working in the
system as well asThose being detained.

4.10.8.1 Present prison condition in Afghanistan

Afghanistan has ratified all the major human rights treaties, including
the International Covenant on Civil and Political Rights (ICCPR) , the
Convention against Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment (the Convention against Torture),the Convention
on the Elimination of All Forms of Discrimination against Women, the
Convention on the Rights of the Child.

According to the Law of Prisons and Jails in Afghanistan, currently


applicable national law, each provincial centre should have a prison and a
detention centre. Each district centre should have a detention centre.
Detention centers are under the jurisdiction of the police. Prisons are under
the jurisdiction of the Ministry of Justice. In many provinces, prisons are in
no condition to hold any person. The police are responsible for arrested
detainees for the first 72 hours of arrest, after which they should be brought
before a judge and then become the responsibility of the prison system.
Under international law, detained suspects should be brought promptly
before a judge to assess the legality of detention.

4.10.8.2 Key issues

Separation of prisoners-Afghan national law says that there should


be separate jails and prisons for women. However, in the majority of
provincial prisons, women are being held in a compound within the main
prison complex

Women- Like men and children, they are being held for months in
prisons across the country before having the legality of their detention
determined by a judge

223
Children- In Afghanistan there is a basic understanding of this
special protection and an accompanying attempt to hold children separately
from adults, although their treatment is the same. In Afghanistan, children
are being detained with their relative but there are no systems in place in
prison to care for these children.

Lack of fund and resources-While other aspects of the criminal justice


system have received international donor support since the start of 2002,
minimal resources have been provided to prisons, either by the transitional
government or by international donors. Although there are some
improvements that are relatively cost-free, the Ministry of Justice is
desperate for funds in order to begin basic reconstruction work.

Staff training In Afghanistan, the lack of professional skills, which is


apparent in many fields, is particularly acute in the area of prisons. While
some prison staff had worked in prisons before the time of the Taliban, none
had received training incorporating human rights.

Female prison staff-Prison staff in Afghanistan recognize that


women must be guarded by female prison staff, and in all the prisons that
Amnesty International visited, women staff were present, but in small
numbers.

Poor infrastructure-Across Afghanistan, prisons are in poor


condition after over 23 years of armed conflict resulting in the widespread
destruction of buildings in many cities and towns. Many prisons were
completely destroyed and as a result prisoners are now housed in inadequate
rented buildings or are held in detention centre with pre-trial detainee

Sanitation- prisons are filled with dirty overflowing toilets and no


adequate washing facilities. Poor sanitation in prisons, particularly during
hot weather, is a cause of disease.

224
Food-Prison staff have requested to government that more nutritious
food be provided for prisoners, and for themselves, recognizing that current
food is not adequate and that prisoners may suffer from malnutrition.

Medical facility-Medical rooms have been built in many prisons, but


there are no medical supplies, including even basic equipment and
medicines. The most common medical complaints amongst the prison
population are typhoid, malaria, bronchitis, kidney problems, skin diseases,
fever, headache, typhoid and tuberculosis (TB) as well as diarrhoea and
influenza.

Overcrowding-it is becoming a serious problem in many prisons and


detention centres around the country as the number of arrests increases while
so many of those in prison have not yetbeen tried nor do they have the
possibility of release on bail.

Rehabilitation and reforms- In Kandahar central prison, the


prisoners have the right to write, to blackboards, to a library service, sports
and music training. However, they lack resources and are unable to provide
them to all those in detention. Despite this, some prisoners had taken the
initiative to learn English, and teach others to read and write while others
collect materials to make handicrafts. In Mazar-e Sharif prison, literacy
classes are being provided by a member of the Ministry of Education. In
Herat prison a volunteer is providing literacy classes for the children. Such
classes are not resource intensive and should be set up in prisons and
detention centres across the country. In Kunduz prison, there had been an
attempt to start literacy classes but this collapsed due to the lack of writing
implements. An open facility is set up for children in prison at Kabul, it has
basic skills workshops. There is a carpentry workshop and classes in making
clothes and leather goods. There are also literacy lessons.

225
The Afghan Independent Human Rights Commission- (AIHRC)
has the authority to investigate human rights violations that would include
those committed in prisons. If they are willing and able, the AIHRC could
undertake this role. The AIHRC has recently established a Complaints
department also to deal with grievances.

Torture and inhuman treatment-Afghanistan has ratified the


Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and is therefore bound to uphold its provisions.

4.11 MAJOR GLOBAL PRISON PROBLEMS: A COMPARATIVE


STUDY

A majority of the world’s prison systems do not function at the level


of the United Nations’ Standard Minimum Rules for the Treatment of
Prisoners. In some countries, relevant international obligations and standards
are deliberately disregarded.

4.11.1 Prison Overcrowding

Overcrowding is a central problem in prison management around the


globe. The acute and the widespread challenges posed by the overcrowded
prisons around the world often lead to other serious problems. Overcrowded
prisons are more likely to be unsanitary, violent, difficult to control, and
much difficult to administer

IN UKRAINE for instance, the overcrowded conditions in at least


one detention facility compelled detainees to sleep in shifts.8

In Eritrea, the overcrowding in the regular prisons resulted in people


being held in irregular facilities, including unventilated shipping containers
or crowded basements without ventilation or sanitation.9

8 Report on International Prison Conditions United States Department of State • Bureau of


Democracy, Human Rights and Labor
9 Ibid

226
In Sri Lanka, it is estimated that the prison system routinely houses
approximately three times its capacity, which is believed to have contributed
to violent confrontations in recent years10

In Central America many prisons are under the supervision of the


military or local national police force – organizations which generally lack
expertise in prison operations and management. As a result, some corrections
systems are devoid of competent managers; lack standard operating
procedures or are unable to implement them, and often demonstrate a little to
nil commitment to staff training, development, and treatment. 11

In Serbia, there were over of 11,000 prisoners in a system designed for


6,500 and poor sanitation was a problem in many facilities. There were also
some reports of the physical abuse of detainees in the police custody as well
as by prison guards in some locations.12

In Chad, Amnesty International described prison conditions generally


as “so deplorable that they amount to cruel, inhuman, and degrading
treatment or punishment.” Additionally, regional detention centers had a very
limited budget for food and provided few meals for inmates. Prison guards
were not regularly paid and sometimes “released” prisoners who offered
compensation in return. 13

In Liberia, the courts’ difficulty in processing cases led to the


extended pretrial remand of hundreds of detainees in 2012. An estimated 78
percent of all prisoners in Liberia were pre-trial detainees and while the
average length of pretrial detention varied, in some cases the length of the

10 New York Times, November 11, 2012, http://www.nytimes.com/2012/11/12/world/asia/sri-


lanka-opposition- says-27-prisoners-died-in-a-massacre.html?_r=0
11 Report on International Prison Conditions United States Department of State • Bureau of
Democracy, Human Rights and Labor
12 Ibid
13 Ibid

227
pretrial detention exceeded the maximum length of sentence that could be
imposed for the alleged crime. 14

In Bangladesh, about two-thirds of the prison populations were


awaiting trial or detained for investigation, contributing to a prison
population of approximately 68,700 in 2012, almost double capacity.15

In Venezuela overcrowding has long plagued, where in 2012, more


than 45,000 inmates were imprisoned in the nationwide system designed for
the estimated capacity of 14,500 individuals, around 70 percent of whom
spend months and years in pre-trial detention awaiting a court date.

In South Sudan, despite efforts by the prison service, limited


resources and judicial capacity led to harsh, overcrowded, and the life
threatening prison and detention center conditions that resulted in the illness
and death. Lack of water reportedly led to riots in Juba Prison in August
2012, and many detention centers in the rural areas consisted of uncovered
spaces where the detainees were chained to a wall, fence, or tree, often
unsheltered from the sun.16

In Haiti, in year 2012, severe overcrowding forced prisoners to sleep


in shifts and led to significant problems relating to ventilation and sanitation.
UN observers also indicated approximately of 70 % of the prisoners and
detainees in Haiti suffered from a lack of basic hygiene, malnutrition, poor
quality health care, and water-borne illnesses.17

In Benin, the overcrowding and lack of a proper sanitation and


medical facilities posed serious risks to prisoners’ health. A 2010

14 Ibid
15. BBC News, July 27, 2012, http://www.bbc.co.uk/news/world-latin-america-19003776 The
Economist, September22,2012,http://www.economist.com/node/21563288 ICPS,
http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=224
16. Report on International Prison Conditions United States Department of State • Bureau of
Democracy, Human Rights and Labor
17 Ibid

228
ombudsman report on the conditions in the nine civil prisons there found
lack of medical care and ventilation in cramped and overcrowded facilities
led to deaths. The report, commissioned by the president, indicated the total
prison population (including the pretrial detainees and remand prisoners)
was 6,908 in a system with an official capacity of 1,900.18
In Lebanon, overcrowding was particularly acute in the central
prison in Roumieh, which operated at almost of double capacity in 2012, and
where a violent riot in year 2011 resulted in the destruction of the
infrastructure, including plumbing and central air.19
In Brazil, on May 5, 2012 four prisoners were killed during a rebellion
inside the Anibal Bruno prison in Pernambuco State, which is also
considered one of the most overcrowded in the country, with 4493 prisoners
in a facility designed for only 1448. Information released by the Ministry of
Health in Ethiopia in 2012 stated nearly 62 % of the inmates in various jails
across the country suffered from mental health problems as a result of
solitary confinement, overcrowding, and lack of adequate health care
facilities and services.20
“Western Europe” countries with relatively greater resources such as
Italy, Ireland, Belgium and France, prison overcrowding continues to be a
problem. In Italy, e.g., in 2012, 66,529 inmates were held in 206 prisons
designed to hold 47,048 people. The United Nations Office on Drugs and
Crime (UNODC) has called prison overcrowding “the most worrying
emergency that the Italian penitentiary system has to deal with.” In a recent
Chamber decision that is not yet final, the European Court of Human Rights
ruled in January that overcrowded prisons violated the prohibition of torture
and inhuman or degrading treatment under the “European Convention on
Human Rights” and ordered changes must be made within a year.21

18 Ibid
19 Ibid
20 Ibid
21 UNODC, http://www.unodc.org/documents/justice-and-prison-reform/EGM-Uploads/ITALY-
GOV-20-En.pdf

229
4.11.2 Mistreatment of Prisoners

The deliberate physical, psychological, and the sexual mistreatment of


the inmates by prison officials is also a persistent and pervasive issue of
concern. In many cases, these abuses occur in the police stations, on military
bases, or in pretrial detention facilities. Pre-trial detainees are often at
greatest risk of being mistreated, according to the Open Society Foundation
because they are often under the sole control of the detaining authorities,
who may adopt various brutal techniques to extort confessions.

In Iran, Political prisoners and prisoners of conscience are


particularly vulnerable to deliberate mistreatment.The trials often feature
coerced confessions that are used to secure convictions against prisoners of
conscience. In Iraq in 2012, a number of Vice President Tariq al-Hashemi’s
bodyguards were arrested and allegedly tortured by security officials to
obtain forced confessions against the vice president. 22

In Madagascar in, where family members of Alphonse


Rafaralahitsimba and Misa Arifetra Rakotoarivelo claimed confessions they
made against the leader of former president Marc Ravalomanana’s political
faction were extracted pursuant to electrical shock and physical violence.
The two men were subsequently sent to Ambatololma Prison.In addition, the
abusive authorities often intimidate or degrade the prisoners as a technique
to exert control over or punish political prisoners. 23

In North Korea, political detainees are routinely subjected to


systematic physical and psychological mistreatment. According to numerous
defector accounts and NGO reports, prisoners experience severe beatings,
electric shock, public nakedness, confinement in small immobile cells, and
the coercion of mothers to watch the infanticide of their newborns.24

22 Report on International Prison Conditions United States Department of State • Bureau of


Democracy, Human Rights and Labor
23 Ibid
24 Ibid

230
In Syria, the activists cited hundreds of the credible cases of security
forces allegedly abusing and torturing prisoners and detainees during 2012.
Human Rights Watch reported the government held tens of thousands of the
protestors and the activists on whom it inflicted beatings, electric shocks,
and other abuse.

In some countries, the deliberate mistreatment of the prisoners has


been an entrenched the practice for many years, creating particular
challenges for those seeking to reform and improve prisoner treatment.

InIraq, domestic and international NGOs reported common methods


of torture and mistreatment included stress positions, beatings, broken
fingers, electric shocks, suffocation, burning, removal of fingernails,
suspension from the ceiling, overextending the spine, beatings on the soles
of the feet with plastic and metal rods, forcing the victims to drink large
quantities of water then preventing urination, sexual assault, denial of
medical treatment, and death threats.

In Pakistan police sometimes tortured and mistreated those in


custody with methods that included beating with batons and whips, burning
with cigarettes, whipping the soles of the feet, prolonged isolation, the
electric shock, denial of food or sleep, hanging upside down, and forced
spreading of the legs with bar fetters. ibid25

In Cambodia, NGOs documented the torture of almost 100 prisoners


in 2012, the vast majority while in the police custody, and reported that it
was not uncommon for police to torture detained suspects until they
confessed to a crime. And while 2012 witnessed some improvements in
Burma’s overall human rights situation, security forces reportedly continued
to subject detainees to harsh interrogation techniques.26

25 Ibid
26 Ibid

231
4.11.3 Inadequate Legal Process

Prisoners are often denied the minimum legal protections and legal
process guarantees that, in the three phases of their detention or
imprisonment in the pretrial phase, at trial, and in the post-conviction stage
while they serve their sentences. A significant number of the countries deny
fair and an adequate process to detainees before they reach trial. Throughout
the world out of total population in prison about one third are behind the bars
without a conviction.

In Panama, the government regularly imprisons inmates for more


than a year before a judge’s pretrial hearing, and in some cases the pretrial
detention exceeds the minimum sentence for the alleged crime.

In Saudi Arabia, the Ministry of Interior, to which the majority of


forces with arrest power report, maintains the broad powers to arrest and
detain the persons indefinitely without judicial oversight or effective access
to legal counsel or family. In some instances, authorities held persons for
weeks, months, and sometimes years and reportedly failed to promptly
advise them for their rights, including their right under Saudi law to be
represented by an attorney. 27

In Zimbabwe, the authorities often deny the detainees prompt or


regular access to their lawyers and relocate detainees frequently, without
disclosing the new location to their families and lawyers.

In Uzbekistan, specific types of the prisoners, including those


charged with the religious or extremism charges or political prisoners were
often denied visitation by family.

In Cuba, despite the fact that the law presumes defendants to be


innocent until the proven guilty, the authorities often place the burden on the
accused to prove the innocence rather than on the prosecution to prove guilt.

27 Ibid

232
Politically motivated trials are often being held in secret, citing exceptions to
the right to a public trial for crimes involving “state security” or
“extraordinary circumstances.” Criteria for admitting evidence are often
arbitrary and discriminatory. Prosecutors routinely introduce the irrelevant or
unreliable evidence to prove the intent or testimony about the revolutionary
credentials, or lack thereof, of a defendant. Many detainees, especially those,
who have accused of the political crimes, report their attorneys have
difficulties accessing their files due to bureaucratic and administrative
obstacles. 28

In Vietnam, it is found that the Communist Party of Vietnam (CPV)


controls the courts at all levels and in many cases it determines verdicts.
Political influence, endemic corruption, and inefficiency distort the judicial
system and prison sentences. The party’s influence is particularly notable in
high-profile cases and other instances in which authorities charged a person
with challenging or harming the party or state.29

In Iran, the UN Human Rights Council and various human rights


groups, including Amnesty International, Human Rights Watch, and the
Reporters without Borders (RSF), frequently condemn the trials that
disregard international standards of fairness. The government often charges
individuals with vague crimes such as “antirevolutionary behavior,” “moral
corruption,” “siding with global arrogance,” and “crimes against Islam.”
Secret or summary trials of only five-minute duration frequently occur. 30

4.11.4 Limited access to counsel

Once convicted, many prisoners have the limited access to counsel or


others who can monitor or defend their rights.

28 Ibid
29 Ibid
30 Ibid

233
In Belarus, for instance, human rights advocates who are not
members of state-controlled bar associations have no access to prisoners and
detainees, and cannot provide them with legal advice according to the UN
Organization for Stabilization.31

In the Democratic Republic of the Congo, particularly, the


intelligence services and the Republican Guards, continue to operate
numerous illegal detention facilities to which authorities routinely deny
family members, friends, and lawyers access. 32

In Qatar, the prisoners and the detainees generally had access to


visitors but the prison officials limit access to family and legal counsel at the
state security prison. In many other countries, the prisoners are denied access
to the legal counsel throughout the period of their imprisonment.

4.12 INITIATIVES FOR REFORMS TAKEN BY SOME AGENCIES

4.12.1 INL (Bureau of International Narcotics and Law Enforcement


Affairs)

In South Sudan, INL (Bureau of International Narcotics and Law


Enforcement Affairs) has obligated $6.5 million since 2010 in support of the
country’s first prison training center for corrections officers, the Lologo
training academy. The goal of the academy is to help the National Prison
Service of South Sudan deal with one of its most pressing challenges – the
development of competent and capable corrections officers and managers.
INL has also provided the support funds to UN trainers and facilitated a
remand board for juveniles in South Sudan to reduce the pretrial backlog of
juveniles in detention.

31 Ibid
32 Ibid

234
In Mexico INL’s funding, programming, and advisory assistance is
also helping Mexico transform its federal penitentiary system. Since 2009,
INL has assisted the Mexican government with establishing its first federal
penitentiary academy, and an objective classification system to determine the
housing and the programs an individual inmate will receive based on the
individual’s threat, risk, and also the needs. The bureau has also initiated
partnerships with several U.S. federal and state corrections agencies, all of
which have been instrumental in assisting the Government of Mexico city in
achieving its goals, including receiving independent accreditation of eight
federal penitentiaries by the American Correctional Association (ACA).

In Morocco city, INL has been working with the Delegate General for
Penitentiaries and Reinsertion Administration for the last three years. As a
result of this engagement, there have been measurable and significant
changes in training and the institutional management, including
improvements in inmate classification and intake screening, the security
procedures, and inmate re-entry.

In some countries, INL sends advisors to work to improve local prison


systems.

In Brazil, for instance, INL has partnered with the state of Rondonia
and the National Penitentiary Department to design and implement a new
correctional management model that would assist the government in
professionalizing its correctional system. This training includes a full range
of the programs, from effective and humane prisoner classification models to
instruction in the emergency management and response.

In Pakistan and Afghanistan the INL provides corrections


management training, advisory support, capacity building, equipment and
the infrastructure assistance, and also facilitates the assistance for vulnerable

235
incarcerated populations, to assist them in the development and the
management of safe, secure, and humane correctional systems that could
meet international standards and norms.

In Serbia, From the several years, INL has also worked with the
Government on a program to establish a witness protection unit inside the
prison. This program includes the technical assistance in improving the
operations and the management of the prison population.

4.12.2 United States Agency for International Development (USAID)

In the limited circumstances, the United States Agency for


International Development (USAID) also has the ability to address prison
conditions through its programs.

In Haiti, Colombia, El Salvador, and Guatemala, USAID Missions


have worked to address prison overcrowding through the reforms of the
penal codes and by improving the processes such as alternative dispute
resolution to reduce the amount of time individuals spend in pre-trial
detention.

In the Caribbean and Central America, USAID has also supported


the juvenile justice reform programs aimed at reducing youth incarceration
and recidivism and separating youth from adult prison populations.

In Russia, Prior to the dismissal of USAID from in December 2012,


USAID worked with the Russian penal reform activists through its
Conditions of the Confinement program, an important vehicle for
strengthening engagement between Russian and U.S. NGOs on areas of
mutual concern surrounding prison reform. Form May 2011 to June 2012,
program participants met three times and shared best practices on a range of
issues common in both the U.S. and Russian penitentiary systems, including

236
the treatments of the inmates in the pretrial detention, prison conditions, and
overcrowding. During one of their visits to the United States, the Russian
delegation toured a municipal detention center in Baltimore, met with the
law enforcement officials at the Justice Department, and met with staff of the
U.S. Helsinki Commission and the Senate Foreign Relations Committee
(SFRC) as well as representatives from the State Department. This program
provided the requisite space for the Russian representatives of civil society
to talk openly about their shared challenges and determine the strategies for
how to apply the lessons learned back home.

In Haiti, USAID also has supported programs to improve health


conditions in prisons. USAID/Haiti, for instance, supports a Health Program
to Reduce and Control Contagious Diseases in Haiti’s prisons, which aims to
reduce the mortality and prevent the spread of the infectious diseases,
particularly cholera, HIV/AIDS and tuberculosis through adequate diagnosis
and treatment. In 2008, USAID also provided Cambodia over 650 mosquito
nets as well as food, toiletries, and drinking water to youth and pregnant
women serving sentences in the country’s prison systems.

4.12.3 The Federal Bureau of Prisons (FBOP)

It has also provided the prison reform assistance to around 17


countries. This assistance is primarily comprised of visits by foreign
delegations to BOP institutions and briefings by BOP staff on issues ranging
from inmate and staff management to prisoners’ rights and correctional
services. In some of the cases, the foreign delegation remained at one of the
BOP institutions for several days where they observed a variety of operations
and shadowed staff. In addition, BOP staffs occasionally participate in
advisory and assessment missions overseas..

237
4.12.4. The United Nations Office on Drugs and Crime (UNODC)

It is the primary international organization that seeking to address the


myriad of the global challenges associated with prisons. They are the
custodians of the UN Standard Minimum Rules for the Treatment of
Prisoners (SMRs), which is the primary set of the international norms by
which the prison conditions are evaluated. The United States supports the
SMRs, which have proven to be a valuable set of the general rules by which,
to manage the prison systems and facilities, and is an active participant in the
current review process. In addition to the SMRs, UNODC also relies on
other important international documents to advance its work in this area,
including the United Nations Standard Minimum Rules for Non-Custodial
Measures (Tokyo Rules), the United Nations Rules for the Treatment of
Women Prisoners and Non-custodial Measures for Women Offenders
(Bangkok Rules), the United Nations Standard Minimum Rules for the
Administration of the Juvenile Justice (the Beijing Rules), and the United
Nations Guidelines for the Prevention of the Juvenile Delinquency (the
Riyadh Guidelines).

UNODC carries out both country-specific and regional prison reform


projects. For instance in Kyrgyzstan, the UNODC partnered with the
government in a three-year effort to reform the criminal justice legislation,
develop a prison reform strategy, provide a training to the corrections
personnel, improve prisoner reintegration programs, and improve the
physical conditions in selected prisons. The program, which is scheduled to
end in June, has resulted in the adoption of a new national strategy on the
penal reform and the construction of the new bath and laundry facilities.

238
4.12.5 The International Committee of the Red Cross (ICRC)

The International Committee of the Red Cross (ICRC) and related


organizations also work in the co-operation with the countries seeking to
address these problems, often through government-sanctioned visits to
prisons and in private interviews with detainees. The purpose of these visits
is to ensure the governments are in compliance with the international legal
standards in their treatment of detainees. The organization’s findings and
recommendations are then communicated through confidential channels to
the relevant government officials in the hopes of improving the prison
conditions and prisoner treatment..

In December 2011, the ICRC signed a memorandum of understanding


with Bahrain’s Ministry of the Interior to allow the organization visitation
rights with the detainees based in Jaw prison, the country’s main detention
facility. One month later, a team of five delegates, including one physician,
entered the country, marking the first time in a decade that ICRC officials
have been able to monitor the places of detention. Likewise, in November
2012, the Burmese authorities have announced that following a seven-year
interregnum, the ICRC would be allowed renewed access to penal facilities
to conduct official visits with detainees. In early 2013, the ICRC conducted a
pilot visit to places of detentions in Burma and plans to conduct the
additional visits to help the government to improve the treatment of the
detainees and conditions of detention. In addition to these efforts, the ICRC
also conducts the educational seminars and conferences to assist the
countries seeking to address the prison-related challenges. In November
2012, for example, prison managers from Cambodia, Fiji, Indonesia, Laos,
Malaysia, Burma, Papua New Guinea, the Philippines, and Thailand have

239
attended a two-day ICRC seminar which had focused on how to mitigate the
source and impact of the overcrowded prisons.

4.13 STEPS BY FOREIGN GOVERNMENTS TOWARDS PRISON


REFORMS

In addition to the work of the United States and international


organizations, a wide array of foreign governments is striving to uphold their
own domestic legal responsibilities and working to follow the international
guidelines such as the Standard Minimum Rules for the Treatment of
Prisoners. Positive practices undertaken by governments include:

A number of countries have worked to address issues related to the


physical conditions in their prisons, including overcrowding.

In Benin, National Assembly passed a new Criminal Procedure Code


in March 2012 which aims to decrease pretrial detention, hasten judicial
proceedings, reduce prison congestion, and protect prisoners’ rights.

In Cameroon, the government launched a prison modernization


assessment, which resulted in the total renovation of around 47 prisons, the
construction of 27 wells, and the purchase of 10 vehicles to transport
prisoners.

In Mexico City, in year 2012, the government inaugurated two new


state-of-the-art federal facilities in Sonora and Guanajuato in an effort to
address overcrowding. The new facilities will eventually each hold 2,500
high-security prisoners. .

Some governments have taken steps to prevent the physical abuse of


prisoners, in response to ongoing problems.

240
In Japan, the government took steps to improve training for staff at
all 52 juvenile training schools following the conviction of the four
instructors who abused residents at a reform facility for juvenile offenders.

In Panamarecently, the government of has opened a Penitentiary


Training Academy to address human rights, prisoner’s rights, and
penitentiary law.

In Mongolia, the parliament took a number of steps to improve


conditions and prevent abuses in the prisons and detention centers, including
the requirement of video and voice recording equipment in interrogation
rooms, pre-trial detention centers, and prisons.

Allowing prisoners reasonable contact with visitors and respecting


prisoners’ right to freedom of religion or belief, including by permitting
religious worship, observance, and practices, are perhaps the two most
commonly respected prisoner guarantees through worldwide, including by
some governments with poor human rights records within their prison
systems.

In Lebanon, for instance, inmates can practice their religion and


receive visitors once or twice per week, with the frequency of visits
dependent on the severity of the inmate’s crime.

In Honduras, the authorities generally have permitted the inmates to


have a reasonable access to visitors and religious services of their choice.

In Zimbabwe, the prisoners are permitted religious observance, and


all the prisons engaged locally based chaplains to provide basic services.
Additionally, church groups have trained chaplains to provide religious
services and life skills classes for prisoners.

241
Many countries also have established procedures that permit prisoners
to submit complaints to the judicial authorities without any censorship,
investigate credible allegations of inhumane conditions, and document the
results of such investigations in a publicly accessible manner.

In Belgium, prisoners and detainees are able to submit complaints to


judicial authorities and the government has established the oversight
committees tasked with monitoring the conditions of detention and
informing the Ministry of Justice of their findings.

In Kenya, the magistrates and the judges made prison visits during
the year, providing an avenue for the prisoners to raise grievances. The
government has also established the court user committees, which included
paralegals and prison officials, to increase prisoners’ access to the judicial
system.

***

242
Chapter - 5

JUDICIAL APPROACH
TOWARDS PRISON
SYSTEM
CHAPTER 5

JUDICIAL APPROACH TOWARDS


PRISON SYSTEM

5.1 INTRODUCTION

Prison is a place where the criminal justice system put its entire
hopes. The correctional mechanisms, if fails will make the whole criminal
procedure in vain. The doctrine behind the punishments for a crime has
been changed a lot by the evolutions of new human rights jurisprudence.
The concept of the reformation has become the watchword for prison
administration these days. Human rights jurisprudence advocates that, no
any crime or criminal should be punished in a cruel, degrading or in an
inhuman manner. On the contrary, it is also held that any punishment that
amounts to cruel, degrading or inhuman should be treated as an offence by
itself. The transition caused to criminal justice system and its correctional
mechanism has been adopted worldwide. Here, the inquiry is made to know
the extents of the inclusion of these human rights of the prisoners into
Indian legislations.

Internationally, it has become a well accepted rule that the


correctional mechanism in criminal justice administration should comply
with reformative policies. It has also declared that all the prisoners shall be
treated with respect due to their inherent dignity and value as human beings.
There are a set of rights identified by the international legal system so as to
save the human dignity and the value of the prisoners and there by the
reformative theme of correction. It has also been strongly argued that the
community can never tolerate a scheme of correction that does not maintain

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a connection with the evilness of the crime done. Thus the punishment
always maintains the subjective perspectives. The rights of imprisoned
person have to be read despite of this perception. It is truly meant that there
can be varied punishments for same offence; but one should not be treated
as bad while the sentence once declared by the court goes on. In this
preview, the rights guaranteed that the under the international legal system
is to be looked into and legislative concern for the same in India.

The term prison has been defined by the Prisons Act, 1894 (stated
earlier in this thesis) in an exhaustive manner. Prison could be any place by
virtue of a government order being used for the detention of prisoners. Thus
even a jail will come under the definition of the prison according to this
definition. Similar definition has been given to the prison by the Prisoners
Act, 1900. These two enactments still remains the basic premises by which
the administration of the prison has been regulated. The Prisons Act
excludes the police custody and the subsidiary jails from the meaning of the
word prison. International human rights law also developed its own
concepts for the term prison. According to them, the prison can be only a
place for the treatment of convicted persons. According to the human rights
law for the protection of imprisoned person, imprisoned person means a
person deprived of the personal liberty as a result of his conviction on any
offences and imprisonments means such condition of an imprisoned person.
This will help to give clear picture with regard to the issues faced by the
prisoners in general, an under trial prisoner and a detained person.

Thus now all the dignity that human holds can also be provided
inside the four walls of prison. The traditional definition and the concept
about the prison are: unfit for the time. Prison life takes away many
freedoms from the inmates like; liberty, heterosexual relations, security
autonomy and so on. The human rights jurisprudence have contributed
much for the penal reforms and the same had its impact in India. The penal

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reforms, made all over the world, have its effects in India too. The concept
of the penal reforms had its birth from the reformative theory of
punishments. Prison of the time should have a meaning that incorporates
the reformation values into it. The reformative aspect thinks about the
incorporating human values into the prison system and the prison officials
have to work for the achievement of the same. The extent of the protection
assured by the legal system for the reformative treatment of the prisoners
should be made under a national legal frame work and India lacks the same
thing.

The modern idea about the prison has been envisaged by the judges
through the decision making process. Even the concept of open jails has
been evolved by the time. No longer can prisons be called as an institution
that delivering the bad experiences. Krishna Iyer, J opined prison as:

“A reformative philosophy, rehabilitative strategy, therapeutic prison


treatment and enlivening of prisoner’s personality through a
technology of fostering the fullness of being such a creative art of
social defense and correctional process activating fundamental
guarantees of prisoner’s rights is the hopeful note of national prison
policy struck by the constitution and the court.”

5.1.1 Concept of Human Rights and prison

Human right is a modern term but the principle that it invokes is as


old as humanity. It is that certain rights and freedoms are fundamental to
human existence. They are inherent entitlements that come to every person
as a consequence of being human, and are founded on respect for the
dignity and worth of each person. They are not privileges, nor gifts given at
the whim of a ruler or a Government. Nor can they be taken away by any
arbitrary power. They cannot be denied, nor can they be forfeited because
an individual has committed any offence or broken any law. Initially these

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rights had no legal basis. Instead they were considered to be moral claims.
In due course these rights were formally recognized and protected by law.
Often they came to be safeguarded in a country's constitution, frequently in
the form of a Bill of Rights, right to equality, etc. which no Government
could deny. In addition, independent courts were set up in which individuals
whose rights had been taken away could seek redress.

The widespread abuses of human rights and freedoms around sixty


years ago, which culminated in the atrocities of the World War between
1939 and 1945, put an end to the notion that individual States should have
the sole say in the treatment of their citizens. The signing of the Charter of
the United Nations in June 1945 brought human rights within the sphere of
international law. All Member States of the United Nations agreed to take
measures to safeguard human rights. Three years later, the adoption of the
Universal Declaration of Human Rights provided the world with a
"common standard of achievement for all peoples and all nations based on
the recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family. Human rights issues and
obligations are now an issue of the day-today conduct of almost all
governments. Over the years, since the proclamation of the Universal
Declaration of human rights in 1948, States have developed a considerable
number of human rights instruments at the national, regional and
international levels and have undertaken obligations under international and
domestic law both to promote and to protect a wide variety of human rights.

5.1.2 Human Rights In Indian Context

The Indian socio-legal system is based on non-violence, mutual


respect and human dignity of the individual. If a person commits any crime,
it does not mean that by committing a crime, he ceases to be a human being
and that he can be deprived of those aspects of life which constitutes human

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dignity.It is the human life that necessitates human rights. Being in civilized
society organized with law and a system as such, it is essential to ensure for
every citizen a reasonably dignified life. Even if the person is confined or
imprisoned because of his wrong, he is entitled to their rights unaffected by
the punishment for wrongs, simply because if a person under trial, his rights
cannot be discarded as a whole. Since independence, India had sought to
institutionalize its commitment to human rights by a deliberate choice of an
open society and a democratic policy based on universal adult suffrage,
respect for the dignity of the individual, the role of law and multi- party
system.

India has been firm in its conviction that democracy is the best
guarantor of human rights and it provides on optimal political framework
for development. Poor countries like India require a massive social and
economical transformation to conquer the ancient of poverty, ignorance and
injustice. But India believes that in order to be feasible such basic changes
have to be based on free and willing consent of the people provided by a
democracy. The institutions which India fashioned to sustain as plural,
multi – ethic, multi-religious, multi – linguistic and a secular polity had the
overreaching objectives of consulting the norms and principles of
democracy.

Indian Constitution as a matter of pride provides for comprehensive


framework to safeguard human rights giving special emphasis more on the
rights of religious, cultural and linguistic minorities. The judiciary has been
vested with special responsibility to protect human rights and the Supreme
Court as a sacred trust has accepted the protection of minorities. The
Constitution of India for fundamental rights and Directive Principles, in
Chapter III and Chapter IV respectively, so as to bring in peace and
happiness among the citizens. Some of the fundamental rights as enshrined
in the Constitution of India are:

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a) Equality before Law,
b) Prohibition of discrimination on the grounds of religion, race, caste,
sex or place of birth,

c) Equality of opportunity in matters of public employment,


d) Abolition of untouchability,

e) Freedom of speech and expression,


f) Protection of life and personal liberty,

g) Right against exploitation,


h) Right to freedom religion,

i) Cultural and educational rights, and


j) Right to constitutional remedies.

The above mentioned fundamental rights have been given so much


importance that infringement of the rights would confer right to move the
highest court of the land, the Supreme Court by way of appropriate
proceedings for enforcement of the same. The Supreme Court has been
vested with the power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quowarranto and
certiorari whichever may be appropriate for the enforcement of any of the
fundamental rights guaranteed under the Constitution of India. Besides, the
Parliament has been vested with powers to empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court as detailed above. The Constitution of
India further provides that a person whose rights have been violated has the
rights to directly. approach the High Courts and the Supreme Court for
judicial rectification, redressal of grievances and enforcement of
fundamental rights under Articles 32 and 226. By virtue of these provisions
the Supreme Court of India has expanded the ambit of judicial review to
include review of all those State measures which either violate the
fundamental rights or violate the basic structure of the Constitution. There

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are ample powers conferred by Article 32 read with Article 142 of the
Constitution to make orders which have the effect of law by virtue of
Article 141 and there is mandate to all authorities to act in aid of the orders
as provided in Article 144 of the Constitution.

5.1.3 Judicial Activism on Prison Reforms

The Indian Supreme Court has been active in responding to human


right violations in Indian jails and has, in the process, recognized a number
of rights of prisoners by interpreting Articles 21, 19, 22, 32, 37 and 39 A of
the Constitution in a positive and humane way. The Supreme Court of India
in the recent four decades has been very active against violation of the
Human Rights of the prisoners. In this area an attempt is made to explain
the some of the provisions of the rights of prisoners under the International
and National contexts and also as interpreted by the Supreme Court of India
in the light of Fundamental Rights. Through its positive approach and the
Activism, the Indian judiciary has served as an institution for providing
effective remedy against the violations of Human Rights.

Prisoners depend on prison authorities for almost all of their day to


day needs, and the state possesses control over their life and liberty, the
mechanism of rights springs up to prevent the authorities from abusing their
power. Prison authorities have to be, therefore, accountable for the manner
in which they exercise their custody over persons in their care, especially as
regards their wide discretionary powers. Disturbing conditions of the prison
and violation of the basic human rights such as custodial deaths, physical
violence/torture, police excess, degrading treatment, custodial rape, poor
quality of food, lack of water supply, poor health system support, not
producing the prisoners to the court, unjustified prolonged incarceration,
forced labour ,overcrowded prisons, prolonged detention of under trial
prisoners, unsatisfactory living condition and allegations of indifferent and
even inhuman treatment by prison staff and other problems observed by the
apex court have led to judicial activism.

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5.1.4 Role Played By Judiciary for Prisoners Protection

The Indian Judicial system has played a significant role in the


direction of protection of prisoners and also to ensure safety and security of
the people in custody or inmates or detenues. Judicial setup (especially
supreme courts and high courts) in India, under no circumstances, can pave
way for violation of human rights of the people in custody and allow
inhuman activities to go on. The jurisdiction of the judiciary system is to
see to it that the accused, whom they order to be arrested by police, is duly
informed of the grounds for his/her arrest. They should also ensure that the
nearest relative of the accused is in touch with him and the accused is
allowed to contact the legal practitioner of his own choice and appropriate
arrangements are also made to regain his freedom. It is provided in the
Code of Criminal Procedure (Cr.P.C.). The Judicial Magistrate should
enquire from the accused as to whether he/she has been informed of the
grounds of his/her arrest. This provision is made in Art.22 (1) of the Indian
Constitution.

Also on the same lines the judicial system, including the Supreme
Court of India as its Apex Body, has interpreted Art.22(2) of the Indian
Constitution to mean that the arrested person must be produced before the
Magistrate within twenty four hours of his arrest. It is further provided that
the officers responsible for the custody of the accused should produce him
before them as directed by the Constitution as well as Cr.P.C. Further, after
completion of the hearing before the Magistrate, if it is proved that the
crime is bailable, the bail should be granted and the accused be released
immediately on bail. Further, when the trial is pending in court the Judicial
system plays another role of treating the accused with dignity and directs
the authority responsible for his custody to accord human dignity to her.
Honourable Supreme Court of India has laid down that the accused in pre-
trial detention is entitled to fair and decent treatment by way of comforts

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and medical attention so that humanity is never degraded or disregarded.
Supreme Court and other courts in India have passed various rulings that
any violation of human rights during under-trial detention will be followed
by compensation for unlawful detention.

Apart from the legal rights conferred on the accused, now the bodily
conditions, in custody of police also, are required to be maintained by the
custodians. Such requirements, though may not be up to standard required,
should be at least be reasonable. The living conditions and other common
facilities provided to the accused in custody should ensure a good healthy
environment, provision of better living accommodation, separate toilets for
ladies and gents, bathrooms with basic necessities, adequate care of
children, accompanying them suitable medical facilities, education,
vocational and recreational facilities and prepare them for rehabilitation
after release. Finally, the quality of food served in custody must be good, it
should be cooked hygienically and should be well tested before it is served.
Further, the food must include well balanced diet to inmates. The jails must
be treated as reformatory Homes and not places for molesting, teasing,
torture and ill-treatment. Finally, the last role the Indian Judicial system or
machinery has to play is to set rules that indicate the human rights of the
accused in custody after considering provisions in the Universal Declaration
of Human Rights, National Human Rights Commission, constitution and
Cr.P.C. and deliver their judgments.

5.2 PRISONERS RIGHTS: EMERGING JUDICIAL TRENDS

5.2.1 Presumption of Innocence

It is requirement of a fair process under the Anglo-American system


of criminal justice, which means that-

(a) The onus to prove that the accused is guilty lies upon prosecution
and that the Court has to start with the assumption that the accused in
innocent until proved to be guilty.

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(b) The prosecution is put to strict proof, so that if there is any
reasonable doubt in the mind of the Court upon the evidence
adduced by the prosecution, the accused is entitled to the ‘benefit of
doubt’ and to be acquitted .pataki vs austria.,1
This rule, applicable to a criminal trial, is thus different from a civil
proceeding where each party has to prove his own case and the Judge has to
decide according to the standard of probability.
Held in K M .Nanavati v State of Maharashtra 2 . The principle
that the accused person is presumed to be innocent till his guilt is proved
beyond reasonable doubt is of great importance in the administration of
criminal Justice. Every criminal trial begins with the presumption of
innocence in favour of the accused; and the provisions of the Criminal
Procedure Code are so framed that a criminal trial should begin with and be
throughout governing by this essential presumption.3

5.2.2 Rights of an Arrested Person


In criminal justice administration the police through their restrictive
and coercive authority, effect arrest, interrogate, search, seize and detain
people prior to trial. All these actions affects an individual's liberty and
when done arbitrarily the individual's dignity. To prevent arbitrariness the
following safeguards have been provided.

5.2.3 Grounds of arrest, to be informed:


The Supreme Court was very clear while interpreting Art. 21 of the
4
Indian Constitution in case when the court said that, while arresting an
individual the reasons should be stated to him clearly as to why he is being
degraded in such a manner. The arrest of a person to probe her or deprive
her of personal liberty has a serious implication and it cannot be indulged

1 5 year book of European convention,804


2 AIR 1962 SC 602
3 Talab Haji Hussain v .Madhukar Purushottam Mondkar, AIR 1958 SC 376.
4 Vikram v. State (F.B.) 1996 Cri. LJ 1536,

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into lightly. The right to personal liberty of an individual is a basic human
rights. In our country, arrest are sometimes made with or without a warrant.
Art.22(1) of the Constitution lays down that the arrested person shall be
informed of the reasons for her arrest.

In Nitabar Parida5 the Supreme Court interpreted sec.167 of Cr.PC.


(1973)which contain the provisions for the arrested persons whereby the
Judicial Magistrate has to inquire whether he has been informed on the
grounds of his arrest. .

5.2.4 Access to Counsel:

As a coercive arrest violates the principle of right to life and personal


liberty of an individual, Article 22(1) of the Indian Constitution provides
that "No person who is arrested shall be denied the right to consult and to
be defended by a legal practitioner of own choice.” This legal and
fundamental right is also found in the Code of Criminal Procedure Section
303. The courts have held that from the time of arrest this right accrues to
the arrested person and he has the right to consult a lawyer of his choice.
The accused may refuse to have a lawyer but the court has to provide an
amicus curie to defend him/her in serious cases. Courts also have held that
the indigent accused has a right to legal aid. This requirement is to ensure
that poverty does not come in the way of any one getting a fair trial.

In the pastas in Betts v. Brady 6.case in which there was a concept


under criminal jurisprudence of America that only indigent persons will be
permitted to have a counsel free of cost from the Federal Government who
has committed serious offences like rape and murder. But it was ultimately
overuled by Gldeon V Weiinwright.7 the court has passed, it is of the
opinion that under the circumstances of the case stated, the necessity of the

5 AIR 1976 Cr LJ 1212


6 316 Ors 455 1942
7 372 US 335 1963

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counsel was so vital and imperative that the failure of the trial court to make
an effective appointment of the counsel was treated as denial of the due
process within the meaning of the 14th Amendment. Again after the above
case many cases followed the rule like.8

In India the origin of Prisoner Rights can be traced back in the land
mark case of A. K. Gopalan v State of Madras. The main contention
raised by the petitioner was on the phrase procedure established by law‖, as
contained in Art. 21 of the constitution; which includes a fair and
reasonable‘ procedure and not a mere procedure prescribed by the state for
the deprivation of life or personal liberty of individuals, as it was seen in
Gopalan‘s case,where he was totally deprived of his personal liberty. Even
the right to freedom of movement was not available to him, which was a
fundamental right.

5.2.5 Protection against arbitrary arrest

Arrest is such a severe penal action of the state, which automatically


and immediately deprives prisoner’s personal liberties and freedoms.
Indian Constitution has provided ample protection against arbitrary arrest or
illegal detention under Article 21 as “no person shall be deprived of his life
or personal liberty except according to procedure established by law”.
Article 22 also supplements certain procedural safeguards against such type
of arbitrary arrest or detention.

Article 22 was initially taken to be the only safeguard against the


legislature in respect of laws relating to deprivation of life and liberty
protected by Article 2 1as it was held in A.K.Gopal an v State of Madras.9

But the position of Article 21, underwent a sea change since Maneka
Gandhi v. Union of India in Kartar Singh V State of Punjab10 where
validity of several Sections of the TADA was tested in the light of Article

8 Miranda v Arizona 384 US 436 1966


9 AIR 1950 SC 27 128
10 (1994) 3 SCC 569

254
21. Now Article 21 itself has become an almost inexhaustible source of
restraint upon the legislature. Consequently, the relationship between
Articles 21 and 22 has drastically changed, rather reversed. But now the
matters on which Article 22, is silent draw their contents from Article 21.
Mahonar, Sujata, "Judiciary and Human Rights”11

The rights can be enumerated as under:-

1) Right to know the grounds of arrest.

2) Right to consult a Lawyer.

3) Right to Legal Aid.

4) Right to be produced before the nearest Magistrate.

5) Right to be released, if he is not produced before Magistrate


within twenty-four hours.

6) Right of communication with friends, family members etc.

7) Right to speedy trial.

5.2.6 Right to know the grounds of arrest

Every pre-trial prisoner must be informed about the reasons of arrest,


so that he can justify his action or omission whether he is really a guilty of
allegation made by the police authority and simultaneously he can prepare
himself for self-defense and necessary action for getting the release i.e. to
get the bail, means accused should know the reasons of arrest so that he can
evaluate action of authority that the reasons and grounds were valid or
invalid or flimsy or solid.

the right to be informed of the charge "promptly" requires that


information is given in the manner described as soon as the charge is first
made by a competent authority... this right must arise when in course of an
investigation a court or an authority of the prosecution decides to take

11 I.J.I.L. vol . 36 (1996), 39- 54.

255
procedural steps against a person suspected of a crime or publicity names
him as such....."

The nature of the accusation, however, denotes the legal character or


classification of the material facts. The norms and standards relating to
notification can serve their purpose only when notification is made in a
language which the arrested person understands.

Article 22 (1) of the Indian Constitution lays down that, no person


who is arrested shall be detained in custody without being informed as soon
as may be, of the grounds for such arrest. An arrest or detention will be
illegal, if the arrested person has not been communicated grounds of his
arrest. Analogous provisions are contained in Section 50 of the Criminal
Procedure Code.

The section provides two things, namely:

(i) The person arrested without warrant should immediately be


intimated the full particulars of the offence and grounds for such arrest; and

(ii) In the case of bailable offence, he should be informed,

(a) That he is entitled to be released on bail and

(b) That he may arrange for sureties on his behalf. This


requirement is not dispensed with, if he is admitted to bail.

Hence Muller v. Superintendent Presidency Jail, Calcutta,12 when


a person is arrested clause (1) and (2) of Article 22 authority must ensure
for the following rights :-

1) Right to be informed about the grounds of arrest

2) Right to engage advocate of own choice for consultation and


defense

3) Right to be produced before the Magistrate within 24 hours

12 1955 AIR 367, 1955 SCR (1)128428 held that

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4) Freedom from detention beyond the 24 hrs period proper order of
Magistrate only

5) Right to be released from detention .

In the case of D.K.Basu v. State of West Bengal13 following


guidelines are given to be followed in cases of arrest or detention by the
concerned Authority:-

1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
identification and nametags with their designations. The particulars
of all such police personnel who handle interrogation of the
arrestee must be recorded in a register.

2) That the police officer carrying out the arrest of the arrestee
shall prepare a memo of arrest at the time of arrest and such memo
shall be attested by at least one witness, who may be either a
member of the family of the arrestee or a respectable person of the
locality from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the time and date of
arrest.

3) A person who has been arrested or detained and is being held in


custody in a police station or interrogation centre or other lock-up,
shall be entitled to have one friend or relative or other person
known to him or having interest in his welfare being informed, as
soon as practicable, that he has been arrested and is being detained
at the particular place, unless the attesting witness of the memo of
arrest is himself such a friend or a relative of the arrestee.

4) The time, place of arrest and venue of custody of an arrestee must


be notified by the police where the next friend or relative of the
13
50 AIR 1997 SC 610

257
arrestee lives outside the district or and through the Legal Aid
Organization in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the
arrest.

5) The person arrested must be made aware of this right to have


someone informed of his arrest or detention as soon as he is put
under arrest or is detained.

6) An entry must be made in the diary at the place of detention


regarding the arrest of the person which shall also disclose the
name of the next friend of the person who has been informed of the
arrest and the names and particulars of the police officials in whose
custody the arrestee is.

7) The arrestee should, where he so requests, be also examined at the


time of his arrest and major and minor injuries, if any, present on
his/her body, must be recorded at that time. The "inspection
Memo" must be signed both by the arrestee and the police officer
carrying out the arrest and its copy provided to the arrestee.

8) The arrestee should be subjected to medical examination by a


trained doctor every 48 hours during his detention in custody by a
doctor on the panel of approved doctors appointed by Director,
Health Services of the concerned State or Union Territory, Director,
Health Services should prepare such a panel for all Tehsils and
Districts as well.

9) Copies of all the documents including the memo of arrest, referred


to above, should be sent to the Magistrate for his record.

10) The arrestee may be permitted to meet his lawyer during


interrogation, though not throughout the interrogation.

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11) A police control room should be provided at all district and State
headquarters, where information regarding the arrest and the place
of custody of the arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the arrest and at the
police control room it should be displayed on a conspicuous police
board.

5.2.7 Right to have Interview with Friends, Relatives and Lawyers

In Sheela Barse v. State of Maharashtra,14 the court held that inter


views of the prisoners become necessary as otherwise the correct
information may not be collected but such access has got to be controlled
and regulated.

In Dharambir v. State of U.P15 the court directed the State


Government to allow family members to visit the prisoners and for the
prisoners, at least once a year, to visit their families, under guarded
conditions.

5.2.8 Right to engage Lawyer

In Hussainara Khatoon v. Home Secretary16, Bihar, the Supreme


Court has held that it is the Constitutional right of every accused person
who is unable to engage a lawyer and secure legal services on account of
reasons such as poverty, indigence or incommunicado situation, to have free
legal services provided to him by the state and the state is under
Constitutional duty to provide a lawyer to such person if the needs of
justice so re- quire. If free legal services are not provided the trial itself may
be vitiated as contravening the Article 21.

14
JT 1988 (3) 15
15
2010)5SCC344
16
1979 AIR 1369, 1979 SCR (3) 532

259
It is presumption that every pre-trial prisoner may not be aware of
legal provisions or the nature of act or offence done by him thus to provide
him the sound knowledge of legal technicalities, the help of legal expert is a
condition precedent to save such person and to prepare the grounds for
saving him from the wrongful conviction. Thus legal counsel services of
legal counsel are an earliest opportunity subsequent to the detention for the
protection of Human Rights of pre-trial prisoners. The non-availability of
an advocate may lead the whole matter in wrong direction as may be
predetermined by the police authority against the accused. Moreover it is
also essential that the accused may be made conscious prior to give any
statement or interrogation or precise conversation under the pressure of
police authority wrongfully. Article 14 of the Covenant provides a
competent counsel who must be well-qualified and experienced to represent
the matter of accused in proper manner.

It was held in Moti Bai v. State17 Neither the Article 22, guarantees
any absolute right to provide a lawyer by the State nor does the clause
confer any right to engage a lawyer who is much competent to represent the
accused. The right guaranteed is only to have the 'opportunity' to engage a
competent legal practitioner of his choice. It has been further held that this
right to counsel is not limited only to the persons arrested but can be availed
of by any person who is in danger of losing his personal liberty.

The Criminal Procedure Code has specifically recognized the right to


be defended by a pleader of his choice. Section 303 contemplates that the
accused should not only be at liberty to be defended by a pleader at the time
the proceedings are actually going on, but also implies that he should have a
reasonable opportunity, if in custody, of getting into communication with
his legal advisor for the purpose of his defense

17 AIR 1954 Rajasthan, 241

260
In Kailash Nath V Emperor,18 interpretation was made that The
accused must therefore get reasonable opportunity to communicate with the
lawyer while in police custody. The consultations can be within the
presence of the police but it would be unreasonable and unjust to have them
within the hearing of the police.

It is to be noted that Section 303 does not confer a right on the


accused person to be provided with a lawyer by the State or by the police or
the Magistrate. That is a privilege given to the accused person and it is his
duty to ask for a lawyer, if he wants to engage one, or to engage one
himself, or get his relations to engage one for him. The only duty cast on
the Magistrate is to afford him the necessary opportunity.

Thus, an accused who have right to consult a legal advisor of his


choice, as soon as he is arrested and who have an interview with the lawyer
out of the hearing of police.

5.2.9 Right to Legal Assistance

The Indian Constitution does not expressly provide the Right to


Legal Aid. But the judiciary has shown its favour towards poor prisoners
those who are not in a position to engage the lawyers of their own choice
because of their poverty. In M.H. Hoskot v. State of Maharastra19 the
Supreme Court laid down that right to free legal aid at the cost to the state
to an accused who could not afford legal services for reason of poverty,
indigence situation was part of fair, just and reasonable procedures implicit
in Article 21. a three Judges Bench (V.R.Krishna Iyer, D.A.Desai and
O.Chinnappa Reddy, JJ) of the Supreme Court reading Articles 21 and 39-
A, along with Article 142 and Section 304 of Cr.PC together declared that
the Government is under duty to provide legal services to the accused
persons

18 AI R 1947 AII 436 at 438


19 1978 AIR 1548,

261
“Where in trial before the Court of Session, the accused is not
represented by a pleader, and where the accused has not sufficient means to
engage a pleader the court shall assign a pleader for his defense at the
expense of the State.”

Because of worldwide revolution in legal field specifically, in Britain


and United State of America, for providing free legal aid to poor and needy
people, by active recommendations of certain NGO’s, Bombay Legal Aid
Committee, and judicial activism, Central Government finally enacted the
Legal Services Authorities Act, 1987, to help poor citizens of India to make
them able to have free legal aid and advice. Presently at all District and
Taluka level the formation of such committees is done and they are working
to help the accused absolutely free of cost for the fulfillment of this basic
right to get free legal aid
20
Parallelly, in case of Haryana v. Ram Diya the counsel was
absent who was appointed by the Court for the accused at the time of
hearing and the matter was disposed of without hearing him. The Apex
Court remanded the matter for fresh hearing. In another case of Iyron
Naznath v. State of Maharashtra21 it was held that during the trial the
legal aid had not been provided to the accused hence trial was considered as
illegal. Supreme Court has made the following observations in Ranchod
Mathu Wasawa V State of Gujarat.22

"We find nook guild and refuse special leave. Even so, we are
disturbed, having a look at the proceedings in this case, that the Sessions
Judges do not view with reason to disagree with the finding sufficient
seriousness the need to appoint State counsel for undefended accused in
grave cases. Indigence should never be a ground for denying fair trail or

20 1990 Cri .L.J. 1327 (S C)


21 1989 Cri . L.J. 123 (Bom.)
22 (1974) 3 SCC 581 :-

262
equal justice. Therefore, particular attention should be paid to appoint
competent advocates equal to handing the complex cases, not patronizing
gestures to law entrants to the Bar. Sufficient time and complete papers
should also be made available, so that the advocate chosen may serve the
cause of justice with all the ability at his command."

The Supreme Court in Hussainara Khatoon's case elevated the


right to legal aid to the status of fundamental right implicit in Article 21 of
the Constitution. In another landmark judgment Supreme Court observed
in State of Maharashtra Vs Manubhai Pragji Vasi.23

"The right to free legal services is, therefore, clearly an essential


ingredient of "reasonable, fair and just' procedure for a person accused of an
offence and it must be held implicit in the guarantee of Article 21.

In addition to that in well-known case of Khatri v. State of Bihar24,


it was held by the Supreme Court that because of shortage of funds or
administrative inabilities the state cannot escape from providing free legal
aid to the accused. It is a Constitutional obligation of state to provide free
legal aid.

Hon'ble Mr. Justice Bhagwati and Sen, JJ. had observed in this
case that “The Magistrate or the Sessions Judge before whom the accused
appears must be held to be under an obligation to inform the accused that if
he is unable to engage the services of a lawyer on account of free legal
services at the cost of the State, unless he is not willing to take advantage of
the free legal services provided by the State."

While deciding in Delhi Domestic Working Women's Forum v.


Union of India25 the hon’ble Supreme Court dealing with the problem of
legal representation in sexual assault cases held

23 AIR 1996 SC 1
24 1981 AIR 1068
25 (1995) 1 SCC 14

263
"It is important to have someone who is well-acquainted with the
criminal justice system. The role of the victim's advocate would not only be
to explain to the victim the nature of the proceedings, to prepare her for the
case and to assist her in the police station and in court but to provide her
with guidance as to how she might obtain help of a different nature from
other agencies, for example, mind counseling or medical assistance." The
Supreme Court further observed26

"The police should be under a duty to inform the victims of her right
to representation before any questions were asked to her... A list of
advocates willing to act in these cases should be kept at the police station
for victims who did not have a particular lawyer in mind or whose own
lawyer was unavailable."

5.2.10 Right to be produced before the Magistrate

Initially this principle is recognized in criminal jurisprudence but to


safeguard the Human Rights of accused this has been categorically
redefined enforced for the protection of Human Rights of accused by the
law. In other words it is judicial review of the police action which is an
independent authority to decide the action of police officer of arrest was
just and fair or illegal and arbitrary. The Constitution has taken care of an
arrested person in Govinda Prasad v. State of West Benga27l, Case the
Court Upheld Art.22(2) and said that "Wherever a person is arrested by
police or anyone, authorized to execute the duty for the Government, he
shall be told the grounds of his arrest and shall be produced before the
Magistrate within 24 hours of arrest and shall not be denied to consult a
legal practitioner of his choice." The same is given in Cr.P.C. Sect.56, 57,
76, 80, 167(1).

26 Ibid
27 1975 Cr LJ 1249

264
Section 56 and 57 of the Criminal Procedure Code contain more or
less the same provisions as is contained in Article 22(2) of the Constitution.
According to Section 56 a police officer making an arrest without warrant
must take or send the person arrested before a Magistrate having
jurisdiction in the case, or before the officer in charge of a police station.
This duty of the police officer is subject to the provisions contained in the
Code as to bail. While the time given in Article 22(2) is twenty four hours,
Section 56 requires taking or sending of the arrested person without
unnecessary delay. Section 76 provides a similar rule in substance in case of
arrest under warrant.

On a police officer arresting a person the arrested person would not


be kept in any place other than a police station before he is taken to the
Magistrate. The object of Section 56 is that such a person should not be
detained for more than twenty four hours in police custody in absence of a
special order of a Magistrate.

5.2.11 Right to be released, if not produced before the Magistrate

The Human Rights committee has taken the view that the term
"arbitrary" is used in the Covenant in a wider sense .Held in Hugo Van
Alphen v. The Netherlands28 It is not synonymous with "against the law",
but "must be interpreted more broadly to include elements of
inappropriateness, injustice and lack of predictability.

An arrest or detention is arbitrary if it is,

a) On grounds or in accordance with procedure other than


those established by law,
b) Under the provisions of a law the basic purpose of which is
incompatible with respect for the right to liberty and
security of person.”

28 (305 /1988) 23r d Jul y, 1990

265
As per the provisions of Indian Constitution, Article 22 (2) the
clarity about arrest with warrant and without warrant is described. But in
State of Punjab v Ajaib Singh.29 It was decided by Supreme Court that
the article provides provision to arrest accused with warrant only. The logic
behind this case of an arrest, is to provide safeguard to the Human Rights of
accused in absolute terms. This view appears to be unreasonable and wrong.
Provisions similar to Article 22(2) are also contained in Section 57 of the
Criminal Procedure Code. In Bal Krishna v. emperor30, it was held that
Magistrate is an authority who evaluates the presentation made by the
police officer as well as by the lawyer of accused. Police officer pleads the
ground for obtaining the remand where as the lawyer of accused, try to
oppose the same. On being hidden facts to be exposed before the Magistrate
and the Magistrate has to take a balance view between two presentations
and to pass the necessary order.

As per much renounced judgment of D.K.Basu v. State of Bihar,


the accused is provided a series of right among which, a medical aid in
health of medical officer is a specific condition to verify the physical
condition of accused in police custody.

5.2.12 Right of Communication to detenue

As decided by the Supreme Court in D.K.Basu, the information of


arrest is required to be given to the friend or relative of accused
immediately, while he is arrested. The purpose is very clear that, by this
communication the relative or friends of accused can start the efforts to
know the facts of accused, to obtain the legal advice and take the defense
against an application for remand and do the necessary preparation for bail.

29 AIR 1953 SC 10
30 33 Cr . L.J., 180

266
In interesting case of Francies Coralie Mullin v. Union Territory
of Delhi31 wherein a British National was detained in Tihar Jail of Delhi
for the offence related to foreign exchange. The one of the issue was to
permit the accused to have communication with sister and his daughter as
per the Punjab Jail Manual, having its application in Delhi accused was
permitted to meet friends and relatives once in a month.

5.2.13 Right to Speedy Trial

Since the primary principle of having the presumption of innocence


on the part of accused, the right to speedy trial is a device to prove the
innocence of accused in speedy manner if he is really innocent. So the basic
idea behind the concept of speedy trial is, to release the person if innocent
from the charges of offence. Again Criminal Procedure Code has no
assurance for speedy trial. Of course U/s. 437 (6) if accused is in detention
and charge-sheet is not completed within 60 days, he is permitted to be
released on bail.

Sec. 309 (1) provides as under:-

"In every enquiry or trial the proceedings shall be held as


expeditiously as possible, and in particular, when, the examination of
witnesses has once begun, the same shall be continued from day to day until
all the witness in attendance have been examined, unless the court finds the
adjournment of the same beyond the following day to be necessary for
reasons to be recorded."

It is in the interest of the accused and the community at large both


that the criminal proceedings come to a reasonable quick end. Union of
India v. Ashok Kumar Mitra32, In a significant judgment, the Supreme
Court also held that "when the judge is fairly certain that there is no

31 1981 1 SCC 608


32 AIR 1995 SC 1976 a t 1978;

267
prospect of the case ending in conviction, the valuable time of trial court
should not be wasted for holding a trial only for the purpose of formally
completing the procedure to pronounce that conclusion on a future date",

Inordinate delay in trial is both unjust and oppressive.33

Justice Bhagwati has also stressed the fact, in the following


observation,34

"The State is under a Constitutional mandate to ensure speedy trial


and whatever is necessary for this purpose has to be done by the State. It is
also the Constitutional obligation of this court, as the guardian of the
fundamental right of the accused to speedy trial by issuing necessary
directions to the State which may include taking positive action, such as
augmenting and strengthening the investigative machinery, setting-up new
courts building new court houses, providing more staff and equipment to
the courts, appointment of additional judges and other measures calculated
to ensure speedy trial."

In a case Kadar Pahadiya v. State of Bihar35 large number of


cases involving accused, charged with serious and non-serious offences,
mentally retarded persons and others have come up before the Supreme
Court and I was held that all persons awaiting trial for long can move to the
Supreme Court which will give necessary direction in the matter.

In Joginder Kumar v.. State of U.P.36 the Supreme Court observed


that the above guidelines are merely the incidents of personal liberty
guaranteed under the Constitution of India. Elaborating the guidelines
further the Court observed.

33 The Hindstan Times, New Delhi , 5t h A ug ust, 1996.,


34 supra
35 (1983) 2 SCC 104
36 1994 AIR 1349,

268
“In above objects the discussion about the pre-trial prisoners is done
at length under the focus of provisions of international Covenant, Indian
Constitution, and Criminal Procedure Code etc. and also Constitutional
Provisions regarding the safeguarding of Human Rights of under-trial
prisoners.”

Right to equality "the state shall not deny to any person equality
before the law and equal protection of the laws within the territory of India.
it was held in Indra Swahney v. Union of India, 37The doctrine of equality
is a dynamic and evolving concept and it is applied to prisoners also within
legal limits.

Though the mere object of securing a speedy trial may not be a


reasonable basis for providing a discriminatory procedure for certain
offence. it was held in Hanumantha v. State of A. P., 38would be a valid
basis for classification if, the need for a speedy trial has a reasonable
relation to the object sought to be achieved by the legislation. such one of
the object was interpreted by supreme court in State of W .B. v. Anwar
Ali,39 which requires taking prompt action against bribery and corruption
which had become rampant at a particular point of time in prison.

5.2.14 Prohibition of applying ex post facto law

The basic principle of law is that no law will impose any penalty
until any violation of law is done. This principle is established in the theory
given by " Nula Pina Syayana Legnia ". In other words, any act or omission
which may be immoral, unwanted or against the society if not falls within
the preview of judicial adjudication or under any act if it is not an offence,
it is not punishable. Thus any immoral or illegal or forbidden, wrong which
is not covered as a violation of legal provisions is not punishable and thus

37 AIR. 1993 SC. 477


38 AIR 1957 S.C. 927.
39 (1952) S.C.R. 284 (314, 328)

269
the prospective of retrospection of law is accepted by the Constitution vide
Article 20 (1). It prohibits (i) the making of ex-post-facto criminal law as it
was approved in case Nayyar v. Delhi Admn40 i.e. making an act a crime
for the first time and then making that law retrospective;it was followed in
Shiv Bahadur v. State of U. P.41 108 (ii) the infliction of a penalty greater
than that which might have been inflicted under the law which was in force
when the act was committed. Kedar Nath v. St ate of Punjab42,

The aspect is that the prescription is only regarding the conviction or


sentence under an ex-post-facto law and not for the trial. In other words, a
trial can be conducted and subsequently any trial is to be decided that since
it was a retrospective law as well as it is not punishable. .it was held in
State of W .B. v. S.K.G hose,43 As far as the civil and revenue charges are
concerned this benefit is not available .

5.2.15 Protection against double jeopardy

It can be described as immunity from the double punishment which


is popularly known in legal terminology as double jeopardy. The Roman
maxim of Autrofied Convict (formerly convicted) or Autrofied Activit
(formerly acquitted) is applicable here.

As per the theory of punishment, offence plus punishment is equal to


innocence, means innocence is obtained by either the punishment which the
accused has suffered or has been acquitted, as if he is not an offender or as
an innocent person.

This principle was initially accepted in Criminal Procedure Code


1898, Section 403 and Criminal Procedure Code 1973, Section 300. The
same thing is provided a principle in General Clause Act, 1897, U/s. 26.

40 AIR 197 9 S.C. 602 (para .7)


41 AIR 1953 S.C. 3 94,
42 AIR 1953 S.C. 404.
43 AI R 1963 S. C. 255

270
This principle is not accepted for the punishment imposed by
Administrative Tribunals, Departmental Inquires or for the offences of
Alien Enemy as well as for detentions under preventive detention.

Important judicial pronouncement related to this application are -

(a) it was held in Maqbool v. State of Bombay44 as well as in Asstt.


Col lector v. Malwani,45 it is essential that previous proceedings must have
taken place before a Court of Law or a judicial tribunal of competent
jurisdiction entrusted with full judicial powers.

(b) it was held in Thomas v. Stat e of Punjab46, that The person


must have been 'prosecuted' in the previous proceeding means judicial
proceedings must have started formally.

(c) The conviction (or acquittal) 115 in the previous proceeding must
be in force at the time of these contrail. ibid

(d) it was held in State of Bombay v. Apte47, thatthe subject-matter


of the second proceeding must be the same as that of the first proceeding,
for which he was 'prosecuted and punished'.

The subsequent proceeding must be a fresh proceeding where he is,


for the second time, sought to be 'prosecuted and punished' for the same
offence. Hence, the clause has no application where the subsequent
proceeding is a mere continuation of the previous proceeding, as it was held
in in the case of Kalawati v. State of H.P.48 an appeal against acquittal or
against conviction is not prohibited. Nor does it bar a retrial, on appeal,
with a direction to reframe the charges, provided the retrial is confined to
the same offence or offences for which he had been tried at the original
trial.

44 (1953) S.C.R. 730


45 AIR 1970 S.C. 962
46 AIR 1959 S.C. 3 75
47 AIR 1961 S.C. 578
48 (19 53) S.C.R. 546

271
5.2.16 Protection against self incrimination

Article 20 (3) provides “no person accused of any offence shall be


compelled to be a witness against himself”.

The basic idea of this provision is to protect the Human Rights of an


individual that, the authority may not compel the accused to be himself a
witness against himself. Because many time it has been observed that the
authority compels to provide evidences or documentary proofs which may
prove evidence against the accused himself either in initial procedure of
investigation or in process of preparation of charge sheet or at the time of
trial.

The word compulsion, involves the sense of pressure executed or


exercised by the authority, on the accused means any type of inducement,
treat, emption or promise which may be exercised immediately or may be
reacted by the authority subsequently. The compulsion may however be
physical or mental, in well-known case of Sharma, M.P. v. Satish
Chandra49 130 the Supreme Court made a distinction between a person
being compelled to do a involuntarily act and something being obtained
from him without involving any involuntarily act on his part and held that
the immunity offered by Article 20(3) is confined to the former case and is
not available in the latter. it was further remarked while explaining the
concept -

“It is on this principle that the Court held that the immunity is
available to an accused person, when a compulsory process or notice is
issued, directing him, under pain of penalty, to produce a document, but not
when a document is recovered from him by search and seizure by a police
officer without involving any volitional act on the part of the accused from
whole possession the document is recovered.”

49 1954 SC R 1077 : AIR 1 954 SC 300

272
Supreme in case of State of Bombay v. Kathi Kalu Ogadh50
explained the scope and held that that by obtaining such finger prints or
specimen signature the violation of Article 20(3) is not done by the
authority. As the case may be many times during the interrogation or
investigation by the police authority the evidences against the accused are
collected by pressure for collecting certain finger prints or thumb
impression or copy of specimen signature, it is part of investigation and
hence no rule is violated.

5.2.17 Right to life and personal liberty

Article 21 provides “No person shall be deprived of his life or


personal liberty except according to procedure establish by law .This is very
important and primary principle or concept available to an accused against
the arbitrary arrest or unlawful detention, without proper procedure of law
by the police authority. In many cases the personal liberties are considered
an essential Human Right, among all other Human Rights.

In case of C.F. Union of India v. Indo-Afghan Agencies51 held that


the doctrine of “state necessity” is not applicable in India, In other words, a
state is never authorized to do any unlawful detention or arrest likewise it is
done in other countries as a state necessity.

On the contrary in case of Makhan Singh Tarsikka52 it was


directed by the Apex Court that the procedure established by the law must
be strictly followed by the police authority and accused must not be
departed from the disadvantage of lacunae procedure. Same way in
Maneka Gandhi v. Union of India,53 the Apex Court opened the new
dimensions and horizons of imposition of limitation on three major aspects
namely,

50 AIR 1961 SC 1808 142


51 AIR 1868 S.C. 778 : 1968 (2) SCR
52 1952 SCR 3 6 8
53 AIR 1978 SC 597

273
a) Making upon any adverse law,
b) Framing or prescribing any rules and regulations which may be
prescribing a procedure for depriving a person of his personal liberty
or his life,
c) Taking any action by the government machinery.

In other words in maneka case the restriction was imposed on State


either implementing any wrong enactment, establishing wrong procedure by
implementing new rules and regulations. In total, the whole procedure must
be just fair and reasonable .ibid whenever any complaint is received by
person regarding the deprivation of his life or personal liberty the court is
supposed to exercise the Constitutional power of judicial review whether
there is a law authorizing such deprivation or of the procedure because of
which the personal liberty of life is curtailed was reasonable, fair or just or
was not arbitrary, whimsical, fanciful. Ibid The protection of article 21 is
extendable to all citizens and also to non citizens of India

In case of Chairman Railway Board v. Chandima Das, the facts


of the case were regarding a gang rape on Bangladeshi lady, by railway staff
and it was considered to be a serious offence. She was a non-citizen lady,
she was been granted compensation.it was held in State of Maharashtra v.
Prabhakar Pandurang Sanzgiri54, that The benefit of this article 21 that is
right to lige and personal liberty is further extended to persons who are pre-
trial, under-trial or convicted prisoners in jail.

5.2.17.1 Scope of right to life and personal liberty extended by apex


court

The word “deprived “was interpreted in case of of A.K. Gopalan v.


State Madras which means the total loss of a personal liberty of right to
move freely. later on the scope of word was extended in Kiran Pasha,

54 AIR 1966 SC 424 (426): 1966 (1) SCR

274
S.M.D. v. Govt. of A.P55, and it was considered that deprivation is
something more than physical restraint because instead of waiting for
violation of physical restraint the court can interfere in cases of an
imminent threat to the personal freedom of life or personal liberty.

The Apex Court has established certain instances when the personal
liberty is deprived which are as follows-

(a) In Kharak Singh v. State of U. P., AIR 1963 SC12 95 (1300)


held by supreme court that home is a place of living for man and his family
where, he can stay with all personal liberty and peace of life. So the
domiciliary visits of the police at night creates the nuisance and disturbance
and it is also considered as violation of personal liberty.

(b) A jailor cannot restrain a prisoner to publish a book outside the


jail because he is a prisoner. it is his basic right which can’t be taken back.56
57
It was held in State of Maharashtra v. Chandrabhan, that The
word “life” has been given very glorious and enshrined approach in Article
21, because the life is not mere survival of a human body or animal
existence, but it includes to live with human dignity.

While extending scope of right to life and personal liberty the


emphasis is given on meaningful complete and worth living life of a man as
narrated by D.D.Basu. thus it include -

(a) In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC


802 apex court pronounced that a person has protection against forced
labour means they are not subjected to 'bonded labour' or to unfair
conditions of labour.

55 (1990) 1 SCC 328


56 Supra note 147
57 AIR 1983 SC 803

275
(b) it was upheld in Olga Tellis v. Bombay Corpn.58, that every
person has Right to livelihood by means which are not illegal, immoral or
opposed to public policy.

(c) In Shanti star Builders v. Narayan Khimalal59, held Right to a


decent environment and a reasonable accommodation is essential for a
dignified survival.

(d) In murli deora vs union of india60 held that the right to an


environment, free from smoke and pollution follows from the 'quality' of
life, which is inherent in the guarantee offered by Art.21.

(e) In Pramanand Katara v. Union of India,61 an obligation was


imposed upon the State to preserve the life of every person by offering
immediate medical aid to every patient, regardless of the question whether
he is an innocent or a guilty person.

(f) Held in L.I.C. of India v. Consumer Education & Research


Centre,62 it is Right to the appropriate life insurance policy within the
paying capacity and means of the insured.

(g) The right to good health held in parmanand katara’s case.

(h) In Chameli Singh v. State of U. P63. apex court held that Right
to guarantee in any civilized society implies the right to food, water, decent
environment, education, medical care and shelter.

(i) State of Punjab v. Baldev Singh,64 As applied to a prisoner, it


would include his right to the bare necessities of life such as adequate

58 AIR 1986 SC 180


59 AIR 1990 SC 630
60 2001 Supp(4) SCR 650
61 AIR 1989 SC 2039
62 (1995) 5 S CC 482 (para 18)
63 AIR 1996 SC 1051
64 AIR 1999 SC 2378

276
nutrition, clothing, shelter over the head, facilities for reading, writing,
interviews, with members of his family and friends, subject to, prison
regulations.

(j)In Satwant Singh Sawhney v. Asst. Passport Officer,65 The


supreme court extended the scope of right to travel to travel abroad, is
basic right to life i.e., to move out of India, and to return to India

(k) The right of a prisoner to a speedy trial;66

The above rights were very categorically discussed by the Supreme


Court in many landmark cases.
67
The Supreme Court in Unni Krisnan v. State of A.P. stated that,
several enumerated rights fall within Art.21, since the expression 'personal
liberty' has the widest amplitude. In that case the Court itself gave the
following list of the rights covered under Art.21.

5.2.18 Right against police torture

In Kishore Singh VS. State of Rajasthan,68 the Supreme Court held


that the use of third degree method by the police is considered as part of
violation of Article 21. The court also directed the Government to take
necessary steps to educate the police so as to inculcate a respect for the
human person. In the instant case the Supreme Court brought home the
deep concern for Human Rights by observing against police cruelty in the
following words: “Nothing is more cowardly and unconscionable than a
person in the police custody being beaten up and nothing inflicts a deeper
wound on our Constitutional culture that a state official running berserk
regardless of the Human Rights.”

65 AIR 1967 SC1936 (1844- 45)


66 ibid
67 1993 AIR 217
68
1954 CriLJ 1672

277
5.2.19 Rights against Hand Cuffing

In Prem Shankar v Delhi Administration,69 Justice V.R. Krishna


Iyer held that hand cuffing is prima facie inhuman and therefore,
unreasonable, is over harsh and at the first instance, arbitrary. The Supreme
Court found the practice of using handcuffs and bar fetters on prisoners
violating the guarantee of basic human dignity, which is part of the
constitutional culture in India .The Supreme Court observed:

“To bind a man hand-and-foot’, fetter his limbs with hoops of steel;
shuffle him along in the streets, and to stand him for hours in the courts, is
to torture him, defile his dignity, vulgarise society, and foul the soul of our
constitutional culture”. Strongly condemning handcuffing of prisoners as a
matter of routine, the Supreme Court said that to “manacle a man is more
than to mortify him, it is to dehumanize him, and therefore to violate his
personhood….” The rule thus laid down was reiterated in the case of
Citizens for Democracy vs. State of Assam & Ors.

5.2.20 Rights against Inhuman Treatment

The Supreme Court of India in several cases has taken a serious note
of the inhuman treatment on prisoners and has issued appropriate directions
to the concerned authorities for safeguarding the rights of the prisoners. The
Supreme Court read the right against torture into Articles 14 and 19 of the
Constitution. The Court observed that “the treatment of a human being
which offends human dignity, imposes avoidable torture and reduces the
man to the level of a beast would certainly be arbitrary and can be
questioned under Article 14”. In the Raghubir Singh v. State of Bihar,70
the Supreme Court expressed its anguish over police torture by upholding
the life sentence awarded to a police officer responsible for the death of a

69 1980 AIR 1535


70 1987 AIR 149

278
suspect due to torture in a police lock – up. In Kishore Singh v. State of
Rajasthan71 the Supreme Court held that the use of third degree method by
police is violative of Article 21.The decision of the Supreme Court in the
case of D.K. Basu is noteworthy. While dealing the case, the court
specifically concentrated on the problem of custodial torture and issued a
number of directions to eradicate this evil, for better protection and
promotion of Human Rights. In the instant case the Supreme Court found
custodial torture “a naked violation of human dignity” and ruled that law
does not permit the use of third degree methods or torture on an accused
person since “actions of the State must be right, just and fair, torture for
extracting any kind of confession would neither be right nor just nor fair”.

5.2.21 Rights against Solitary Confinement and Bar Fetters

The courts in India have consistently taken the view that imposition
of solitary confinement is highly degrading and dehumanizing effect on the
prisoners. It can be imposed only in exceptional cases where the convict
was of such a dangerous character that he must be segregated from the other
prisoners. The Supreme Court in Sunil Batra considered the validity of
solitary confinement. The Supreme Court has also reacted strongly against
putting bar fetters to the prisoners. The Court observed that continuously
keeping a prisoner in fetters day and night reduced the prisoner from human
being to an animal and such treatment was so cruel and unusual that the use
of bar fetters was against the spirit of the Constitution of India.

“The law of arrest is one of balancing individual rights, liberties and


privileges on the one hand and individual duties, obligations and
responsibilities on the other, of weighing and balancing the rights, liberties
of the single individual and those of individuals collectively………”.

71 1981 AIR 625

279
5.2.22 Right against delayed execution.

It is basic right of an individual for execution of punishment which


has been imposed upon him by the court it was held in Vatheeswara n, T.V.
v. State o f T.N.72

Police visit, at residential place of victim is unlawful disturbance on


the privacy of accused and his family. Telephone tapping is also a
violation of personal liberty which is restricted and unlawful.

5.2.23 Invasion on right to privacy

Telephone tapping constitutes a serious invasion of an individual’s


right to privacy. The questions posed above have been fully considered by
the Supreme Court in People’s Union for Civil Liberties v. Union of
India. In this case Public Interest Litigation was filed protesting rampant
instances of phone tapping of politician’s phones by CBI. The court ruled
that ‘telephone conversation is an important facet of a man’s private life’.
The right to hold a telephone conversation in the privacy of one’s home or
office without interference can certainly be claimed as “right to privacy”.
So, tapping of telephone is a serious invasion of privacy. This means that
telephone tapping would infract Article 21 unless it is permitted under the
procedure established by law. The procedure has to be “just, fair and
reasonable”.

Prisoner’s Privacy Rights

The question of the right to be let alone again came on the front in
the case of R. Rajagopal vs. State of T.N.73 also known popularly as the
Auto Shankar Case. A prisoner had written his autobiography in jail
describing the conditions there and the nexus between prisoners and several
IAS and IPS officers. He had given the autobiography to his wife so that
she may publish it in a particular magazine. However, the publication was

72 AIR 1983 SC 361 : (1 9 83) 2 SCC 68 195


73 1995 AIR 264

280
restrained in various matters and the question arose whether anyone has the
right to be let alone and particularly in jail.

5.2.24 Right to fair and open trial

Fair and open trial is a part of just and fair judicial process, regarding
the procedure adopted by the Court, evidences and witnesses examined by
the court. In other words it is whole process of evaluating the act or
omission of an accused, in light of statement of witnesses, cross-
examination done by the pleaders, the basic idea of fair and open trial is
that the judiciary should not behave in arbitrary, discretionary, fanciful or
whimsical manner or with pre-determined mind.

The trial should be in open court, but if facts and the circumstances
of the case are of the nature which may end in danger, the Apex Court
allowed to change the venue, as in the case of former Prime Minister, but
the change in timing of trial court was not allowed, as decided in the case of
Commissioner of Police v. Registrar, Delhi High court, New Delhi,74

It was held in Anukul Chandra Pradhes v. Union of India,75 The


same way the matter Hawala transaction was fetching the public ,media and
press but, it was held that it would affect the essential of fair trial, including
the presumption of innocence.It was further observed that the observation
of Supreme Court would not effect or have no influence on the trial
regarding the innocence of the person.

5.2.25 Right in case of acquittal

In Rudal Shah vs state of Bihar76 If the trial against a prisoner


concludes into acquittal the prisoner is entitled as a matter of right to be

74 1996, 6, SCC 323, AIR 1997 SC 95.


75 1996 SCC. 354
76 1983 AIR 1086

281
released forthwith. After an order of acquittal, he cannot be detained behind
the prison walls.

Procedure established by Law

When there is deprivation of liberty, otherwise than according to law.


The personal liberty of a citizen is guaranteed under the scheme of Article
20,21 & 22 of the Constitution of India, However a person may be deprived
of his liberty only according to procedure established by law.It was held in
Ram Narain v State of Delhi,77 that those who will call upon to deprive
other persons of their personal liberty in the discharge of what they
conceive to be their duty, must strictly and scrupulously observe and follow
the rules of the law. It the aforesaid principle is not observed, the Court
would set the prisoner at liberty, Apex court observed in Kishori Mohan
Bera v State of W.B,78 that Such a principle would Apply In the case of
punitive As well as preventive detention.

In NandLal Bajaj v. State of Punjab,79 it is very clearly narrated


that the trial should be absolutely fair in the sense that it should not be
arbitrary, unfair or unreasonable. Art.21 further prescribes that, any
procedures which are adopted by lawful enactment which may be modified,
change or alter at the given point of time. It is a valid law, If it is enacted by
a competent Legislature and if it does not violate any of the other
fundamental rights declared by the Constitution, e.g. Art.14 20(3) or Art.22
or Art.19.

5.2.26 Right to Speedy Justice

S.C. Advocate on Record Association v. Union of India,80 court


interpreted that The preamble of Constitution of India very clearly

77 1953 SCR652
78 AIR 1972 SC 1749
79 AIR 19 81 SC 2041
80 AI R 1994 S.C. 26 8

282
emphasised on providing justice: Social, Economic and Political, to every
citizen of India. As delay in justice is considered denied justice. The
ingredients of Article 21 very clearly establish, speedy justice as an
essential ingredient of just and fair justice, but the Supreme Court had
advanced the concept of speedy justice.

In the case of Rudul Shah v. State of Bihar. Held that It was a great
tragedy of judiciary system, where an innocent person suffered the
imprisonment for 14 years, because of the mistake on the part of police and
judiciary, justice was delivered very late and he was declared innocent after
wasting his valuable 14 years. The judicial activism also contributed a great
help to protection of Human Rights in very popular cases of Hussainara
Khatoon case also. The initiative is also taken for the pendency of criminal
and civil cases by the Apex Court, “Evening Courts” are also been working
and getting good disposal. The “Fast Track Court” is one of the
contributions for the speedy justice.

Further in Anil Rai v. State of Bihar81 Supreme Court took a serious


note of delay in delivery of judgements. The court observed that any
inordinate, unexplained and negligent delay in pronouncing the judgement
by the high court infringed the right under Article 21 of the Constitution.

5.2.27 Fundamental rights of a prisoner

It was established in Patnaik D. Bhuvan Mohan v. State of A.P.,82


that even when a person is convicted and imprisoned under sentence of
Court, he does not lose, all the fundamental rights which are available to all
persons under the Constitution, except those which cannot possibly by
enjoyed owing to the fact of incarceration, such as the right to move freely
[Art. 19(1) (d)] or the right to practice a procession [Art. 19(1) (g)]. Is was

81 AIR 2001 SC 3173


82 AIR 1974 SC 2092 (para 10) : (1975) 3 SCC 185

283
also held in Sunil Batra’s case that prisoner has The right to acquire hold
and dispose of property.

Also in case Watchdogs International v. Union of India,83 court


extended The right against discrimination under Art. 14. Hence, if one
convict is given concessions from prison duties and obligations which are
denied to another, the latter may complain of the violation of Art.14. court
further commented that If the prisoner is subjected to mental torture,
psychic pressure or physical infliction beyond the legitimate limits of
lawful imprisonment, the prison authorities shall have to justify their action
by producing legal sanction or be liable for the excesses.

Held in Javed Ahmed Abdul Hamid Pawala v. State of


Maharashtra,84 that In short, a prisoner remains a human being
notwithstanding his imprisonment and would be entitled to those minimum
Human Rights such as recreation, freedom from extremes of heat and cold,
freedom from indignities like compulsory nudity or other vulgarities over
and above those restrictions which the Prison administration is entitled to
impose for maintaining internal order, discipline, prevention of escape and
the like, which follow from the sentence of imprisonment. He is entitled to
Constitutional protection against human degradation, so long as life lasts.

The Magistrate may grant permission to handcuff in very rare cases.


Right to dignity and fair treatment is not only available to a living man but
also to his body after his death. Hence, the jail authorities shall not keep the
body of any condemned prisoner suspended after the medical officer has
declared him to be dead.

5.2.28 Protection to prisoners under preventive Detention

Now the trend of non-arbitrariness test of Art.14 is applicable to


determine the validity of a law of preventive detention also i.e the

83 (1998) SCC 338


84 AIR 1985 SC 231

284
requirement of a fair procedure under Art. 21 also extends to cases of
preventive detention

In A.K. Roy v Union of India,85 case, it was observed

“In order that the procedure attendant upon detentions should


confirm to the mandate of Article 21 in the matter of fairness, justness and
reasonableness we consider it imperative that immediately after a person is
taken in custody in pursuance of an order of detention, the members of his
household preferably the parent the child or the spouse, must be informed
in writing of the passing of the order of detention and of the fact that the
detenue has been taken in custody, Intimation must also be given as to the
place of detention, including the place where the detenu is transferred from
time to time.

Francis v Administrator86 An extension of this philosophy is that a


person under preventive detention has the right to live with human dignity
(as under Art. 21), including a right to interview with friends, family
members and lawyers.

It was remarked by hon’ble court in State of Maharashtra v


Prabhakar87 that He is also entitled to pursue his academic pursuits,
including publication of his writings, insofar as that is not inconsistent with
prison discipline and security. Any unreasonable interference with this right
would be an infringement of his personal liberty.

In the case of Nand v State of Punjab88 Applying the requirement


of a fair procedure the Court has quashed an order of detention on the
ground that while the Advisory Board allowed the detaining authority to be
represented by a lawyer, it refused legal assistance to the detenu.

85 1982SC710
86 1981 SC 746
87 1966 SC 424
88 1981SC 424

285
As Held in Addl. Secy.v Gadia89 By a somersault, thus, Indian
Supreme Court has come to the opposite pole to hold that the rights of a
detenu under preventive detention are to be drawn not only from Art 22 but
also from those enshrined in Arts. 14, 19 and 21.

5.2.29 Right to Reasonable Wages in Prison

Remuneration, which is not less than the minimum wages, has to be


paid to anyone who has been asked to provide labour or service by the state.
The payment has to be equivalent to the service rendered, otherwise it
would be ‘forced labour’ within the meaning of Article 23 of the
Constitution. There is no difference between a prisoner serving a sentence
inside the prison walls and a freeman in the society.

In the case of Mahammad Giasuddin v. State of A.P90. the court


directed the state to take into account that the wages should be paid at a
reasonable rate. It should not be below minimum wages, this factor should
be taken into account while finalizing the rules for payment of wages to
prisoners, as well as to give retrospective effect to wage policy.

Right to be informed of offence

In case Madhu Limaye91 Held that The framing of a ‘charge’ or


accusation against the arrested person for trial gives him another right, viz.,
the right to be informed of the specific offence with which he is charged,
with necessary particulars.

5.2.30 Natural justice for prisoners

It was pronounced in Charan v Union of India92 in India, natural


justice has been placed or much higher pedestal than in England, by making

89 (1991) 1 SCJ.200
90 1977 AIR 1926
91 1969 SC 1014
92 1990 SCC 613

286
it an integral part of the Fundamental Rights under Arts. 14, 19 and 21 of
the Constitution. In the result, contravention natural justice would, in India
invalidate not only an administrative order but the law itself, which is not
possible in the U.K.

5.2.31 Right to get bail

Right to bail is a right with a vital importance. Prior to independence


and formation of the Constitution, the right to bail was provided under the
provisions of Code of Criminal Procedure. When bail is rejected the
personal liberty of an accused is deprived, the judiciary must exercise the
powers to grant the bail. The significance and the sweep of Article 21
makes the deprivation of liberty, a matter of grave concern and permissible
only when the law authorises.

It was held in State of Gujarat v. Lalsingh,93 that it is Right of the


accused in bailable offence to get bail; it cannot be curtailed by any
executive direction or instruction. it was further extended in
94
Sukharnariyan Bakhiya v. Rajnikant R. Shah, Gujarat that The court
has power to release a person on bail even in non bailable offence.

Same way in Bhagirathi Barik v. State,95 if once the bail is granted


for a heinous crime and accused is enjoying the bail for considerable period
without any protest, bail ought not to be cancelled. In other words, bail may
not be granted lightly in heinous offence but simultaneously once granted it
cannot be cancelled without proper protest.

The principles can be laid down for granting the bail as under:-

i. Crime History, education and social background of the


accused

93 1980 Cr.LJ. 1413


94 1982 Cr.L.J . 2148
95 1993, Cr.L.J. 838 Orrissa .

287
ii. Nature and seriousness of crime and surroundings.
iii. Severity of offence and multiplicity of offence.
iv. Stage of investigation and evidences collected by the police
authority.
v. Scope and chances of manipulations by the accused.
vi. Number of witnesses, Status of witnesses, Probabilities of
hostile the witnesses by the accused.
vii. Possibilities of repetition of crime.
viii. Possibilities of absconding and non-availability of accused
during the trial.
ix. Probable endangerments to victim or family members of
victim or society in general by granting the bail to the accused

Justice Goswami observed in Gurcharan Singh v. State96

“We may repeat the two paramount considerations viz., likelihood of


the accused fleeing from justice and his tampering with prosecution
evidence relate to ensuring a fair of the case in a Court of Justice. It is
essential that due and proper weight should be bestowed on these two factor
apart from other. There cannot be an inexorable formula in the matter of
granting bail. The facts and circumstance of each case will govern the
exercise of judicial discretion in granting or canceling bail.”

Justice Bhagwati in a case State of Rajasthan v . Balchand97 says


“The Bail system causes discrimination against the poor since the poor
would not be able to furnish bail on account of their poverty while the
wealthier persons otherwise similarly situated would be able to secure their
freedom because they can afford and furnish bail.” This discrimination
arises even if the amount of the bail set by the Magistrate is not so high ‘for
a large majority of those who are brought before the courts in criminal cases

96 (1978) 1 SCC 118


97 AIR 1977S C 2477

288
are so poor that they would find it difficult to furnish bail even in small
amount. This inbuilt discrimination in the bail system is bound to shake the
confidence of such prisoners in the judicial system.

5.2.32 Right to Compensation:

If a person is being deprived of her life and personal liberty plus


dignity by unfair or illegal procedure the consequences of such detention
will enable her to get the compensation from the court against the
negligence of the State.

The right to get compensation against illegal and unfair deprivation


of liberty was discussed in Rudul Shah’s case98 where accused was
acquitted by criminal court of Muzaffarpur on June 3, 1968 but continued to
be in jails for 14 long years till he was finally released on October 16, 1982.
He filed a petition in the Supreme Court, against illegal detention.

The petitioner not only got the sympathy of the court but the
Supreme Court asked the State administration to give a reasonable
explanation as to why the State detained an innocent person in jail for 14
years who was acquitted by a competent court after a normal trial. Hence,
Court ordered for compensation.

In Saheli, A women’s Resource Centre vs. Commissioner of


Police, Delhi case, the police officers raided the house of Mrs. Kamalesh
Kumari. The Victim was staying in a house with her three children. The
landlord of that house took the help of police to forcibly evict them from
the house. During the police raid, the police trampled upon nine years child
of Kamalesh Kumari resulting the death of the child. It is a well settled that
the state is responsible for the tortious acts of its employees. In the instant
case court observed that “in the matter of liability state is liable for tortious
acts committed by its employees in the course of their employment. On

98 AIR 1988 SC 1086.,

289
these facts, the Supreme Court ordered for payment of Rs. 75,000/- as
compensation to the mother of the deceased child. In this case, the court
ordered to recover the amount of compensation from the concerned police
officer.

5.2.33 Right to be represented in Court:

The courts in india has laid down that any practice which restricts or
disables a person to exercise his right to appeal amounts to unfair practice
and is against the principles of natural justice provided by Article 21. The
court enumerated two ingredients of the fair procedure:That the convict
should be provided a copy of judgement within a reasonable period so that
he may exercise his right to appeal and that the free legal aid should be
provided to the person concerned if he somehow is not able to arrange the
same owing to his disability or poverty.

In the Superintendent of Legal Affairs V. Bhowmik.99 Case the


Supreme Court again discussed the concept of legal aid and fair procedure.
The Supreme Court laid down that the right to `free legal service’ is an
essential ingredient of fair and reasonable procedure as implicit in the right
of personal liberty contained in Article 21 of the Constitution. The
obligation of the State to provide for `free legal service’ to a person cannot
be done away with by saying that it is unable to provide the same due to
financial and administrative reasons. It is also the duty of the court to see
and inform the accused that he has a right to legal service, even if he does
not ask for the same.

5.2.34 Arrested person not subject to unnecessary restraint:

An arrested person may end up escaping from the custody because


nobody is happy in lock-ups. To make sure that all the accused are treated

99 AIR 1981 SC 917

290
well by the Police Officers, jailors and other detaining authorities, they
have a duty to strict confinement. It may include even tying individual
accused together, both hands and legs together. It is their duty to produce
them wherever needed. It is a trust from the state entrusted to them to make
sure that they execute the same. If they fail to do so and the criminals or
accused persons run away from custody, they will be liable of breach of
trust and be punished by the Government which trusted them. Finally, it
must be clear that the police, judiciary, jailers, care homes and other
detaining authorities authorized to arrest detain and interrogate against an
offence, are the trustees of the government they act on behalf of the
government for maintaining law and order.

But since there is protection for the accused in custody of police or


judiciary they should not be subjected to unnecessary restraints. In section
49 of the Cr.P.C., a protection is provided to the arrested person not to be
restrained unnecessary. In Afzal and another V. State of Haryana100 court
said that the section says that, the person arrested shall not be subjected to
more restraint than necessary to prevent his escape.

5.2.35 Prisoner’s Right to education

Education is required for the growth and betterment of life and


prison should not be bar for that in all cases. State should try to provide
basic education to inmates within permitted limits. Himachal Pradesh High
Court in ‘Gurdev Singh and others vs. State of Himachal Pradesh101
gives emphasis on the provisions for education and vocational training of
the prison inmates to improve their skills and capabilities.

5.2.36 Right to dignity for women prisoners

As against the part of the human dignity it is provided that while


arresting a women, it should be ensured that she is arrested by a lady police

100 1994 CrLJ 1240


101 1992 Cr. L.J.’

291
constable and the arrest must be before sunset and after sunrise, and that she
should be accorded all the human decency during the time of arrest and in
custody. She should not be subjected to torture, rape, cruel and other
inhuman acts because she too is a human being. Though in the latest
judgment with regard to arrest and detention of women in State of
Maharashtra v. Christian Community102 Supreme Court has ruled that
women can be arrested without the presence of lady police constable and at
any time of the day or night but it should be borne in mind that it is
detrimental to the safety and security of women.

5.2.37 Remedy for protection of right of prisoners

Habeas corpus:- The principal remedy against arbitrary detention


including preventive detention, is the common law writ of habeas corpus. In
India, the constitutional remedy for protection of fundamental rights is the
remedy by way of the writs specified in Arts. 32 and 226, which include
habeas corpus .

After the case of Kamla v State of Maharashtra.103 It is now


established that habeas corpus would lie in case of preventive detention for
violation of Art. 21 as well as the terms of Art. 22(4)-(5).

Hence, the scope of review of an order of preventive detention on a


Petition for habeas corpus is wide open to include the following questions:

(i) Whether the statue authorizing preventive detention is invalid for


want of legislative competence of the relevant Legislature.

(ii) Held in case Dayal v D.M 1973104 whether the procedural


requirements of that statute have been strictly complied with or not
has to be satisfied by court .

102 Appeal No.508 with 509 of 1996


103 1981 SC 851
104 SC 183

292
(iii) Whether the order of detention is otherwise vitiated by ultra vires,
e.g., an abuse or colorable use of the statutory power; or mala fides.

(iv) Whether there were relevant materials before the detaining authority
to satisfy himself that there was a compelling necessity to pass the
detention order, or whether he duly applied his mind to that question.

5.3 CONCEPT OF JUDICIAL REVIEW

It is the review of the Judicial Activities for the Indian Prison and
Prisoners. The Indian judiciary, especially at the level of the Supreme Court
and High Courts, has for long been concerned with the concept and practice
of justice. What constitutes justice and for whom? How do we truly achieve
the laudable constitutional precepts that ‘no one is above the law’ and that
‘all persons are entitled to the equal protection of the law’? How do we
cope with the problem that in principle, ‘all persons are equal under the
law’ but in reality, ‘some are more equal than others’? In its infancy,
immediately after independence, the Supreme Court of India grappled, not
always successfully, with the problem of striking a balance between the
much-needed programmes of economic and social reform (for example,
land reform and land redistribution) on the one hand and establishing the
credibility of the newly-born Indian State in terms of fostering the rule of
law and respecting the rights vested under laws that preceded independence
and the very Constitution itself , on the other. During the first couple of
decades when, for all practical purposes, India was functioning as a de facto
one-party political system, the Supreme Court focused on promoting the
values of constitutionalism, separation of powers and checks and balances
over and in each organ of the State. The Supreme Court and the High
Courts were ever-vigilant in their review of executive actions, hence
ensuring the public requisite protection against the excesses of authority or
abuses of power. They were equally vigilant in their review of legislative
actions, both in respect of lawmaking as well as in balancing legitimate

293
parliamentary powers, (necessary for the effective functioning of
Parliament) with parliamentary privileges, notably that of punishing for
contempt.

In the decades thereafter, the Supreme Court turned its attention


towards the frequency with which the Parliament was amending the
Constitution using the dominance of the single political party at the both
national and the state levels to the maximum. The Court elaborated upon
the distinction between the constituent and legislative power. Moreover, as
the judiciary and the Indian political system matured, the Supreme Court
firmly established the primacy of the Constitution through its articulation of
the basic structure doctrine, thereby safeguarding those features that are
inherent in Constitution from being altered through the mere exercise of
legislative power.

In post-independence India, the inclusion of explicit provisions for


‘judicial review’ were necessary in order to give effect to individual and
group rights guaranteed in the text of the Constitution. Dr. B.R. Ambedkar,
who chaired the drafting committee of our Constituent Assembly, had
described the provisions related to the same as the ‘heart of the
Constitution’. Article 13(2) of the Constitution of India prescribes that the
Union or the States shall not make any law that takes away or abridges any
of the fundamental rights, and any law made in the contravention of the
aforementioned mandate shall, to the extent of the contravention, be void.

While judicial review over administrative action has evolved on the


lines of common law doctrines such as ‘proportionality’, ‘legitimate
expectation’, ‘reasonableness’ and principles of natural justice, the Supreme
Court of India and various High Courts were given the power to rule on the
constitutionality of the legislative as well as administrative actions. In most
of the cases, the power of judicial review is exercised to protect and enforce
the fundamental rights guaranteed in Part III of the Constitution. The higher

294
courts are also approached to rule on questions of legislative competence,
mostly in the context of Centre-State relations since Article 246 of the
Constitution read with the 7th schedule, contemplates a clear demarcation as
well as a zone of the intersection between the law-making powers of the
Union Parliament and the various State Legislatures. Hence the scope of
judicial review before Indian courts has evolved in three dimensions –
firstly, to ensure fairness in administrative action, secondly to protect the
constitutionally guaranteed fundamental rights of the citizens and thirdly to
rule on the questions of legislative competence between the centre and the
states. The power of the Supreme Court of India to enforce the fundamental
rights what is derived from Article 32 of the Constitution. It gives the
citizens the right to directly approach the Supreme Court for seeking
remedies against the violation of these fundamental rights.

This entitlement to constitutional remedies is itself a fundamental


right and can be enforced in the form of writs evolved in common law –
such as habeas corpus (to direct the release of a person detained
unlawfully), mandamus (to direct a public authority to do its duty), quo
warranto (to direct a person to vacate an office assumed wrongfully),
prohibition (to prohibit a lower court from proceeding on a case) and
certiorari (power of the higher court to remove a proceeding from the lower
court and bring it before itself). Besides the Supreme Court, the High
Courts located in the various States are also designated as the constitutional
courts and Article 226 permits citizens to file similar writs before the High
Courts.

With the advent of Public Interest Litigation (PIL) in recent decades,


Article 32 has been creatively interpreted to shape innovative remedies such
as a ‘continuing mandamus’ for ensuring that executive agencies comply
with judicial directions. In this category of the litigation, the judges have
also imported private law remedies such as ‘injunctions’ and ‘stay orders’

295
into what are essentially public law-related matters. Successful challenges
against statutory provisions result in reliefs such as the striking down of
statutes or even reading down of statutes, the latter implying that courts
reject a particular approach to the interpretation of the statutory provision
rather than rejecting the provision in its entirety.

Beginning with the first few instances in the late-1970’s, the


category of Public Interest Litigation (PIL) has come to be associated with
its own ‘people-friendly’ procedures. The foremost changes, that came in
the form of the dilution of the requirement of ‘locus standi’ for initiating
proceedings. Since the intent was to improve access to justice for those who
were otherwise too poor to move the courts or were unaware of their legal
entitlements and the Court allowed actions to be brought on their behalf by
social activists and lawyers. In the numerous instances, the Court took suo
moto cognizance of matters involving the abuse of prisoners, bonded
labourers and inmates of mental institutions, through letters addressed to
sitting judges.

In Public Interest Litigation (PIL), the nature of the proceedings


itself does not exactly fit into the accepted common-law framework of
adversarial litigation. The courtroom dynamics are substantially different
from ordinary civil or criminal appeals. While an adversarial environment
may prevail in cases where actions are brought to highlight administrative
apathy or the government’s condonation of abusive practices, in most
public interest related litigation, the judges to take on a far more active role
in the literal sense as well by posing questions to the parties as well as
exploring solutions. Especially in actions seeking directions for ensuring
governmental accountability or environmental protection, the orientation of
the proceedings is usually more akin to the collective problem-solving
rather than an acrimonious contest between the counsels. Since these
matters are filed straightaway at the level of the Supreme Court or the High

296
Court, the parties do not have a meaningful opportunity to present the
evidence on a record before the start of the court proceeding. To overcome
this problem, our Courts have developed the practice of appointing ‘fact-
finding commissions’ on a case by a case basis which are deputed to inquire
into the subject-matter of the case and the report back to the Court. These
commissions usually consist of experts in the concerned fields or practicing
lawyers. In matters involving the complex legal considerations, the Courts
also seek the services of senior counsels by appointing them as amicus
curiae on a case-to-case basis.

5.3.1 Objections to the doctrine of ‘judicial review’

However, in many jurisdictions - questions have been asked about


the proper understanding of ‘judicial review’ as well as its expansion. There
are two principled objections offered against the very idea of ‘judicial
review’ in a democratic order.

The first idea is that the judiciary being an unselected body is not
accountable to the people through any institutional mechanism. In many
countries the judges are appointed through the methods involving selection
or nomination, in which ordinary citizens do not have a say. It is argued that
allowing the judiciary to rule on the validity of the enactments passed by a
popularly selected legislature amounts to a violation of the idea of
‘separation of powers’. Skepticism is also voiced against the judges using
their personal discretion to grant remedies in areas in which they have no
expertise. This critique locates the role of the judiciary as a purely one of
the resolving disputes between the parties and deferring to the prescriptions
of the selected legislature while doing so. In the Common Law realm, this
critique is based on the age old notion of the ‘parliamentary sovereignty’.
With respect to the inherent value of a written constitution that also
incorporates ‘judicial review’, it would be appropriate to refer to an
observation made by Justice Aharon Barak:

297
“To maintain real democracy and to ensure a delicate balance
between its elements -a formal constitution is preferable. To operate
effectively, a constitution should enjoy normative supremacy, should
not be as easily amendable as the normal statute, and should give
the judges such power to review the constitutionality of legislation.
Without any formal constitution, there is not any legal limitation on
legislative supremacy, and the supremacy of human rights can exist
only by the grace of the majority’s self-restraint. A constitution,
however, imposes legal limitations on the legislature and guarantees
that human rights are protected not only by the self restraint of the
majority, but also by the constitutional control over the majority.
Hence, the need for a formal constitution.”

However, we must also consider another nuanced objection to the


doctrine of ‘judicial review’. It is reasoned that the substantive contents of
the constitution adopted by a country at a particular point of the time reflect
the will of its framers. However, it is not much necessary that the intent of
the framers corresponds to the will of the majority of the population at any
given time. In the Indian setting, it is often argued that the members of the
Constituent Assembly were overwhelmingly drawn from the elite
backgrounds and hence did not represent popular opinions on several vital
issues. Furthermore, the adoption of a constitution entails a country’s pre-
commitment to its contents and the same become binding on future
generations. Clearly the understanding and the application of the
constitutional principles cannot remain static and hence a constitutional text
also lays down a procedure for its amendment.

This power of the amendment by the legislature is not an unlimited


and the idea of ‘judicial review’ designates the higher judiciary as the
protector of the constitution. This scheme works smoothly as long as the
demands and aspirations of the majority of the population correspond with
the majoritarian policy-choices embodied in legislative or executive acts

298
come into conflict with constitutional provisions. The higher judiciary is
then required to scrutinize the actions of its equivalent branches of
government. Some scholars have also argued that the fact situations of this
type involve the tensions between the understanding of the words
‘constitutionalism’ and ‘democracy’ respectively. Hence, it is postulated
that the provision for ‘judicial review’ gives a self-contradictory twist to the
expression ‘constitutional democracy’.

In this regard the role of the judiciary could be described as one of


protecting the counter majoritarian safeguards enumerated in the
Constitution. It is the apt to refer to an opinion given by Justice Robert
Jackson where it was held that the citizens could not be compelled to salute
the U.S. national flag if the same offended their religious beliefs. He
observed as follows:

‘The very purpose of the bill of rights was to withdraw certain


subjects from the vicissitudes of political controversy, to place them
beyond the reach of the majorities and officials and to establish
them as legal principles to be applied by the Courts. One’s right to
life, liberty, and property, to free speech, a free press, freedom of the
worship and assembly, and the other fundamental rights may not be
submitted to vote: they depend on the outcome of no elections.’

For example, in India there is considerable disenchantment with the


constitutional provision which places the personal laws of religious groups
beyond the scope of constitutional scrutiny. The framers are preferred this
position in order to protect the usages and customs of the religious
minorities with regard to the guarantee of ‘freedom of religion’. However,
there have been persistent majoritarian demands for a constitutional
amendment of this position in order to enact a ‘Uniform Civil Code’ for
regulating the private relations of citizens belonging to all religions. Even
though there may be a good case for some specific changes to personal laws

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with the objective of ensuring the gender-justice, the demands for the whole
scale rejection of the personal laws threaten a majoritarian imposition.
Noted that a scholar Samuel Isacharoff has argued that in fractured or
pluralist societies it is beneficial to implement a constitutional scheme in
order to restrain destructive majoritarian tendencies.

5.4 SCOPE OF RIGHTS AND EXPANSION BY COURT

It can be stated with some certainty that the doctrine of ‘judicial


review’ helps in binding a polity to its core constitutional principles. In the
post World War II era, the memory of devastating conflicts and oppressive
colonialism ensured that these principles were initially centered on the
protection of basic civil-political rights such as free speech, assembly, the
association and movement as well as the guarantees against abusive
practices by state agencies such as arbitrary arrest, detention, torture and
extra-judicial killings. The growth of the Constitutionalism has also been a
synonymous with that of the liberal values which seek to safeguard an
individual’s dignity as well as collective welfare at the same time. In highly
disparate and iniquitous societies, such a commitment also requires some
counter majoritarian safeguards. Depending on the social profile of a
country’s population, these safeguards may be in the nature of the
exceptional treatment for ethnic, the religious and the cultural minorities as
well as proactive measures designed for the advancement of historically
disadvantaged communities and poorer sections of society. Such safeguards
which are meant to tackle the social differences based on the factors such as
religion, caste, gender, class and region among others, also have clear
socio-economic dimensions. Hence, the role of the Courts in protecting
constitutional values goes beyond the enforcement of clearly defined civil
political rights that could be litigated by the individual citizens and
incorporates a continuously evolving understanding of ‘group rights’ which
necessarily have socio-economic dimensions as well.

300
To appreciate the transformations in the substantive nature of
justifiable rights, it is necessary to reiterate the theoretical distinction
between their ‘negative’ and ‘positive’ dimensions. The classifications of
enumerated rights can be based on who they are directed against and
whether they involve a ‘duty of restraint’ or a ‘duty to facilitate
entitlements’. The language of the substantive right usually indicates
whether it is directed against the state agencies, private actors or both. For
instance in the Indian Constitution, civil-political rights such as ‘freedom of
speech, assembly and association’ are directed against the State, since the
text expressly refers to the State’s power to impose reasonable restrictions
on the exercise of the same. This implies that under ordinary conditions, the
State has an obligation not to infringe on such liberties. This ‘duty of
restraint’ forms the basis of rights with a ‘negative’ dimension. Hence in the
early years of the Indian constitutional experience, civil liberties and the
protection against the deprivation of life and liberty were understood
mainly as imposing duties of restraint on governmental agencies as well as
private citizens. However, in contrast to these justiciable ‘negative’ rights
the directive principles of state policy allude to several socio-economic
objectives which had a ‘positive’ dimension. Even though the directive
principles are non-justiciable, their language is couched in the terms of
positive obligations on governmental agencies to enable their fulfillment.

The Indian Courts have responded to this hierarchy between


‘negative’ and ‘positive’ rights by trying to collapse the distinction between
the same. While the fundamental rights of citizens enumerated in Part III of
the Constitution are justiciable before the higher judiciary, Part IV deals
with the ‘Directive Principles of State Policy’ that largely enumerate
objectives pertaining to socio-economic entitlements. The Directive
Principles aim at creating an egalitarian the society whose citizens are free
from all the abject physical conditions that had hitherto prevented them
from fulfilling their best selves. They are the creative part of the

301
Constitution, and the fundamental to the governance of the country.
However, the key feature is that the Directive Principles are ‘non-
justiciable’ but are yet supposed to be the basis of executive and legislative
actions. It is interesting to note that at the time of drafting of the
Constitution, some of the provisions which are presently the part of the
Directive Principles were part of the declaration of the fundamental rights
adopted by the Congress party. K.M. Munshi (a noted lawyer and a member
of the Constituent Assembly) had even included in his draft list of rights,
the ‘rights of workers’ and ‘social rights’, which included provisions
protecting the women and children and guaranteeing the right to work, a
decent wage, and a decent standard of living. Subsequently, the objective of
ensuring these entitlements was included in the Directive Principles. The
primordial importance of these principles could be understood by the
following words of Dr. B.R Ambedkar, when he insisted on the use of the
word ‘strive’ in the language of Article 38 which mentions the
governmental objective of an equitable distribution of material resources:
“We have used it because it is our intention that even when there are
circumstances which prevent the Government, or which stand in the
way of the Government giving effect to these directive principles,
they shall, even under hard and unpropitious circumstances, always
strive in the fulfillment of these directives. … Otherwise it would be
open for any Government to say that the circumstances are so bad,
that the finances are so inadequate that we cannot even make any
effort in the direction in which the Constitution asks us to go.”105
Thus, the enforceability of measures relating to social equality
though incorporated in the aspiration terms was never envisaged as being
dependent only on the availability of state resources. In some cases, the
Courts have privileged fundamental rights over directive principles while in
others they have creatively drawn a harmonious relationship between the

105 [Constituent Assembly Debates, 19-11-1948]

302
two. An example of this is the expansion of the conception of ‘personal
liberty’ under Article 21 of the Constitution which was traditionally invoked
in the civil and political context to check governmental abuses. The
judicially expanded understanding of the same now includes the several
socio-economic entitlements for the citizens which place positive
obligations on the state. What is interesting is that the reading in of these
socio-economic entitlements by judges has often directly referred to the
language of the provisions contained in the part dealing with directive
principles. In this sense, the judicial creativity has transformed the
substantive character of the protection of life and liberty.

Article 21 of the Constitution of India reads as follows: “No person


shall be deprived of his life or personal liberty except according to
procedure established by law.” The interpretation of this article in the early
years of the Supreme Court was that ‘personal liberty’ could be curtailed as
long as there was a legal prescription for the same. In A.K. Gopalan’s case.
the Supreme Court had ruled that ‘preventive detention’ by state agencies
was permissible as long as it was provided for under a governmental
measure (e.g. legislation or an ordinance) and the Court could not inquire
into fairness of such a measures. It was held that the words ‘procedure
established by law’ were different from the ‘substantive due process’
guarantee provided under the 14th amendment to the US Constitution. It
was also reasoned that the framers of the Constitution of India consciously
preferred the former expression over the latter. This narrow construction of
the Article 21 prevailed for several years until it was changed in Maneka
Gandhi’s case. In that decision, it was held that governmental restraints on
‘personal liberty’ should be collectively tested against the guarantees of the
fairness, non-arbitrariness and the reasonableness that were prescribed
under Articles 14, 19 and 21 of the Constitution. The Court developed a
theory of ‘inter-relationship of rights’ to hold that governmental action

303
which curtailed, either of these rights should meet the designated threshold
for restraints on all of them. In this manner, the Courts incorporated the
guarantee of ‘substantive due process’ into the language of Article 21. This
was followed by a series of decisions, where the conceptions of ‘life’ and
‘personal liberty’ were interpreted liberally to include rights which had not
been expressly enumerated in Part III. In the words of Justice Bhagwati:

“we think that the right to life includes the right to live with human
dignity and all that goes along with it, namely the bare necessities of
the life such as adequate nutrition, clothing and shelter over the
head and facilities for reading, writing and expressing oneself in
diverse forms.”

Notably, over the decades, the Supreme Court has affirmed that both
the Fundamental Rights and Directive Principles must be interpreted
harmoniously. It was observed in the Kesavananda Bharati case, that the
directive principles and the fundamental rights supplement each other and
aim at the same goal of bringing about a social revolution and the
establishments of a welfare State, the objectives which are also being
enumerated in the Preamble to the Constitution. Furthermore, in Unni
Krishnan, J.P. v. State of Andhra Pradesh, Justice Jeevan Reddy declared:

“The provisions of Parts III and IV are supplementary and


complementary to each other and not exclusionary of each other and
that the fundamental rights are but the means to achieve the goal
indicated in Part IV”.

This approach of harmonizing the fundamental rights and the


directive principles has been successful to a considerable extent. As
indicated earlier, the Supreme Court has interpreted the ‘protection of life
and personal liberty’ as one which contemplates socio-economic
entitlements. For instance, in Olga Tellis v. Bombay Municipal

304
Corporation,106 a journalist had filed a petition on behalf of hundreds of
pavement-dwellers who were being displaced due to construction activity
by the respondent corporation. The Court recognised the ‘right to livelihood
and housing’ of the pavementdwellers and issued an injunction to halt their
eviction.

In Parmanand Katara v. Union of India107, the Court held that no


medical authority could refuse to provide immediate medical attention to a
patient in need in emergency case; The public interest litigation had arisen
because many hospitals were refusing to admit patients in medico-legal
cases. Hence, the Supreme Court ruled that access to healthcare, is a
justiciable right. In another prominent Public Interest Litigation (PIL), the
Supreme Court ordered the relocation of the hazardous industries located
near residential areas in New Delhi. In the process, it spelt out the citizens’
‘right to clean environment’ which was in turn derived from the protection
of life and liberty enumerated in Article 21.

The court has also recognized access to free education as a


justiciable right. This decision prompted a Constitutional amendment which
inserted in Article 21-A into the Constitutional text, thereby guaranteeing
the right to elementary education for children aged between 6-14 years. The
Courts have also been pointed to the Directive principles in interpreting the
prohibitions against forced labor and child labor. The enforcement of such
rights leaves a lot to be desired, but the symbolic value of their
constitutional status should not be underestimated.

5.5 PUBLIC INTEREST LITIGATION IN INDIA

The unique model of public interest litigation that has evolved in


India not only looks at issues like consumer protection, gender justice,

106
1986 AIR 180, 1985 SCR Supl. (2) 51
107
AIR 1989 SC 2039

305
prevention of environmental pollution and ecological destruction, it has also
directed towards the finding of the social and political space for the
disadvantaged and other vulnerable groups in society. The Courts have
given decisions in cases pertaining to different kinds of entitlements and
protections such as the availability of the food, access to the clean air, safe
working conditions, political representation, affirmative action, anti-
discrimination measures and the regulation of prison conditions among
others.

In Municipal Council, Ratlam v. Vardichand, the Court recognized


the locus standi of a group of citizens who sought directions against the
local Municipal Council for the removal of open drains that caused stench
as well as diseases. The Court, recognizing the rights of the group of the
citizens, asserted that if the:

"…centre of gravity of justice is to shift as indeed the


Preamble to the Constitution mandates, from the traditional
individualism of locus standi to the community orientation of public
interest litigation, and the court must consider the issues as there is
need to focus on the ordinary men."

In Parmanand Katara v. Union of India, the Supreme Court


accepted an application by an advocate that highlighted a news item titled
"Law Helps the Injured to Die" published in a national daily, The Hindustan
Times. The petitioner brought to light the difficulties faced by persons
injured in road and other accidents in availing the urgent and life-saving
medical treatments, since many hospitals and doctors refused to treat them
unless certain procedural formalities were completed in these medico-legal
cases. The Supreme Court has directed medical establishments to provide
the instant medical aid to such injured people, notwithstanding the
formalities to be followed under the procedural criminal law.

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In many other situations, the Supreme Court has risen to the
changing needs of society and taken proactive steps to address these needs.
It was therefore the extensive liberalization of the rule of the locus standi
which gave birth to a flexible public interest litigation system. A powerful
thrust to the public interest litigation was given by a 7-judge bench in the
case of S.P. Gupta v. Union of India. The judgment recognized the locus
standi of the bar associations to file writs by way of the public interest
litigation. In this particular case, it was accepted that they had a legitimate
interest in questioning the executive’s policy of arbitrarily transferring High
Court judges, which threatened the independence of the judiciary.
Explaining the liberalization of the concept of locus standi, the court
opined:

“It must now be regarded as well-settled law where a person who


has suffered a legal wrong or a legal injury or whose legal right or
legally protected interest is violated, is unable to approach the court
on account of some disability or it is not practicable for him to move
the court for some other sufficient reasons, such as his socially or
economically disadvantaged position, some other person can invoke
the assistance of the court for the purpose of providing judicial
redress to the person wronged or injured, so that the legal wrong or
the injury caused to such person does not go underdressed and
justice is done to him.”

For instance, in People’s Union for Democratic Rights v. Union of


India, 1982108 a petition was brought against governmental agencies which
questioned the employment of underage labourers and the payment of
wages below the prescribed statutory minimum wage-levels to those
involved in the constructions of the facilities for the then upcoming Asian
Games in New Delhi. The Court took a serious exception to these practices

108
AIR 1473, 1983 SCR (1) 456

307
and has ruled that they violated constitutional guarantees. The employment
of children in construction-related jobs clearly fell afoul of the
constitutional prohibition on child labor and the non-payment of the
minimum wages was equated with the extraction of forced labor. Similarly,
in Bandhua Mukti Morcha v. Union of India,109 the Supreme Court’s
attention was drawn to the widespread incidence of the age-old practice of
bonded labour which persists despite the constitutional prohibition.

The greatest contribution of Public Interest Litigation has been to


enhance the accountability of the governments towards the Human Rights
of the poor. Public Interest Litigation interrogates power and makes the
courts as people’s court. The Supreme Court of India in a number of
important decisions has significantly expanded the scope and frontier of
Human Rights. Public interest matters today focus more and more on the
interests of the Indian middle classes rather than on the oppressed classes.
PIL seeking order to ban Quran transmission of T.V. Serials,
implementation of Consumer Protection Law removal of corrupt ministers,
invalidation of irregular allotment of petrol pumps and government
accommodation prosecution of politicians and bureaucrats for accepting
bribes and Kickbacks through Hawala transactions, better service
conditions of the members of lower judiciary or quashing selection of
university teachers are some blatant examples espousing middle class
interests. Some initial successes of PIL, however cannot certify that it shall
always remain an effective instrument for protection of Human Rights. The
future of PIL will depend upon who uses it and for whom..

5.6 PUBLIC INTEREST LITIGATION AND MONETARY


COMPENSATION

It is also through the vehicle of PIL, that the Indian Courts have
come to adopt the strategies of awarding the monetary compensation for
109
1984 (3) SCC 161

308
constitutional wrongs such as unlawful detention, custodial torture and
extra-judicial killings by state agencies. In the realm of the environmental
protection, many of the leading decisions have been given in actions
brought by the renowned environmentalist M.C. Mehta. He has been a
tireless campaigner in this area and his petitions have resulted in orders
placing strict liability for the leak of Oleum gas from a factory in New
Delhi, directions to check pollution in and around the Ganges river, the
relocation of hazardous industries from the municipal limits of Delhi, the
directions to state agencies to check pollution in the vicinity of the Taj
Mahal and several afforestation measures. A prominent decision was made
in a petition that raised the problem of the extensive vehicular air pollution
in Delhi. The Court was faced with the considerable statistical evidence of
increasing the levels of hazardous emissions on account of the use of diesel
as a fuel by commercial vehicles. The Supreme Court has decided to make
a decisive intervention in this matter and ordered government-run buses to
shift to the use of Compressed Natural Gas (CNG), an environment-friendly
fuel. This was followed some time later by another order that required
privately-run ‘auto rickshaws’ (three-wheeler vehicles which meet local
transportation needs) to shift to the use of CNG.

At the time, this decision was criticized as an unwarranted intrusion


into the functions of the pollution control authorities, but it has now come
to be widely acknowledged that it is only because of this judicial
intervention that the air pollution in Delhi has been checked to a substantial
extents. Another crucial intervention was made in Council for
Environment Legal Action v. Union of India110, wherein a registered NGO
had sought the directions from the Supreme Court in order to tackle
ecological degradation in coastal areas. In recent years, the Supreme Court
has taken on the mantle of monitoring forest conservation measures all over

110
AIR 1996 SC 1446

309
India, and a special ‘Green bench’ has been constituted to give directions to
the concerned governmental agencies. At present, I am part of this Green
bench and can vouch for the need to maintain the judicial supervision in
order to protect our ecological resources from the rampant encroachments
and administrative apathy.

A recent example of this approach was the decision in People’s


Union for Civil Liberties v. Union of India, where the Court have sought to
ensure the compliance with the policy of supplying mid-day meals in
government-run primary schools. The mid-day meal scheme had been
launched with much fanfare a few years ago with the multiple objectives of
encouraging the enrolment of the children from low income backgrounds in
the schools and also ensuring that they received adequate nutrition.
However, there had been widespread reports of the problems in the
implementation of this scheme such as the pilferage of food grains. As a
response to the same, the Supreme Court issued orders to the concerned
governmental authorities in all the States and Union Territories, while
giving elaborate directions about the proper publicity and implementation
of the said scheme.

5.7 JUDICIARY PLAYING KEY ROLE FOR PRISON SYSTEM

A study of the reported cases of the Supreme Court speak of the fact
that the Indian judiciary, through its positive approach and activism, has
served as an institution for providing effective remedy against the violations
of Human Rights. The functioning of judiciary reveals that it has exercised
its powers in the most creative manner and devised new strategies to ensure
the protection of Human Rights of the prisoners. In the recent past the
Supreme Court of India has used the strategy of Public Interest Litigations
as an aid to enforce the rights of prisoners. Judicial conscience recognized
that the prisoners are also human beings and that the purpose of
imprisonment is to reform them rather than to make them hardened

310
criminals. From the perusal of the above contribution it is evident that the
Indian Judiciary has been very sensitive and alive to the protection of the
Hu- man Rights of the prisoners. It has, through judicial activism initiated
new tools and devised new remedies for the purpose of protecting the most
precious Human Rights of the prisoners. Despite the deficiencies in the
existing enactments, the judiciary on its own creative spirit had contributed
much to prison justice thereby ensuring fundamental human rights of
prisoners.The promotion and the protection of the Human Rights is depends
upon the strong and independent judiciary. The main study here would be
given wide coverage to the functional aspect of the judiciary and see how
far the Apex judiciary in India has achieved a success in discharging the
heavy responsibility of safeguarding Human Rights in the light of our
Constitutional mandate. The major contributions of the judiciary to the
Human Rights jurisprudence have been two fold:

(1) the substantive expansion of the concepts of the Human Rights


under Article 21 of the Constitution, and

(2) the procedural innovation of the Public Interest Litigation (PIL).

5.7.1 Constitutional remedies towards Human Rights of prisoners

Articles 32 and 226 are the provisions of the Constitution that


together provide an effective guarantee that every person has a fundamental
right of access to courts. Article 32 confers power on the Supreme Court to
enforce the fundamental rights. It provides a guaranteed, quick and
summary remedy for enforcing the Fundamental Rights because a person
can go directly to the Supreme Court without moving from lower to higher
court as he has to do in other ordinary litigations. The Supreme Court is
thus protector of the constitution and guarantor of the fundamental rights.

The High courts have a parallel power under Article 226 to enforce
the fundamental rights. Article 226 differs from Article 32 in the sense that

311
whereas Article 32 can be invoked only for the enforcement of Fundamental
Rights mentioned in fundamental rights, Article 226 can be invoked not
only for the enforcement of Fundamental Rights but for any other purpose
as well. This means that the Supreme Court’s power under Article 32 is
restricted as compared with the power of a High Court under Article 226,
for, if an administrative action does not affect a Fundamental Right, then it
can be challenged only in the High Court under Article 226, and not in the
Supreme Court under Article 32. Another corollary to this difference is that
a PIL (Public Interest Litigation) writ petition can be filed in Supreme Court
under Article 32 only if a question concerning the enforcement of a
fundamental right is involved. Under Article 226, a writ petition can be
filed in a High court whether a Fundamental Right is involved or not.

The provision of legal aid is fundamental to promoting access to


courts. The Supreme Court of India has taken imaginative measures to
promote access to justice when people would otherwise be denied their
fundamental rights. It has done this by the twin strategy of loosening the
traditional rules of locus standi, and relaxing procedural rules in such cases.
Thus where it receives a letter addressed to it by an individual acting pro
bono publico, it may treat the letter as a writ initiating legal proceedings. In
appropriate cases it has appointed commissioners or expert bodies to
undertake fact-finding investigations. Thus, the mechanism of PIL now
serves a much broader function as It is being used to ventilate public
grievances where the society as a whole, rather than a specific individual,
feels aggrieved.

By virtue of these Article 32 and 226 , the Supreme Court and high
court has enlarged the scope of the Judicial Review to include review of all
those measures, which either violate the Fundamental Rights or which are
violative of the Basic Structure of the Constitution. The power of Judicial
Review exercised by the Supreme Court is intended to keep every organ of

312
the state within its limits as it is in America where rule of check and balance
prevails. Article 32 of constitution itself has been described as fundamental
right as well as an integral part of the Basic Structure of the Constitution.
So the validity of a law could be challenged under the Article 32 if it
involves a question of enforcement of any Fundamental Rights.

Hence, the jurisdiction of a High Court is not limited to the


protection of the Fundamental Rights but also of the other legal rights as is
clear from the words “any other purpose”. The concurrent jurisdiction
conferred on High Courts under Article 226 does not imply that a person
who alleges the violation of the Fundamental Rights that must first
approach the High Court, and he can approach the Supreme Court directly.
This was held in the very first case Ramesh Thapper vs. State of Madras.

But in P.N. Kumar vs. Municipal Corporation of Delhi111 the


Supreme Court expressed the view that a citizen should first go to the High
Court and if not satisfied, he should approach to the Supreme Court.
Innumerable instances of the Human Rights violation were brought before
the Supreme Court as well as the High Courts. Supreme Court as the Apex
Court devised the new tools and innovative methods to give effective
redressal.

The traditional rule is that the rights to move the Supreme Court is
only available to those whose Fundamental Rights are infringed. People
who are not interested in the subject matter of the order have no Locus
Standi to invoke the jurisdiction of the court. But the Supreme Court has
now considerably liberalized the above rule of Locus Standi. The court now
permits the “public spirited persons to file a writ petition for the
enforcement of Constitutional and statutory rights of any other person or a
class, if that the person or a class is unable to invoke the jurisdiction of the
High Court due to poverty or any social and economic disability. The
111
1988 SCR (1) 732, 1987 SCC (4) 609

313
widening of the traditional rule of Locus Standi and the invention of Public
Interest Litigation (PIL) by the Supreme Court was a significant phase in
the enforcement of the Human Rights.

In S.P. Gupta vs. Union of India and others, the seven member
bench of the Supreme Court held that any member of the public having
“sufficient interest” can approach the court for enforcing the Constitutional
or the legal rights of those, who cannot go to the court because of their
poverty or other disabilities. A person need not come to the court personally
or through a lawyer. He can simply write a letter directly to the court
complaining his sufferings. Speaking for the majority Bhagwathi, J. said
that any member of the public can approach the court for redressal where, a
specific legal injury has been caused to a determinate class or group of
persons when such a class or person are unable to come to the court because
of poverty, disability or a socially or economically disadvantageous
position. In the instant case, the court upheld the right of lawyers to be
heard on matters affecting the judiciary. By this judgments the Public
Interest Litigation (PIL) have become potent weapons for the enforcement
of “public duties” where executed inaction or misdeed resulted in public
inquiry.

While expanding the scope of the “Locus Standi”, Bhagwathi, J.


expressed a note of caution and observed “but we must be careful to see
that the member of the public, who approaches the court in case of this
kind, is acting bonafide and not for the personal gain or private profit or the
political motivation or the other consideration. The court must not allow its
process to be abused by politicians and other”. Hence the court was aware
that this liberal rule of the Locus Standi might be misused by vested
interests. As a result of this broad view of Locus Standi permitting Public
Interest Litigation or the Social Action Litigation, the Supreme Court of
India has considerably has widened the scope of Article 32 of the

314
Constitution. The Supreme Court has the jurisdiction to give an appropriate
remedy to the aggrieved persons in various situations. Protection of
pavement and slum dwellers of Bombay, improvement of conditions in
jails, payment of Minimum Wages, protection against Atrocities on Women,
Bihar blinding case, Flesh trade in protective home of Agra, Abolition of
Bonded Labourers, Protection of Environment and Ecology are the
instances where the court has issued the appropriate writs, orders and
direction on the basis of Public Interest Litigation.

The advent of Public Interest Litigation (here in after referred to as


PIL) is one of the key components of the approach of “Judicial Activism”
that is attributed to the higher judiciary in India. The verdict of Bhagwati, J.
in M.C.Mehta vs. Union of India, opened the doors of the Apex Court of
India for the oppressed, the exploited and the down – trodden in the villages
of India or in urban slums. The poor in India can seek enforcement of their
Fundamental Rights from the Supreme Court by writing a letter to any
judge of the courts even without the support of an Affidavit. The court has
brought legal aid to the door steps of millions of Indians which the
executive has not been able to do despite that, an amount of money is being
spent on new legal aid schemes operating at the central and state level.

The Supreme Court of India has used the strategy of Public Interest
Litigations as an aid to enforce the rights of prisoners, workers, pensioners,
victims of environmental pollution and others. The Public Interest
Litigation plays an important role in ensuring the Principle of Rule of Law
by making the administration is accountable to the people. The Supreme
Court of India in Narmada Bachao Andolan vs. Union of India held that
Public Interest Litigation was an invention essentially to safeguard and
protect the Human Rights of those people who were unable to protect
themselves.

315
Public Interest Litigation (PIL) is a weapon which has to be used
with care and caution. The judiciary has to be extremely careful to see that
whether it contains public interest or private vested interest. The courts are
now imposing moderate to heavy costs in cases of misuse of Public Interest
Litigation which should be an eye opener for non–serious Public Interest
Litigation mover.

The Reformation, as the objective of punishment: Krishna Iyer, J.


was the person who advocated strongly for orienting reformative treatments
of prisoners in the prison. In all his judgments he tried to incorporate the
reformative values into the prison administration. The concept of the crime
was also redefined by the judges at his time. It was observed that:

“Crime is a pathological aberration that the criminal can ordinarily


be redeemed that the state has to rehabilitates rather than avenge. The sub-
culture that leads to the anti-social behavior has to be countered not by
undue cruelty but by re-culturisation. Therefore, the focus of interest in
penology is individual and the goal is salvaging him for the society. The
infliction of the harsh and the savage punishment is thus a relic of past and
regressive times”.

The above judgment conveys that the right influence of the


international human rights doctrine over the Indian judiciary. The Court in
the Giasuddin emphasized that, on the Gandhian approach of treating
offenders as patients and therapeutic role of punishment. The Supreme
Court after the considerations of all the circumstances of the appellant
directed that the sentence should be reduced to 18 months. The court also
directed, guarded parole release every 3 months for at least a week
punctuating the total prison terms and the assignments of the suitable
mental cum-manual work and payment of wages in jail. The appellant had
been ordered to pay fine of Rs. 1200/- to be made over the victim of
deception under Section 357 of the Cr.P.C. Krishna Iyer, J. delivering the

316
judgments have also pointed out that the judge must use wide range of
powers in reformatting the criminal before him. Thus the concept of the
reformation was planted even out of the four walls of prison by this
judgment.

Free from torture and cruel treatment: Supreme Court in many


instances made it clear that the prison treatments in the prison should not be
caused any kind of torturous effect over the inmates. Even the practice of
the separate confinement and the solitary confinement was deeply
discouraged by courts at many instances. The court clearly has pointed out
that the prison authorities cannot make prisoners to solitary confinement
and hard labor. As to ensure the prison practices the Supreme Court in this
judgment also directed the district magistrates and the sessions’ judges to
visit the prisons in their jurisdiction and afford effective opportunities for
ventilating legal grievances. They were to make the expeditious enquiries
and take a suitable remedial action. Thus the concepts of the judicial
policing were recognized by the Supreme Court through this judgment.

Discussing the same premise the court vehemently criticized that the
practice of using bar fetters unwarrantedly. The court held the treatment of a
human being which offends human dignity, imposes avoidable torture and
reduces the man to the level of the beasts, would certainly be arbitrary and
questionable under Article 14. Thus putting bar fetters for a usually long
period, day and night, and that too when the prisoner is confined in secure
cells from where escape is somewhat inconceivable without any due regard
for the safety of the prisoner and the security of the prison is not justified.
Judicial interferences of this kind have coined many rights for the prisoners
what would not be unless ever possible. It will be nice to quote Krishna
Iyer, J. at this occasion. He remarked:

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“Society must strongly condemn crime through punishment, but
brutal deterrence is fiendish folly and is a kind of crime by
punishment. It frightens, never refines; it wounds never heals”.

The message of reformation through the prison treatment has to be


there in every measures adopted by the authorities in the prisons. The
human right to be safe in the prisons as mandated by the international
human rights law is being incorporated into Indian law by judicial
initiatives. International law gives the widest possible protections to the
prisoners in the prison from the tortures and that kind of a protection can
only be accommodated by legislature.

Maladministration in prison: Every prisoner has the right to enjoy


all the rights entrusted to a normal human being subjected to reasonable
restrictions by the international human rights law. The prison authorities are
bound to look after the management of prisons with this outlook. So it can
be powerfully argued that any lapses in the management of prison will also
cause infraction over the human rights of prisoners. The view of Indian
judiciary also accompanies this view to a greater extent. Talking about the
mismanagement in prison, apart from the official lapses the maintenance of
discipline between the prisoners will also be of high concern. The Indian
prison experiences even made the Supreme Court to ask whether the prison
term in Tihar jail is a post graduate course in crime. Serious allegations
were made against the unhealthy relations between jail authorities and
criminals and thereby causing certain kind of misappropriations of jail
funds. The same have been going on in the present days and only few years
back, the Supreme Court ordered to launch a prosecution against certain
Superintendents and other jail officials for offences punishable under Ss.
120B, 217 & 218 of the Indian Penal Code. Concluding the judgment in
Asha Arun Gawali, court shockingly observed that:

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“…norms relating to entry of persons to the jail, maintenance of
proper records of persons who entered the jail have been observed
more in breach than in observance and the rules and regulations
have been found thrown to the winds … What is still more shocking
is that the persons have entered the jail, met the inmates and hatched
conspiracies for committing murder. The High Court appears to have
justifiably felt aghast at such acts of omissions and commissions of
jail officials which per –s e constituted offences punishable under
various provisions of the IPC and has therefore, necessarily directed
the launching of the criminal prosecution against them, besides
mulcting them with exemplary costs”.

The message of reformation is indefensibly spoiled at the consent


and convenience of jail authorities and the same went against the basic
aspirations of human rights law. The court in many instances stressed on the
need to provide proper atmosphere, leadership, environment situations and
circumstances for re-generation and a reformatory approach. Illegal
accomplice between criminals and prison officials make all these aims in
vein.

Freedom of speech and expression: Prisoners, alike others, can


access many human rights made in Universal Declaration of Human Rights
and international covenants. Indian judiciary had also recognized that the
right of the prisoners to enjoy the right to freedom of speech and
expression. It is much interesting to note that the judiciary took such a view
before the Kesavanada Bharathi judgment came and evolution of the
concept of justice as fairness. Alongside with this, it is worthwhile in
discussing about the judicial declarations of the right of press to interview
prisoners. This judgment has certain implications over the right of the
prisoners in exercising their right to the freedom of speech and expression.

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A Writ Petition filed under the Article 32 by the Chief reporter of the
newspaper Hindustan Times Smt. Prabha Dutt seeking a writ of mandamus
or order directing the respondents Delhi Administration and Superintendent,
Tihar jail to allow her to interview the two convicts Billa and Ranga who
were under a sentence of death, whose commutation petition to the
President were rejected. The Court held the restricted rights to interview the
prisoners subject to their willingness to attend the same. The freedom of the
press person to interview an under trial prisoner will not be alike that of the
prisoner sentenced to death. Supreme Court remarked that the right to
interview a prisoner will not become an exclusive right as in the case of the
life convicts and it should be decided on merits depending on each case.

***

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Chapter - 6

REFORMATIVE
APPROACH TOWARDS
PRISON SYSTEM
CHAPTER 6

REFORMATIVE APPROACH
TOWARDS PRISON SYSTEM

6.1 INTRODUCTION

“Prisons are built with stones of law and so it behoves the court to
insist that, in the eye of law, prisoners are persons. not animals, and punish
the deviant guardians of the prison system where they go berserk and defile
the dignity of the human inmate. Prison houses are part of Indian earth and
the Indian Constitution cannot be held at bay by jail officials dressed ill a
little, brief authority, when Part III is invoked by a convict. For when a
prisoner is traumatized, the Constitution suffers a shock, And when the
Court takes cognizance of such violence and violation, it does, like the
Hound of Heaven, but with unhurrying chase, and unperturbed pace,
deliberate speed, and majestic instancy follow the official offender and
frown down the outlaw adventure”

The above quoted piece from the lucid judgment penned by the great
judge of the Supreme Court of India and a champion jurist of human rights
Mr Justice V R Krishna lyer, in the case of Sunil Batra v. Delhi
administration,1 which is the guiding torch for all those who officially deal
with the prisoners. Since Independence, prison administration in the
country has been a matter of intense debate and criticism at various public
forums. In the recent times, the Supreme Court of India has come down
heavily on the sub-human conditions obtaining in prisons. In many States,
the problems of dilapidated prison structure, overcrowding and congestion,

1 AIR I98OSC 1579.

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increasing proportion of the under trial prisoners, inadequacy of the prison
staffs, lack of proper care and treatment of prisoners, etc., have been
engaging the attention of the press and social activists. With a growing of
advocacy for the protection of the human rights in the various walks of
lives, the plight of prisoners has emerged as a critical issue of public policy.
Prisons have started getting much attention since past 15-20 years. Now,
India is preparing to sponsor the phase of prison modernization scheme. It
aims at the construction of more prisons, staff quarters and the renovations
of old buildings. Under the new phase, usage of technology in Prison
Management is added. A lot of the changes have been witnessed in the
management of prisons regarding issues of security, custody, inmates and
staff of prisons.

Prisons, as institutions, are barely considered when it comes to State


budgets. Though the budgets are fixed and allocated, but they never suffice
and the money sometimes never reaches the proper hands. As a result,
prisons find themselves starved of adequate funding. This systematically
constructed the isolations of our prisons deflects the gaze of civil society
institutions, which includes the Media. Due to this, all the steps taken for
the proper management of the prisons become unfruitful. The concept of
prison system can be observed from two paradigms, naively as the mode of
punishment and as the mode for punishment and the two are mutually
exclusive. The subject of ‘prison reforms’ is the domain of the first
paradigm, where one views imprisonment as punishment and not for
punishment in the sense that curtailment of liberty in itself is recognized as
a legally sanctified punishment and any further infliction in the form of
deliberate or callous deprivation of humane conditions in jail is an
unconstitutional aggression on the prisoner.

Prisoners are peculiarly doubly handicapped. For one thing, most


prisoners belong to the weaker segment, in poverty, literacy, social station

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and the like. Secondly, the prison house is a walled-off world which is
incommunicado for the human world, with the result that the bonded
inmates are invisible, their voices inaudible, theft injustices unheeded. So it
is imperative, as implicit in Article 21 of the Constitution of India that life
or liberty shall not be kept in suspended animation or congealed into animal
existence.2

In India a number of committees, commissions, jurists,


criminologists, authors and even judicial pronouncements extended vast
range of recommendations and suggestions towards reforms in prison
system, but they were not of much conspicuous avail.Condition of prisoners
in India remained miserable for long which treated imprisonment as
punishment and not for punishment.

During the period 1979-80 India witnessed various widespread


agitations by the prison staff as well as prison inmates demanding improved
service conditions and improved living conditions in jails the agitations also
turned violent in some states and union territories, So, the Government of
India, taking stock of the situation set up through the Ministry of Home
Affairs, the All India Committee on Jail Reforms on 25 July 1980 under the
chairmanship of Mr Justice Anand Narain Mulla. With its terms of
reference spread across nine clauses ranging from review of laws governing
the prison managements, to recruitment policies, to living conditions in
jails, to systems of open air prisons, remissions and specialized treatments
for women, juveniles and sick, the Committee was specifically asked to
look into the affairs of Tihar Jail. Three years of extensive research by the
Mulla Committee culminated into a two volume historical document in the
form of report in the year 1983.

2 Sunil Batra (II) v, Delhi Administration, (1980) 3 SCC 488.

323
Later, under the judicial directions of the Supreme Court of India in
the case of Ramamurthy v. State of Karnataka,3 the work of looking into
status of implementation of the recommendations of Justice Mulla
Committee was assigned by the Ministry of Home Affairs to the
Correctional Administration Division (that had been created in the year
1995 in the Bureau of Police Research and Development, Ministry of Home
Affairs), which started its work in the month of June, 2001 and came out
with its report in the year 2003. The 2003 report read the recommendations
of the 1983 Mulla Committee report into two categories, namely, the goal
oriented recommendations and the actionable recommendations; the latter
was further sub-divided into the recommendations for the Government of
India and the recommendations for the states and the union territories.
Relating to the actionable recommendations, a detailed questionnaire was
prepared and sent to all the states and the union territories, who responded
to the same and on the basis of computerized tabulation, recommendation
wise report was prepared by the Correctional Administration Division. This
report is a classic exhibit of the non serious manner in which such scholarly
researched prison reform recommendations have been dealt with.

The Model Prison Manual compiled by the Bureau of Police


Research & Development, is a perfect document to look into proper
maintenance and management of prisons and it is necessary for the States to
observe with the guidelines given in it in every possible way.Moreover, the
Draft of National Policy on Prisons formulated by the All India Committee
on Jail Reforms of 1980-1983 lays certain express guidelines that State
shall endeavor to bring about the basic uniformity in the minimum
standards of the management of the prisons and the treatment of offenders
in the country. It further suggests incorporation of the principles of
management of prisons and treatment of offenders in the Directive

3 AIR 1997 SC 1739.

324
Principles of State Policy embodied in Part IV of the Constitution of India
and also lays the emphasis on the inclusion of subject of prison and allied
institutions in the Concurrent List of Seventh Schedule to the Constitution of
India. The Judiciary should also play an active role and it should keep an
eye on the working of prisons. It is the directive of the Supreme Court that
there should be nomination of Lawyers by the Judiciary to visit prisons as
part of the visitorial and supervisory judicial role. Periodical visits by
District Magistrates and Sessions Judge should also be made. Management
and the maintenance of prisons need to be given more emphasis in the
affairs of the country. Prison should be made as much a public institution
as a university or hospital and there is a need to remove its isolation and
must integrate it functionally and physically into the society for, only then,
the Prison Manual so prepared will become useful.

6.2 LEGISLATIVE AND CONSTITUTIONAL STEPS

Prison is a state subject according to item number 4 in the State List


(List-II) of the seventh schedule to the Constitution of India. According to
Article 246(3) of the Constitution of India, the legislature of any state has
the exclusive power to make Jaws for such state or any part thereof with
respect to any of the matters enumerated in the List II in the seventh
schedule. However, Article 252 of the Constitution provides that two or
more states may by resolution in their respective state legislatures authorize
Parliament, to enact a central legislation on a state subject. The Union of
India can thus consider enactment of law relating to prisons’, only on
receipt of requests from two or more states.

As noted in the above described 2003 report of the Correctional


Administration Division, Bureau of Police Research and Development,
Ministry of Home Affairs, the Central Government in the Ministry of Home
Affairs requested the State Governments to pass resolutions under Article
252 of the Constitution for enactment of a new Prisons Act to replace the

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existing Prisons Act, 1894, but did not receive the requisite response from
the State Governments.

This placement of the subject of prison system in the State List of the
seventh schedule to the Constitution is the root cause of immense disparity,
in the manner different prisons in the country are governed differently,
owing to differences in different socio-economic conditions of each state.
Recommendations of Justice Mulla Committee to formulate directive on
National Policy on Prisons and to embody the same in part IV of the
Constitution and also for inclusion of the subject of prisons and allied
institutions in the Concurrent List of the seventh schedule of the
Constitution of India were not accepted by the Government. In order to
bring about uniformity in the state approach to the philosophy underlying
and practical modalities in administration of prison system across the
country, the constitutional amendments on the above lines are definitely the
need of the hour.

One interesting revelation by the Tihar Jail authorities is that influx


of petty offenders, belonging to lower financial strata of society increases
substantially with the onset of winters. For, the destitute and homeless
compelled by the need for shelter and warmth of necessary clothes and
bedding, commit petty offences and after getting arrested, do not seek bail
so that at least during the peak winters, they could get protective shelter
from winter chills. This revelation, on the face of it, sounds of the
authorities’ scant regard for the individual liberty, in the sense that why
would someone barter his liberty just to get a roof over his head
temporarily, with one or two blankets. But a deeper look also makes it
sound not unbelievable, looking into the state of living standards for the
destitute and homeless, even in Delhi, the capital of our country. With this
backdrop, it is suggested that the maintenance of jails and prison
establishment being an expensive burden on the public exchequer, the
offenders should be confined to prison for only a minimum period which is

326
absolutely necessary for their custody. Such an approach is from the angle
of not just reducing the financial burden on the system but also a reasonable
solution to overcrowding in jails.

Towards reform of prison through active inspection by judiciary

At the level of subordinate judiciary, the interaction with prisoner is


mainly by the Magistrates as: trial judges and by the Additional Sessions
Judges as trial judges and as jail inspecting judges. Role of trial judges at
both levels is no doubt significant but the role of the jail inspecting judges
is of utmost importance. For, it is the jail inspecting judges who are
entrusted with the solemn duty to ensure protection of human rights of
prisoners and adherence to the legal tenets laid down in various judicial
pronouncements qua the prison system.

The judges, especially the jail inspecting judges should not be


oblivious to the strict positivist approach to law that the prisoner is liable to
only that punishment, which is legally sanctified. Hatred towards the
prisoner, being the domain of morality should find no place in the work of
judges. Legally sanctified punishment in case of imprisonment is only in
the form of curtailment of liberty of the prisoner. In case of undertrial, the
imprisonment is not even in the form of punishment strict sense, the limited
purpose of undertrial detention is to ensure availability of the accused to
face trial. Any infliction inside the prison over and above curtailment of
liberty is nothing hut an unconstitutional slate aggression against the
undertrial or convicted prisoner. In view of this underlying philosophy, the
judges dealing in any capacity whatsoever with the prisoners must be
extremely sensitive. For, they are dealing with a person hated and discarded
by the society for his wrongs (and at times, even for his no wrong) and such
a person has nobody to hear his cry for protection against an
unconstitutional aggression against him. Judges cannot hate a criminal, for;
hate is the prerogative of the domain of morality.

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Reference of the Delhi Prisons (Visitors of Prisons) Rules. 1988

The Delhi Prisons (Visitors of Prisons) Rules. 1988, (hereinafter


referred to as ʻthe Rulesʼ) framed by the Administrator of the Union
Territory of Delhi in the exercise of powers conferred by clause (25) of
section 59 of the Prisons Act 1984, stipulates a panel of various persons,
authori2ed and also duly bound to visit the jails in Delhi, with specific
objects aimed at protecting the abrogation of the rights of prisoners. Rule
2(1) contemplates two sets of visitors, viz ex-officio and official or non
official visitors. Rule 2(2) enlists the ex-offlcio visitors of every jail within
the areas under their respective charge or jurisdiction, namely
Secretary(Home) Delhi Administration; Commissioner of Police; District
and Sessions Judges; District Magistrates; and Director, Social Welfare
Department, Delhi Administration, Rule 3 contemplates that Commissioner
of Police and Sessions Judges are required to visit the jails once in three
months and once a month respectively, while District Magistrates are
required to visit the jails once fortnight

In Delhi owing to topography of jails and work exigencies, this duty


to visit jails is delegated by the Sessions Judge to some of the Additional
Sessions Judges, who visit every alternate month the jail assigned to them,
Like all jail visitors, every jail inspecting Additional Sessions Judge
(hereinafter referred to as ‘the Inspecting Judge’) has enjoined duty to
satisfy himself that the provisions of the Prisons Act, 1894, and all rules,
regulations, orders mid directions made thereunder are duly observed. For
the said purpose, vide Rule 4 of the Rules the inspecting judges, like every
official visitor are authorized to examine all or any of the hooks, papers and
records of any department of the jail and to interview any prisoner and hear
his complaints or representations. Detailed report of each jail inspection is
submitted by the inspecting judge through the Sessions Judge to the Delhi
High Court, from where affirmative appropriate directions are issued to the
all authorities.

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Rule 13 of the Rules elaborately enlists the duties of the jail visitors
to inspect the barracks, cells, wards, work shed and other buildings of the
jail generally and the cooked food, to ascertain whether considerations of
health, cleanliness and security are attended to, whether proper management
aid discipline are maintained in every respect, and whether any prisoner is
illegally detained, to examine jail registers and records, to hear and attend
to all representations and petitions made by or on behalf of prisoners and
direct, if deemed advisable, that any such representation or petition be
forwarded to the government. In this regard, Rule 16(2) also contemplates
that the visitor is authorized to direct the escort to withdraw from earshot of
the prisoner, so as to permit private communication between the visitor and
the prisoner.

In order to ensure that during the intervening period of about two


months between the two consecutive jail visits of the inspecting judge, the
prisoner is not rendered unprotected, Delhi has the system of the prisoners
writing their complaints or representations to the inspecting judge. Such
complaints can be submitted by the prisoner either personally on the date
fixed for his trial or appearance in the trial court or through some fellow
prisoner, who is scheduled to appear in the court. Where the complainant
prisoner or his fellow prisoner have to appear before the court other than the
court of his jail inspecting judge, he makes a request to be produced before
the inspecting judge and the same is allowed by the trial court. There is no
fixed time prescribed for such appearances of the prisoners before the
inspecting judge; many a times much after the court sitting hours and at
times even when the inspecting judge has already boarded his car to return
home in the late evening, the prisoner is produced and the inspecting judge
is duty bound to hear his grievance and take appropriate action.

Another role assigned to the jail inspecting judge is approval or


disapproval of the punishments proposed to be imposed on the prisoners by

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the jail authorities for various acts of indiscipline and misconduct inside the
jail. The jail superintendent, having found a prisoner guilty of some act of
indiscipline or misconduct inside the jail, proposes to impose a punishment
on the delinquent prisoner and sends the proposal to the Sessions Judge,
who in turn, refers the punishment proposal to the concerned inspecting
judge. The said proposal is in the form of a punishment slip, describing the
misconduct in a few sentences. The punishments are mainly in the form of
stoppage of one or more meetings with the delinquent prisoner’s
visitors/family and forfeiture of the offending material like currency and
canteen coupons etc.

Mostly the proposed punishment is stoppage of family meetings of


the prisoner for a few days or weeks. This has deleterious effect on
reformation of the prisoner. The motive of jail officials in playing such
mischief as described above or proposing excessive punishments ranges
from deep rooted biases and hatred against the criminals to means of
extortion of money or favours from the prisoner or his family. Here, role of
an inspecting judge becomes very crucial in upholding the constitutional
values.

Supervision of Legal and Medical Aid

Lack of free and competent legal aid in jails is another malady that
abrogates the fundamental rights of the prisoners and it is a part of the
duties of the inspecting judge to ensure appropriate remedy. Inspecting
judge must interact personally with the prisoners to ascertain if the free
legal aid counsel appointed by the authorities is regularly visiting the jail or
not and whether the free legal aid counsel is demanding any money from
the inmates in the name of any photocopying, translation, tiling expenses
etc. and if so, the inspecting judge must convey the same to the concerned
legal aid authority, recommending prompt action. The inspecting judge
must also ascertain as to whether the appeals or bail applications etc. are

330
being timely and promptly filed by the free legal aid counsel or not and in
case required, must recommend action.

Medical aid for the prisoners is most commonly found to be lacking


in jails. During the jail inspections and even otherwise, the jail inspecting
judge gets many applications of prisoners complaining lack of appropriate
medical treatment. Most of the jails have an in-house jail dispensary,
managed by one or two doctors, but the same are not sufficiently equipped
to deal with any major ailment. Many a times, the doctors posted in such
dispensaries are so posted against their will and with no specialized
counseling as regards dealing with prisoners. Prisoners, owing to their
circumstances, have a peculiar thought process that needs to be understood
with compassion and patience, at least by the doctors. But it has been often
found that the jail doctors nurture harsh biases against the prisoners and
believe that the prisoners do not deserve any sympathetic treatment and
must suffer as they also made someone suffer by their crime. This is
systemic problem, where the doctor is posted in jail, without being
counseled about the manner in which a prisoner must be dealt with, keeping
in mind the reformative approach. For the doctor, a patient must be a patient
only and not criminal, as to punish him is not the job of the doctor.

Another important issue, which a jail inspecting judge must look into
is impartial and equitable distribution of wage related work for the prison
inmates. Often there are complaints that the jail authorities allocate wage
paying work only to few of the selected prisoners and demand bribes or
commissions from wages also. There are also instances where jail officials
demand bribe in order to get transferred the wages earned by a prisoner in
the previous jail to his present jail, where he was shifted after transfer. Jail
inspecting judge must take serious note of such complaints, in order to
protect the fundamental rights of such prisoners.

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6.3 TECHNIQUES OF PRISON REFORMS

The institution of prison is meant to serve the dual purpose of


keeping away criminals from society and reformation followed by
rehabilitation of the criminals. This objective is achieved under an
institutional treatment whereby the system scientifically eliminates the
conditions, which are found responsible for converting an individual into a
criminal. Present day penal philosophy incorporates the prisoners’ after-care
service also as an integral part, which correctional service presupposes
active help and guidance to the discharged prisoners through counseling
and surveillance. The process is titled ‘Released Person’s Convalescence’
The desired goal of reformation and/or rehabilitation of criminals is
achieved through various tools and techniques in the institution of jail.
Some such tools and techniques are discussed following

6.3.1 Probation

The word ‘probation’ arose from the latin word probatio, which
means ‘to test’ and the concept has historical roots in the practice of judicial
reprieve. In English common law, prior to the advent of democratic rule, the
courts were empowered to temporarily suspend the execution of a sentence
and allow a convict to submit appeal to the monarch seeking pardon. The
concept of probation, in its initial form first developed in the US when John
Augustus, a Boston cobbler, persuaded a judge in the Boston police court in
the year 1841 to give him the custody of a convicted alcoholic offender for
a short period and then helped the man to appear rehabilitated by the time
of sentencing.

Probation, a very significant tool of reformatory penology, is


basically a period during which the convict ordered to undergo sentence,
remains, instead of being in prison, under supervision. It is a treatment
device, developed as a non- custodial alternative which is used by the

332
criminal courts after guilt of an accused is established and the court
considers that imposing a prison sentence would do no good, since
imprisonment damages scope for the convict to readjust in the normal
society after the release and his association with professional criminals in
jail often has undesired effects. A convict on probation has to follow certain
conditions set forth by the court, often under the supervision of a probation
officer. During this period, the convict faces the threat of being sent back to
prison, if found breaking the rules or misusing liberty. Thence, the release
of the convict on probation serves as a reformative treatment plan
prescribed by the convicting court, and in the course of this treatment, the
convict on probation lives within his community and modulates his own life
under conditions imposed by the court, and remains under the supervision
of a probation officer. Such a suspension of sentence during probation
serves the dual purpose of deterrence for the convict (by acting as a threat
of his being subjected to unexhausted sentence) and of reformation (by
providing necessary help and guidance to the probationer in his
rehabilitation).

The United Nations has recommended the adoption and extension of


the probation system by all countries as a major instrument of policy in the
fie]d of prevention of crime and the treatment of the offenders. The tool of
probation is employed in many countries while dealing with the problem of
reformation efforts with characters peculiar to suit the system concerned. In
almost all systems, the convict under probation is required to refrain from
being in possession of firearms, and may be ordered to remain employed,
live at a directed place, obey the orders of the probation officer, and not
leave the prescribed limits of territorial jurisdiction. The convict under
probation is also prohibited from contacting the victims as well as the
potential victims of similar crimes or known criminals, particularly co-
convicts. Additionally, the restrictions can include a ban on possession or

333
use of alcoholic beverages, even if alcohol was not involved in the original
criminal charges.

In some systems, the convict under probation is also compulsorily


made to wear an electronic tag or GPS anklet, which signals his
whereabouts to the probation officer. Intensive probation, home detention,
GPS monitoring and Computer Management etc are highly intrusive forms
of probation in which the convict is very closely monitored, and it is
common for violent criminals, high ranking gang members, habitual
offenders, and sex offenders. Some systems even require the convict under
probation to waive off their constitutional rights regarding search and
seizure, and such probationers may be subject to unannounced home or
workplace visits, surveillance, and the use of electronic monitoring or
satellite tracking. GPS monitoring and home detention, are commonly used
in juvenile cases, even if the underlying delinquency is minor. Computer
management at a minimum involves installing monitoring software and/or
conducting computer searches in order to ascertain the online activities of
the convict under probation. Generally, under standard supervision during
probation, the convict is required to report to an officer, mostly bi-weekly
or quarterly, and is subject to any other conditions as may have been
ordered, such as alcohol/drug addiction treatment, and community service
etc. Then, there is unsupervised probation, which does not involve direct
supervision by a probation officer and the convict is allowed to go to his
workplace, educational institution, or place of worship etc. with the
requirement to meet with a probation officer at the onset or-near the end of
the probationary period, or at times even not at all. Probation, thence serves
as an important tool of reformation of a convict, as it keeps the convict
away from the criminal world and fear of punishment in case of violation of
probation law has a psychological deterrent effect on the convict. Thus,
probation indirectly prevents a criminal from adopting a vengeful attitude

334
towards the society at large and complainant in particular. The release of the
convict on probation also saves him from stigma of imprisonment and thus
prepares him for rehabilitation.

Supervision of the convicts released on probation must be made


mandatory in all cases. Scope of powers as well as duties of the probation
officer also need to be widened in the sense that if satisfied, the probation
officer may recommend the discharge of the convict undergoing probation
and it be left to the judgment of the probation officer to decide about
necessity to vary an order of probation. At the same time, there must also be
some complaint redressal mechanism to deal with the instances of not just
malpractices, but even inaction amongst the probation officers. The
provisions under the Probation of Offenders Act, 1958, and the Criminal
Procedure Code, 1973, need to be amended and brought in tune with the
Juvenile Justice (Care and Protection of Children) Act, 2000, which
stipulates more detailed procedures pertaining to the agencies dealing with
the juveniles.

One major area which direly needs improvement is the efficiency of


those manning the institution of probation. Presently, the task of the
probation officers is not given much importance in India and their role in
the system is considered to be a mere formality. However, if utilized
properly, they could be most effective. At the entry level itself, it needs to
be systematically worked upon. Those seeking to enter the system as
probation officer must be equipped with at least the basic degree in
disciplines like criminology, social work or psychology etc. At the same
time, the quality of probation work can be improved by making the service
conditions of the probation staff more lucrative, which will attract well
qualified and competent persons to the occupation. A nationwide uniform
scheme of training for probation personnel with emphasis on social work
and rehabilitative techniques would serve a useful purpose to improve the

335
efficacy of probation service in India. Probation officers must be provided
an intense on-the- job training aimed at inculcating in them a missionary
zeal for the welfare of the criminals being dealt with by them.

We need to work on even the subjects of the system, the convicts


undergoing probation. There needs to be made an increased investment on
correctional services, especially for the poor, illiterate and unskilled
convicts undergoing probation. That would be more productive not only in
reducing crime but also in improving the quality of life among the strata
they come from and are ultimately to return to. There must be financial
support mechanism for such convicts, so that they can engage in small scale
income generating activities.

6.3.2 Parole

Originating from French, the word parole means voice’ or ‘spoken


words’; gradually the term parole became associated during the Middle
Ages with the release of prisoners who gave their word to return and
undertake the remaining part of sentence. Historically, parole is a concept
known to military law, where it denoted release of a prisoner of war on
promise to return. Parole in the present day criminal justice system
connotes the provisional release of a prisoner who agrees to certain
conditions prior to the completion of the maximum sentence period. The
life in a prison is so rigid and restrictive that it hardly offers any opportunity
for the offender to rehabilitate himself. It is, therefore, necessary that in
suitable cases the prisoner be released under proper supervision from the
prison institution after serving a part of sentence imposed upon him, as a
matter of efforts to rehabilitate him in the society. This object is
accomplished by the system of parole which aims at restoring the prisoner
to society as a normal law abiding citizen. Parole, in other words, is the
release from a penal or reformative institution, of a criminal who remains
under the control of correctional authorities in an attempt to find out

336
whether he is fit to live in the free society without supervision. It is thus the
last stage in the correctional scheme, of which probation may probably be
the first.

Donald Taft, characterizes parole as a release method which retains


some control over the prisoner, yet permits him more normal social
relationships in the community and provides constructive aid at the time he
most needs it4 According to Taft, parole is a release from prison after part of
the sentence has been served, the prisoner still remaining in custody and
under stated conditions until discharge and liable to return to the institution
for violation of any of those conditions. Dr Sutherland describes parole as
the liberation of an inmate from prison or a correctional institution on
condition that his original penalty shall revive if those conditions of
liberation are violated.

The ultimate significance of parole is that while retaining effective


control over him, it enables the prisoner a free life. Under the scheme, every
prisoner is carefully studied and the one who shows potential for correction
and responds favourably to the disciplined life inside the prison, is allowed
considerable liberty and finally released to join the society conditionally.
Thus, parole is essentially an individualized method of treatment of
offenders and envisages a final stage of adjustment of the incarcerated
prisoner to the community. The conditional release from prison under
parole may begin anytime after the inmate has completed at least one third
of the total term of his sentence but before his final discharge. The object is
to adjudge the adjustability of responsive prisoner to the normal society by
offering him suitable opportunity to associate himself with outside world.

Parole is taken as an act of rehabilitation curriculum and not as a


matter of prisoners right, the prisoner may be released on parole on the
condition that he abides by the promise. It is a provisional release from
4 Taft and England, Criminology, Macimillian, 4th Edition. 1964, p 485.

337
confinement but is deemed to be a part of the imprisonment. Release on
parole is a part of the reformative process and is expected to provide
opportunity for the prisoner to transform himself into useful citizen. Parole
is thus a grant of partial liberty or lessening of restrictions to a convict
prisoner, but release on parole does not in any way, change the status of the
prisoner. Parole does not mean suspension of sentence. The period of parole
is counted towards the total sentence of a prisoner.

In India, seeds for prison reforms were mainly sowed by the political
prisoners, who repeatedly launched protests with the prison authorities and
made all possible efforts to see that the rigours of prison life were mitigated
and prisoners were humanly treated. Besides, the reformative global trend
in penology, which was gaining momentum, also stimulated the cause of
correctional methods of treatment of offenders in India. It was realised that
confining the convicts in closed prison cells hardly serves any useful
purpose.

6.3.2.1 Parole system dealt under the Delhi Parole/Furlough Guidelines,


2010

In Delhi, the issue of parole is dealt under the Delhi Parole/Furlough


Guidelines, 2010, notified on 17 February 2010. The Guidelines intend to
regulate the applications for parole and to ensure that the same are
considered in a fair and transparent manner. As per Guidelines, the
objectives of parole could be amongst others, to enhance continuity with
family members; to maintain a minimum level of self-worth and
confidence; to develop a positive attitude and interest in life; to combat
inner stress; and to protect social ties.

The Guidelines contemplate to two kinds of parole, namely, custody


parole and regular parole. The custody parole is to be granted in emergent
circumstances like marriage of a family member or serious illness/death of

338
family member or any other emergent situation, gravity where of is to be
verified by the superintendent of the jail from the concerned police station
upon receipt of the parole application. Custody parole which has to be
granted by way of an order in writing by the superintendent of jail is for a
period not more than six hours excluding the time taken to reach the
destination and return to the jail. In custody parole, the prisoner is escorted
to the place of visit and return there from in safe custody and during the
period of custody parole, the prisoner is deemed to be in Application for
regular parole is considered by the Government on other grounds such as
serious illness of a family member, critical conditions in the family on
account of accident or death of a family member, marriage of a family
member, delivery of child by the wife of the convict if there is no other
family member to take care of the spouse at home, serious damage to life or
property of the family of the convict and to maintain social ties etc.

It must be stressed here that reformation of the parolee through


surveillance and assistance is the foremost object of parole. But neither of
the two to the exclusion of the other can make the system effective. Parole,
as a tool to be effective, must, therefore, inevitably include a combination
of both – surveillance and assistance, for its successful implementation.
Excessive supervision over parolees without proper guidance would
virtually mean that the parole authorities are performing the police
functions of keeping a close watch on the prisoner with an assumption that
he would definitely repeat the crime if not kept under surveillance.
Conversely, assistance to parolees without proper supervision will also
yield poor results. It is erroneous to think that parolees can reform
themselves merely by affording them ‘easy freedom’. It is a part of parole
authorities’ duty to ensure that the parolee makes the best use of the
opportunities placed before him after his release from prison. While
handling parolees, priority should be on the protection of society against

339
crimes rather than undue leniency towards the parolees. The essential
requisites of an ideal parole system may briefly be summarized thus:

1. Before release on parole, the parolee must be thoroughly prepared


for parole administration by the authorities.

2. The parolee must be assured an honourable employment and


favourable surroundings at the time of his release on parole, which
will inculcate hope, confidence and a sense of social responsibility in
him and would also help him in overcoming his guilt complex
arising out of his conviction.

3. Emphasis must be on supervision as well as guidance and assistance


to except parolee so as to make the system useful to the society in
general and the parolee in the in particular.

4. Since the parolee has to be rehabilitated within the society through


various
parole social agencies, it is desirable that the parole authorities
should seek active co as per operation of the public in this task.

Parole authorities should he completely free from political pressures


and le order, only persons of proven ability and integrity should be inducted
in these ons such authorities. Well qualified and trained personnel should be
recruited for this job.

At this stage, it would also be appropriate to take a glance into the


judicial approach to the concept of parole in India. A Constitution Bench of
the Supreme Court of India in the case of Sunil Fulchand Shah v. Union of
India,5 observed thus:

“The detenu is not a free man while out on parole. Even while on
parole he continues to serve the sentence or undergo the period of detention

5 2000 SCC (Crl) 659.

340
in a manner different than from being in custody, Parole does not keep the
period of detention in a stale of suspended animation”

Repeatedly, the Supreme Court of India has held that the purpose of
parole is three-fold: firstly. the use of parole as a motivational force for
reforming the prisoners; secondly, to keep the family tics intact as the
family ties are likely to be broken because of the long periods of
incarcerations; and thirdly, to slowly draw the misled soul back into the
folds of the society. Since punishment should be more reformative and less
retributive, the role of parole as a reformative measure has to be
acknowledged.

6.3.3 Furlough

Furlough is another reformatory tool that is often confused with


parole. Undoubtedly, parole and furlough are reformative tools of the penal
system, but the two are different. Furlough is a matter of right while parole
is not, Furlough must be granted to the prisoner periodically irrespective of
any particular reason. since the object behind this tool is merely to enable
him to retain family and social ties and avoid negative effects of a
continuous prison life. The period of furlough is treated as remission of
sentence. Parole, on the other hand, is not a matter of right and can be
denied to a prisoner even if he makes out sufficient case for release on
parole, where the competent authority is satisfied, of course on valid
grounds, that release of the prisoner in question on parole would be against
the interest of society at large or the prison administration. The subtle
distinction between the two has been explained by the courts from time to
time.

A parole can be defined as conditional release of the prisoner i.e. an


early release of a prisoner, conditional on good behaviour and regular
reporting to the authorities for a set period of time. It can also be defined as

341
a form of conditional pardon by which the convict is released before the
expiration of his term. Thus, the parole is granted for good behaviour on the
condition that parolee regularly reports to a supervising officer for a
specified period. Under the Guidelines, such a release of the prisoner is
temporarily on some basic grounds, It is to be treated as suspension of the
sentence for time being, keeping the quantum of sentence intact. Release on
parole is designed to afford some relief to the prisoners in certain specified
exigencies, as described above.

Furlough, on the other hand, is a brief release from the prison. It is


conditional and is given in case of long term imprisonment. The period of
sentence spent on furlough by the prisoner need not be undergone by him as
is done in the case of parole. Furlough is granted as a good conduct
remission. A convict literally speaking must remain in jail for the period of
sentence or for rest of his life in case he is a life convict. It is in this context
that his release from jail for a short period has to be considered as an
opportunity afforded to him not only to solve his personal and family
problems but also to maintain his links with society. Convicts too must
breathe fresh air for at least some time provided they maintain good
conduct consistently during incarceration and show a tendency to reform
themselves and become good citizens. Thus, redemption and rehabilitation
of such prisoners for good of societies must receive due consideration while
they are undergoing sentence of imprisonment. Both parole and furlough
are conditional release. Parole can be granted in case of short term
imprisonment whereas in furlough it is granted in case of long term
imprisonment.6

In Delhi, grant or refusal to grant furlough also is governed by the


Delhi Parole/Furlough Guidelines, 2010, notified on 17 February 2010. As

6 Dinesh Kumar v. Govt of NCT of Delhi, WP(C) 1229 of 2012, decided on 01 May 2012 by
the Bench of Mr. Justice A K Sikri, CJ and Mr. Justice Rajiv Sahai Endlaw of the Delhi Court.

342
contemplated by clause 24 of the Guidelines. a prisoner who is sentenced to
5 years or more or rigorous imprisonment and has undergone 3 years of
imprisonment excluding remission can be released on furlough. Vide clause
25 of the Guidelines, a prisoner, would be entitled to 7 weeks of furlough in
a year with the first spell consisting of 3 weeks and the subsequent spells
consisting of 2 weeks each.

Clause 26 of the Guidelines enlists the eligibility criteria for release


on furlough. As per the said provision, a person is entitled to be released on
furlough where:

 The applicant prisoner earned three Annual Good Conduct


Remissions with good conduct in the prison and he continues to
maintain good conduct;

 The applicant prisoner is not a habitual offender;

 The applicant prisoner is a citizen of India;

 The applicant prisoner has not been convicted of robbery,


dacoity, arson, kidnapping. abduction, rape and extortion or any
offence against the State such as sedition;

 The release of the applicant prisoner is not considered dangerous


or deleterious to the interest of national security or there exists no
reasonable ground to believe that the convict is involved in any
pending investigation in a case involving serious crime; and the
applicant prisoner is not such a person whose presence is
considered highly dangerous or prejudicial to the public peace
and tranquility by the District Magistrate by his home district.

The sanctioning authority for furlough is the Director General,


Prisons and the furlough applications are to be taken up on a fast-track basis
by the Superintendent of Jail (in co-ordination with the Department of
Home) within a period of 2 weeks. It is open to the competent authority to
impose suitable conditions while granting furlough in exceptional cases.

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6.3.4 Suspension Commutation and Remission

Two contrary views have always prevailed on the issue of purpose of


criminal justice and punishment. The punishment, if taken to be remedial
and for the benefit of the convict, remission should be granted, but if
sentence is taken purely punitive in public interest to vindicate the authority
of law and to deter others, it should not he granted.

Dias, in his book Jurisprudence7 observed thus:

The easing of laws and penalties on anti-social conduct may


conceivably result in less freedom and safety for the law-abiding. As Dietze
puts it: Just as the despotio variant of democracy all too often has
jeopardized human rights, its permissive variant threatens these rights by
exposing citizens to the crimes of their fellowmen The more law-abiding
people lose confidence in the law and those in authority to protect them, the
more will they be driven to the alternative of taking matters into their own
hands, the perils of which unthinkable and are nearer than some liberty-
minded philanthropists seem inclined to allow …

In Salmond on Jurisprudence,8 the author dealt with the purpose of


criminal justice and punishment as under:

Deterrence acts on the motives of the offender, actual or potential;


disablement consists primarily in physical restraint. Reformation, by
contrast, seeks to bring about a change in the offenders character itself so as
to reclaim him as a useful member of society. … The reformative element
must not be overlooked but it must not be allowed to assume undue
prominence. How much prominence it may be allowed, is a question of
time, place and circumstance.

7 Michael Dias, Reginald Walter, Jurisprudence, Buttersworth, 1985.


8 P J Fitzgerald, Salmond on Jurisprudence, Sweet and Maxwell, London, 12th Edition, 1968.

344
Punishment enables the convict to expiate his crime and assists in his
rehabilitation. The concept of remission policy manifests a process of
reshaping a person who, under certain circumstances, had indulged in
criminal activity and is now required to be rehabilitated. Objectives of the
punishment, as now recognized are wholly or at least predominantly
reformative and preventive. The basic principle of punishment that ‘guilty
must pay for his crime’ should not he stretched to the extent that
punishment becomes vicious. The matter is required to he examined
keeping in view the modern reformative concept of punishment. The
sentence softening schemes have to be viewed from a more humane and
social science oriented angle. Punishment should not be regarded as the end
hut as only the means to an end. The object of punishment must not be to
wreak vengeance but to reform and rehabilitate the criminal. The
circumstances in which the offence was committed and the state of mind of
the convict when the offence was committed are very significant factors, to
be taken note of while deciding the punishment.

Section 432, Criminal Procedure Code, 1973, empowers the


competent authority to suspend or remit sentences in whole or in part of any
person sentenced to punishment for an offence, at any time, without
conditions or upon any conditions that the person sentenced accepts.
Whenever an application is made to the competent authority for the
suspension or remission of a sentence, the authority may require the Court
before or by which the conviction was held or confirmed, to state its
opinion as to whether the application should be granted or refused, together
with reasons for such opinion and also to forward with the statement of
such opinion a certified copy of the record of the trial or of such record
thereof as exists, If any condition on which a sentence has been suspended
or remitted is in the opinion of the competent authority, not fulfilled, the
authority may cancel the suspension or remission, and thereupon the person

345
in whose favour the sentence had been suspended or remitted may, if at
large, be arrested by any police officer, without warrant and remanded to
undergo the unexpired portion of the sentence.

Section 433-A, Criminal Procedure Code, 1973, imposes restriction


on powers of remission or commutation where a sentence of imprisonment
for life is imposed on conviction of a person for an offence for which death
is one of the punishment provided by law or where a sentence of death
imposed on a person has been commuted under section 433 into one of
imprisonment for life, such person shall not be released from prison unless
he has served at least fourteen years of imprisonment. While considering
the premature release of a life convict, the authorities are required to
consider his case mainly taking into consideration the questions as to
whether the offence was an individual act of crime with no affect on the
society at large, as to whether there was any possibility of a future
recurrence where the convict commits a crime; as to whether the convict
had lost his potential to commit crime: as to whether any fruitful purpose
would be achieved by confining the convict any further; as to whether the
socio-economic condition of the convicts family call for such a premature
release and other similar facets.

6.3.5 Pardon

The term ‘pardon’ has been defined as an act of mercy by which the
offender is absolved from the penalty which was imposed on him. The grant
of pardon may be absolute or conditional. Under conditional pardon, the
criminal is left off with certain conditions, the breach of which will result
into revival of his sentence and he shall be subjected to the unexhausted
portion of the sentence Pardon is an act of grace proceeding from the power
entrusted with the execution of law, which exempts the individual on whom
it is bestowed from the punishment that law would inflict for a crime he has
committed. Every civilised society recognises and has to be provided with

346
the pardoning power, which shall be exercised as an act of grace and
humanity in appropriate cases. This power has been exercised in most of the
States from time immemorial, and has always been regarded as a necessary
attribute of sovereignty. It is also an act of justice, supported by a wise
public policy. It cannot, however, be treated as a right or a privilege. It is as
much an official duty as any other act. It is vested in the authority not for
the benefit of the convict only, but for the welfare of the people, who may
properly insist upon the performance of that duty if a pardon or parole is to
be granted.

Pardon as a mode of mitigating the sentence of the criminal has


always been a controversial issue since long. Proponents of power to
pardon in the penal system argue that it substantially helps in saving an
innocent person from being punished due to miscarriage of justice or
doubtful conviction. As observed by Chief Justice Taft in James Shewan
and Sons v. United States,9 the executive clemency exists to afford relief
from undue harshness or evident mistake in the operation or enforcement of
the criminal law’. As J L Gillin observed, if the pardons are administered
with care and solely to correct injustices, they certainly do not diminish
respect for law and rather infuse confidence in the machinery of justice.
Besides, the hope of getting pardoned in itself serves as an incentive for the
convict to behave properly in the prison and thus helps considerably in
solving the problem of prison discipline. Historically, pardon was
extensively used also as a method of reducing overcrowding in prisons
during war, political upheaval and revolt.

Opponents of the power of pardon as an effective measure of


mitigating sentence argue that the power to pardon is often misused by the
executive. Possibility that the convict may secure his release from prison by
exerting undue influence on the executive authority can never be ruled out.

9 [1924] 69 Law 527.

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Another evil that follows as a result of pardon as a measure of undoing the
guilt of the convict is that it has an adverse effect on prisoners because they
invariably try to secure pardon rather than reforming themselves. Despite
all its shortcomings, the great moral advantage of pardoning power of the
executive lies in the fact that it is always referable to grant liberty to a guilty
offender rather than sentencing an innocent person.

In India, the provisions contained in Articles 72 and 161 of the


Constitution provide that the President of India and the Governors of the
States respectively, are empowered to grant pardon, reprieve, or commute
the sentence of any convict. Similar provisions exist in the constitutional
documents of many other countries which empower the executive head of
the State to grant pardon or alter the sentence of the convict.

In the case of Kuljit Singh alias Ranga v. U. Governor of Delhi,10 the


Supreme Court of India was called upon to decide the nature and ambit of
the pardoning power of the President of India under Article 72 of the
Constitution. In that case, the death sentence awarded to one of the
appellants was confirmed by the Supreme Court. where after his mercy
petition also was rejected by the President. Thereafter, the appellant filed a
writ petition in the Supreme Court of India challenging the discretion of the
President of India to grant pardon on the ground that no reasons were given
for the rejection of his mercy petition. The Supreme Court dismissed the
observing thus:

….that the administration of justice by the courts is not necessarily


or certainly considerate of circumstances which may properly mitigate
guilt. But the question as to whether the case is appropriate for the exercise
of the power conferred by Art 72 depends upon the facts and circumstance
of each particular case... After all, the power conferred by Art. 72 can he
used only for the purpose of reducing the sentence, not for enhancing it. We
10 AIR 1982 SC 774.

348
need not, however, go into that question elaborately because in so far as this
case is concerned, we are quite clear that not even the most liberal use of
his mercy jurisdiction could have persuade the President to interfere with
the sentence of death imposed upon the petitioner…

The Supreme Court was once again called upon to decide upon the
President’s power to grant pardon, reprieve or remission or to suspend,
remit or commute the sentence of death imposed on the condemned
prisoner, under Article 72 of the Constitution in the case of Kehar Singh v.
Union of India.11 The apex court observed that the power to pardon is a part
of the constitutional scheme, and it should be so treated in the Indian
Republic and has been reposed by the people through the Constitution in
the Head of the State. and enjoys high status; that the power to pardon rests
on the advice tendered by the Executive to the President, who subject to the
provisions of Article 74(1) must act in accordance with such advice; that the
President can scrutinize evidence on record and may come to a different
conclusion from that of the Court regarding the guilt or sentence of the
accused.

6.3.6 Open Prisons

Modern penologists believe that criminals respond more favourably


to humane treatment and constructive rehabilitative process rather than to
the purposeless infliction of pain in the name of punishment. Across the
world, significant changes have been or are in the process of being
introduced in penology aimed at meaningful treatment of criminals. Open
prisons, also named as open air camps, open jails or parole-camps (being a
sort of expanded form of parole), are another such significant tool of
criminal reformation, Open air-institutions are essentially a 21st century
device for rehabilitating offenders to normal life in the society through an
intensive after-care programme.
11 AIR 1989 SC 653.

349
The United Nations Congress on Prevention of Crime and Treatment
of Offenders held in Geneva in 1955 defined an ‘ open prison’ thus:

An open institution is characterized by the absence of material and


physical precautions against escape such as walls, locks, bars and
armed-guards etc., and by a system based on self-discipline and innate
sense of responsibility towards the group in which he lives.

Thus open prisons are minimum security tools for jail inmates,
aimed at rehabilitating them in the society after final release. The open
prisons provide work to the inmates in forests, agricultural farms and
construction sites instead of allowing them to be idle inside the prison cells.
These prisons play an important role in the scheme of reformation of a
prisoner which has to be one of the critirea of reformative management.
They represent one of the most successful applications of the principle of
individualization of penalties with a view to social readjustment because
introduction of wages system, release on parole, educational, moral and
vocational training of prisoners are some of the characteristic features of the
open prison system, Besides, open prisons are far less costly than the closed
prison establishments and the scheme has a further advantage of
government being able to employ in work, for the benefit of the public at
large, the jail population which would have otherwise remained
unproductive. The monetary returns are positive, and once put into
operation, the open jails acquire financial self-sufficiency.

During the 19th century open prisons existed in America in the name
of prison farms. The convicts, who were nearing the end of their sentences,
were generally transferred from conventional prisons to the open farms in
forests as labourers. These open prisons however, differed from modem
open prisons at least in one aspect that these were literally ‘slave-camps’.
However, the experience with these prison 1mm labourers was quite
encouraging. It was found that majority of these prisoners could be trusted

350
if engaged in corrective work outside the guarded enclosures under
unarmed supervisors. Although the system involved a risk of prisoners
escaping from the worksites, the number of actual escapes was so negligible
that this mode of imprisonment was adopted as an integral part of
correctional programme in the United States. The greatest contribution of
open farms to the prison community was to develop self-reliance and self-
confidence among the prison inmates by resorting to minimum security
measures.

In the closing years of the 19th century, a semi-open prison


institution called the Witzwill establishment was set up in Switzerland.
Open-prisons in modern sense were, however, established, in UK in 1930’s
and in US around 1940’s. Sir Alexender Parelson, the member secretary of
the Prison Commission of UK from 1922 to 1927 made significant
contribution to the development of open prison in England. The philosophy
underlying such minimum security institutions is based on the basic
assumptions that a person cannot be trained for freedom unless conditions
of his captivity and restraints are considerably relaxed, that the gap between
the institutional life and free life should be minimized so as to ensure the
return of inmate as a law abiding member of society; that the dictum ‘trust
begets trust’ holds good in case of prisoners as well, therefore, if the
prisoners are allowed certain degree of freedom and liberty, they would
respond favourably and would not betray the confidence reposed in them.

Inspired by the success of open prisons in UK and US, many


countries across the world, including India adopted the said system. In
Netherlands, open prisons were established during 1957-1962 and the same
were meant to serve as pre-release treatment centers operating between the
period of prisoner’s detention in a closed institution and his return of free
life. The inmates of the open prisons were allowed to mingle freely with
members of society while at work as also during leisure. The number of

351
inmates in each of these institutions was limited to a maximum of twenty-
five as a part of individualized treatment so that their individual progress
could be kept under watch by the competent supervisors. Entitlement of
prisoners for admission to the open prisons was and is on the basis of
recommendations made by the Central Selection Committee which meets
on monthly basis. The stay of a prisoner in the open prison cannot exceed
five months. The open prisons in Netherlands are located near provincial
towns so that the prisoners have adequate chances of being engaged as
wage earners by the private entrepreneurs. 30% of the total wage earnings
of an inmate is deposited in his name, to be paid to him at the time of his
final release whereas 10% is paid to him for his pocket expense. The
inmates are, however, expected to spend their leisure time within the
institutional framework with opportunities to visit the places of
entertainment and recreation. They can meet their friends and relatives
without any supervision and are also free to put on clothes of their choice.12

France also has the system of open prisons, where the inmates go for
work as free workers without any supervision and return to the prison every
evening or during non-working days. The scope for expansion of open
prisons in France is rather limited because even the traditional prison
system of France allows prisoners to work outside the institution with
private employers under proper supervision.

In India, the first open prison was started in the year 1905 in
Bombay Presidency, for which the inmates were selected from the special
class of prisoners of Thane Central Jail, Bombay. However, this open prison
was closed in 1910. Thereafter, in the year 1953, Uttar Pradesh established
the first open prison aimed at the construction of a dam over Chandraprabha
river near Varanasi. After completion of the dam construction, the prisoners

12 Professor NV Paranjape, Criminology and Penology, Central Law Publications, Allahabad, 11


the Edition, 2002.

352
were shifted to a nearby place of constructing the dam over Karamnasa
river. The third open prison in Uttar Pradesh was made at Shahbad for
digging a canal. Encouraged by the success of these experiments, a
permanent open prison was started at Mirzapur on 15 March 1956 with a
view to employ prisoners on the work of quarrying stones for Uttar Pradesh
government cement factory at Churk, Mirzapur. Prisoners selected for the
open jail from different jails of the state are transferred to District Jail,
Bareilly, from where they are shifted to the open prison.

Success of open prisons in Uttar Pradesh led to establishment of


open prisons in many other states. In 1996, there were 24 open prisons
(excluding semi-open camps) in 12 states across India. Such open prisons,
usually located on the outskirts of a town fall within five kilometers of the
nearest town, except in Kerala and Uttar Pradesh where the same are
situated 15 to 35 kilometres from the nearest towns. The capacity of the
Indian open prisons varies from less than 100 to 1000 prisoners. Some of
these prisons provide work only in agriculture, some in industries, and
some both in agriculture and industries.

In Delhi, for the first time in June, 2013, a proper semi-open jail was
opened at the Tihar Prisons campus, and 20 inmates, mostly murder
convicts were selected for it. Each of the selected inmates had to go through
a tough selection process, the test including good behaviour and completion
of more than 12 years of their jail term and their furnishing surety of Rs.
10,000/- each that they won’t try to escape. Presently, the said open jail in
Delhi covers only male inmates. The semi-open jail, converted from the
staff quarters can house up to 100 inmates. Dressed in navy blue pants and
light blue shirts, such inmates can go to work every day at around 06:00 am
and come back to their rooms by 07:00 pm. The said convicts will stay
within the jail premises but will be released out of their jails in the morning

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so that they can work during the day in an open environment with PWD,
horticulture department or the Tihar Haat (where products manufactured in
Tihar jail are sold).13

Researches carried out in India as well as abroad reflect that more


prisoners in open prisons indicate a high level of adjustment to personal
problems as well as to co-inmates and the staff than those in closed prisons,
which is the result of better facilities and free environment; that the inmates
in open prisons exhibit more positive self-esteem and positive attitude
towards co-inmates than those in closed prisons; that anxiety, insecurity and
guilt feelings are higher amongst the inmates of closed jails than in those of
open jails; that attitude towards authorities is more cooperative amongst
prisoners in open camps than those in closed jails; that neuroticism and
extroversion among convicts are found to be much less in open prisons than
in closed prisons, and that inmates of open prisons show more positive
attitude towards society than those in closed prisons. These findings
establish the positive role of open prisons in the reformation and
rehabilitation of criminals. There is a need to establish open prisons in all
those states where they do not exist at present. At the same time, there is
also a need to frame common rules of eligibility for admission and the
facilities for inmates of open prisons in all states across the country. Then,
there is also a need to ensure ruling out biases, pressures and corruption in
preparing lists of prisoners to be sent to open prisons by superintendents.
Courts also need to be empowered explicitly by law to send certain
categories of convicts to the open prisons.

6.3.7 Self Governance by Inmates

In order to ensure discipline and obedience among prisoners,


experiments on self- government in prisons have been carried out in few
systems, like San Pedro in Bolivia and few other states in the US. The
13 News report, Capital gets its first semi open jail, The Times of India, 12 June 2013.

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underlying purpose of the exercise is to ensure complete or at least partial
freedom for prison population from external control, which ultimately
serves also as an effective tool of reformation. Under the system of self-
government in prisons, the inmates elect some of their fellow prisoners as
their representatives and the entire prison management is run by that elected
body of prisoners, who exercise complete or at least partial control over
mess and are expected to take care of the interests and welfare of their
fellow prisoners.The self-government of prisoners in Osborn USA jails
proved to be very successful and even reduced the number of jail escapes.
The inmates generally behaved well and never tried to misuse the liberty
extended to them.

In India, however, the system of self-government in prisons has not


been much successful, because perhaps the lack of overall moral discipline
among the criminals who are generally illiterate persons from the lower
strata of society. Therefore, instead of introducing complete self-
government system, India has experimented with a system of partial self-
government in its prisons. Under this partial system, the prisoners who have
good conduct record in the prison are attached to work with jail officials
and thus they act as a connection between the prison authorities and their
fellow inmates. Such privileged prisoners are granted certain facilities and
are even allowed to move out of the prison occasionally during the course
of their work. This proves advantageous multifariously. Firstly, it develops
a sense of duty, honesty, trust and loyalty among the prison inmates and
secondly, it leads to a psychological effect on other prisoners by conveying
that a disciplined behavior in prison can get them also certain facilities
including reduction in term, of their sentence like their fellow prisoners.

6.3.8 Work Release

Work release is considered to be a very effective reformation tool in


modern criminal justice. In this method, the prisoner is allowed to work for

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pay in the society for part time basis. This gives him an opportunity to mix
up with the society in a normal manner without any limitations. The control
of the prison authorities in, however not completely taken away since he
has to work within the permitted parameters and during non-working hours,
he has to return the concerned correctional institution. The correctional
authorities collect his earnings and which are paid to the prisoner on the
completion of sentence. However it differs from parole as inmates
continues live in and subject to control of jail authorities except the working
hour. This helps the prisoner to adjust in the situation at the work place after
the release.

6.3.9 Vipassana

‘Vipassana’ which means ‘insight’ or ‘to see things as they really


are’ in Pali, is the essence of the Buddha’s teachings. It is a straightforward
way to achieve peace of mind and to live a happy, useful life. It equips one
with the inner strength to face the challenges of life in a calm, balanced
manner, and gain mastery over one’s mind. It is a practical experiential
way of understanding the mind-matter phenomenon and purifying one’s
mind of underlying negativities. Vipassana meditation, as taught by S.N.
Goenka is being used as a prison reform measure with the ultimate
objective of reducing recidivism, and reintegration of prisoners back into
the society once they are released. Vipassana was rediscovered by Gautama,
the Buddha, about 2500 years ago in India. Although this technique
became very popular and was practiced by many at the time of the Buddha,
its purity got lost in India after the Buddha’s death. It was only
in Myanmar (formerly called Burma) that Vipassana meditation was
preserved in its true form and was passed on traditionally from teacher to
student over the years. Sayagyi U Ba Khin was one of the last teachers from
whom S.N. Goenka learnt this technique and brought it back
to India. Today there are more than 90 Vipassana meditation centers all
over the world.

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The first Vipassana course in a prison took place in Jaipur, India, in
1975. However, it was only after almost 20 years that Vipassana
established itself as a tool for social and prison reform in the 1990s. It was
Kiran Bedi, the then Inspector General of Prisons of Tihar Jail, the highest
security prison in the country and the largest in Asia, who introduced
Vipassana as one of the reform techniques of Tihar jail. The tremendous
impact and change that it brought about in the prisoners was the turning
point and very soon more and more prisons began organizing these
meditation courses for the prisoners. Today, the meditation practice is not
just confined to India but its non-sectarian and universal application is
being recognized in prison facilities in many other parts of the world,
especially North America, where Vipassana has had the same positive
effects on the prison inmates.

It was with this purpose of dealing with the emotional and


psychological problems of prison inmates that Dr. Kiran Bedi, the then
Inspector General of Tihar Jail introduced Vipassana in Prisons. Her strong
belief in ‘offender rehabilitation’, rather than punishment, spearheaded
many fundamental and systemic changes in Tihar. Improving living
conditions of the inmates, providing better facilities, dealing with
corruption, ensuring improved medical services were all a part of the
reform measures. To ensure that the inmates used their time in the prison
usefully and productively, various educational and vocational programs
became an integral part of the prison, which helped in building community
as well as developing their personality in a positive manner.

6.3.10 After Care Programmes

There is also a need to work on after-care scientific programming,


aimed at rehabilitation of the prisoners after their release. During last about
2-3 months of the awarded term of sentence, the prisoner should be placed
under an intensive after-care system, which systematically designed
individualized process will offer him adequate opportunities to overcome

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his inferiority complex and guilt. In India, certain social institutions such as
seva sadans, nari niketans and Reformation Homes are at work in different
places, involved in the task of after- care and rehabilitation of criminals, but
the functioning of these is generalized and not scientifically designed. Open
prisons also can serve a similar purpose. It is always preferable to place
even the released prisoner under the supervision and guidance of a specially
trained officer for rehabilitation in the free community. In this regard, the
Welfare Officers appointed in prisons can play an important role in
providing adequate counseling, legal help and financial assistance to the
prisoners at the time of their release so that they are properly rehabilitated
in society

6.4 ATTITUDE OF PUBLIC TOWARDS PRISONERS

Public attitude and perception towards the prison institutions and


their management also needs to be Fine tuned through an intensive
publicity programme using the media. There is a need to create a right
climate in society to accept the released prisoners with sympathy and
benevolence without any hatred or distrust for them. The media should be
allowed to visit and cover the prison institutions frequently so that their
misunderstanding about prison administration may be cleared. Greater
participation of public in prison administration shall certainly create an
atmosphere conducive to reformation of the prisoners.In order to inculcate
discipline in the prisoners, a general policy to reduce the sentence of the
prisoner showing good behavior will operate as incentive for them to
maintain discipline and will also offer them an early opportunity to join
back the community and at the same time relieve the burden of the State.

6.5 REFORMATIVE APPROCH TOWARDS FEMALE PRISONERS

During their term of sentence, female prisoners should be treated


with more generosity and specifically speaking, they should be allowed to

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meet their children as frequently as possible, as the same will keep them
mentally fit and responsive to the treatment methods. The correctional and
educational programme required in case of female prisoners must be liberal
and not as rigorous as in case of male prisoners, because females need
lesser coercive control and custody owing to their feminine temperament.
Particularly, the women who fall a prey to prostitution offences should be
treated with sympathy and their illegitimate children should be assured
normal life in the society.

6.6 GENERAL ISSUES RELATED TO PRISON REFORMS

Efforts for rehabilitation of a criminal, in order to be effective, must


begin from the moment he steps inside the prison. A comprehensive and
individualized reformation and rehabilitation programme is, therefore,
essential to cater to the needs of different categories of criminals. The
prison-life should be so regulated that the prisoner is able to overcome all
his psychological strains and adapt himself as a law abiding citizen after his
release from jail. It must be remembered that the role of prisons has
radically changed over the years and they are no longer regarded as mere
custodial institutions, instead prisons have now acquired a new dimension
as treatment and training centers for those who fall foul with law. The
emphasis has thus shifted from custody to training and reformation of
criminals and the policy of segregation now stand substituted by
community participation of prisoners. Protection of society can be better
ensured if the offenders are corrected and reformed within the society itself.
To talk about treatment and training in prisons is not rhetoric, but real.
There is need to improve the prison system by introducing new techniques
of management and by apprising the prison staff with their constitutional
obligations towards prisoners. This would surely end the gloom cast on our
prison system and create new awakening among the prison community. It

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cannot be ignored that majority of criminals sentenced to imprisonment
want to return the society as law abiding citizens.

6.6.1 (A) Mulaqat system

The system of mulaqat (family meetings) of prisoners in jail needs to


be taken seriously as it is an extremely effective but unexploited tool of
reformation. although the prisoners are allowed to meet their near relatives
at fixed intervals, the mulaqat is for very short time and in very
uncomfortable atmosphere, with no privacy during such meetings. The
meetings under the supervision of prison guards are really embarrassing for
prisoner as well as the visitor and many emotions on both sides remain
unexpressed for want of privacy. In Tihar Jail, the mulaqat system earlier
used to be that the visitor would stand in front of the prisoner, the two being
separated by a double wall with grill windows, so that they could see and
talk to each other across the distance but could not touch each other, so that
there is no transfer of any objectionable material by the visitor to the
prisoner. But it was found that oven across the double wall, the visitor and
the prisoner could exchange objectionable material through the grilled
window, using paper missiles with the help of rubber band or even chewed
gum. In order to curb this menace, Tihar Jails improvised the mulaqat
section in the jails by converting the grilled windows into fixed toughened
glass windows in the double wall that separates the prisoner from the visitor
during muluqat so that the chances of transfer of objectionable material
could be completely ruled out. For auditory interaction between the prisoner
and the visitor, now there are microphones and speakers on both sides. But
with this step of the jail authorities, mulaqat system has lost its utility
substantially. For, now there are enormous complaints that the sound system
invariably fails to transmit clearly audible voice due to poor maintenance
and lack of sound proofing, besides the toughened glass of the window
being always smudged and unclean, there is no visibility as well. Thence,

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the conversion of the system using advancement of technology in order to
prevent transfer of objectionable material into the jail has brought immense
damage to the highly useful reformatory tool of mulaqat. It is submitted that
for failure on the part of the guards on duty to ensure strict vigil and prevent
transfer of objectionable material into the jail, right of the prisoner to
muluqat, which is also an effective scientific tool of reformation cannot be
taken away. The right of the prisoners to communicate and meet friends,
relatives and legal advisers should not be restricted beyond a particular
limit. For, frequent jail visits by family members go a long way in
acceptance of the prisoner by his family and small friendly group after his
release from jail finally, as the visit continue the personal relationship
during the term of imprisonment which brings about a psychological
communication between him arid other members of the family.

6.6.1 (B) Celebration of festivals and other ceremonies

It is opined by the reformers that the system of limiting the scope of


festivals and other ceremonial occasions merely to delicious dishes for
prisoners needed to be changed by bringing in celebrations through
rejoicings and other meaningful programmes so that the prisoners could at
least momentarily forget that they are leading a fettered fife. Jail authorities
in some places claim that now a Lot is being in that direction by organizing
art and music programmes, besides spoils and games activities inside the
prisons. But the same is not showing effective results in the mindset of
prisoners, so something more is called for.

6.6.1 (C ) Communication by post or mail

The existing rules relating to the restrictions and scrutiny of postal


mail of inmates should be liberalized. This shall infuse trust and confidence
among inmates for the prison officials, Most of the times, the only excuse
presented by the prison authorities in support of such restrictions is that the

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same is done in the interest of security of the prison. But it is submitted that
in the name of prison security, maintenance whereof is the bounden duty of
the authorities, right of the prisoners cannot be allowed to be curtailed.
Even postal communication helps in ensuring life in the familial bonds of
the prisoner and thereby helps in reformation and rehabilitation of the
prisoner.

6.6.1 (D) Education and skill training

The continuing education of prisoners is yet another tool, that keeps


them occupied and also would help their rehabilitation after release from
jail. There should be greater emphasis on vocational training of inmates,
which will provide them honourable means to earn their livelihood after
release from jail. The facilities of lessons through correspondence courses
should be extended liberally to the inmates, who are desirous of taking up
advanced studies. Those prisoners, who are not inclined towards formal
education, should be provided training in vocations like tailoring, bakery,
carpet weaving, carpentry, and embroidery etc., which activities consume
extensive occupation of body and mind. The prisoners who are well
educated need not be subjected to rigorous manual work in jail and instead
they should be deployed in some productive work requiring use of mental
faculties.

The training of jail inmates in the vocational trades, have resulted in


the production of articles which have the market value. The details of the
gross value of such produce in different State. Delhi had reported the
highest gross value of sale proceeds of 2,885.0 lakhs earned by the jail
inmates followed by Bihar (1,708.6 lakhs), Uttar Pradesh (1,456.1 lakhs),
Kerala (1,255.3 lakhs), Tamil Nadu (1,156.0 lakhs), Maharashtra (1,143.1
lakhs), Gujarat (818.3 lakhs), Andhra Pradesh (577.0 lakhs), Jharkhand
(296.6 lakhs), Chhattisgarh (269.5 lakhs) and Punjab (266.3 lakhs). The
value of goods produced per inmate was highest in Delhi (`23,817.4)

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followed by Chandigarh (21,812.0), Kerala (18,069.7), Tamil Nadu
(8,760.9) and Gujarat (7,063.4) during the year 2012.14

There is a proven correlation between illiteracy, innumeracy and


offending. Most prisoners have access to educational courses and training
while in prison. The objective is to enable them to gain the skills and
qualifications that could help them to find the employment on release.
Many Research shows that the prisoners who gain employment after release
are far less likely to re-offend.

In some of the Jails in India, like Tihar Jail, those prisoners who are
disciplined and react favourably to prison staff are joined in to participate in
the prison administration, which is taken as a badge of honour. But in this
system, there is often lack of bonafides, in the sense that the prison officials
in a calculated manner cultivate some of the prisoners by joining them in
the prison administration, but with the larger goal of exploiting them as
spies and henchmen.

6.6.1 (E) Spiritual trainings

Some penologists have advocated the need for spiritual training of


the prisoners, which is certainly a positive step towards reformation. It is
strongly believed that the practice of yoga and meditation can enable the
prisoners to control their mind, which is prone to aggression bouts owing to
their basic temperament and prison life. This is indeed a new approach to
the problematic of crime and criminal in the Indian setting. Regular practice
of yoga not only keeps the human body healthy and strong, but also bends
the negative temperament to positive one, thereby taking the criminal away
from criminogenic tendencies. Thus, by the practice of yoga in prisons,
crimes can be considerably controlled and hardened criminals can be
reformed. The experiment carried out in the many Jails across country

14 Prison Statistics India-2012 published by national crime record bureau

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through introduction of yoga and meditation, have brought noticeable
change in the living and thinking of the prisoners .Many jails across India
are holding meditation and spiritual exercises regularly, The philosophy
underlying this kind of prison reform programme is that a person often
commits a crime because of anger, hatred or a feeling of rivalry or revenge
and in order to help such offenders, it is essential to control their emotions,
which are aggrandized by pessimistic manifestations of mind like tension,
failure or anxiety. A majority of prisoners repent for their crime and they
sincerely want to mend their ways but often lack necessary inspiration or
the sprit. It is, therefore, essential to enlighten such people by inculcating in
them values of morality and ethics so that they get the inner strength of
distinguish between good and bad. This improvised Indian approach to
prison reforms will surely will bring about a positive change in the attitude
of prisoners and help in their rehabilitation.

6.7 PRISON CULTURE

The correctional system in the world is experiencing a


metamorphosis. Consequently, now is a critical time for the development of
robust theories of the prison culture. Prison populations continue to soar at
alarming rates, and laws impacting the prison population continue to
change. Determinate sentencing laws, including Three-Strikes Laws and
habitual offender statutes, have helped give the prison population a new
dynamic, as the number of elderly offenders continues to grow. Other
offender groups who are being represented in increasing the proportions are
those inmates with terminal diseases, such as AIDS, and female offenders.
It is entirely much possible that this crossroad in the corrections cannot be
fully understood in the context of traditional models of the prison culture.
Even if theoretical models take on a new composition, elements of the
classical models will inevitably remain, as they are still relevant in gaining
an understanding of the prison culture.

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Socialization Process in prison

To ensure good discipline and administration, an initial classification


must be made to separate male from females, the young from the adults,
convicted from the unconvinced prisoners, civil from criminal prisoners and
from casual from habitual prisoners. The main object of prison labour is
prevention of crime and reformation of the offenders. And the other main
object was to engage them so as to prevent mental damage and to enable
them to contribute to the cost of their maintenance. The under trail prisoners
constitute a majority of population in prison than convicted prisoners. The
under trial prisoners are presumed to be innocent and most of them are
discharged or acquitted after immeasurable physical and mental loss caused
to them by detention due to delay in investigation and trial.

Prisoners constitute important institutions which protects the society


from criminals. The obstacles in prison reforms are resource allocation, the
deterrent functions of punishment, the notion of rehabilitation, and internal
control. various judgments passed by Indian courts suggest that they are
sensitized to the need for doing justice to the people to whom justice had
been denied by a heartless society for generations. Although the several
judgments have recognized the rights of the prisoners, these have resulted
in few amendments to legislation. While judicial sensitivity and activism is
appreciable, it must be borne in mind that the country’s criminal justice
system still suffers from substantive and procedural deficiencies; once a
citizen is arrested, even if on a relatively minor charge, he or she could be
held in custody for years before his or her case comes up for trial. Those
who are affluent, are still being able to negotiate their way around the
numerous obstacles that lies on the road to justice. For an ordinary citizen,
an encounter with the laws is very much the stuff of nightmares. There is a
long course before Indian judiciary to be followed in order to achieve the
goal of the social justice (Krishna Iyer VR, 1984).

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Though the various rights have been granted to the prisoners, in
reality, they do not reach the prisoners. An outstanding example is the right
to speedy trial. A huge backlog of the cases impedes the delivery of the
justice and this is a violation of the rights by the court itself. Similarly, free
legal aid is an idealistic goal, but presently far from reality. Many of the
prisoners don’t know about the services and they are unable to utilize it.
Apart from that, we see how Tihar Jail has successfully carried out a
number of the welfare programs for the prisoners including the education,
recreation and free legal aids to help them during their stay in the prison.
Such schemes need to be replicated in other prisons of the country. The
other prisons in India should take Tihar Jail and Delhi Prisons Authority as
the model in order to work for a better and more efficient working.It is also
imperative that adequate fund allocation is provided by the Government,
and also to be generated from inside the prisons by emulating the Tihar
model, so that the stay and subsequent rehabilitation of the unfortunate
prisoners doesn’t get affected due to the lack of funds.
A review of the Management of Prisons in the State of Gujarat
brought out the deficiencies in the financial management and in providing
basic infrastructure in the prison. Equipment like Door Frame Metal
Detectors, Close Circuit Television Cameras were found to be either absent
or not working optimally. There were security lapses in terms of prisoners’
escapes, entry of prohibited articles inside prison and even excavation of
tunnel. Lack of planning was observed in optimal utilization of the
accommodation capacity in the prisons leading to overcrowding in some
prisons and underutilization in some other prisons. Utilization of newly
constructed prisons/hardcore cells was delayed due to lack of co-ordination
with government Departments. Health care facilities provided in the prisons
were inadequate. Acute shortage of security staff adversely affected security
of prisons. No State Advisory Board or the Prisons Development Board had
been constituted in the State for better administration and modernization of
prisons. Internal control system was found weak in the prisons.

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NCRB data and Reformation Report have illustrated that the prison
condition of our country and the process being used as per the references of
reformations in India. The central jail has given right to prisoners so that the
prisoners can enhance themselves and can participate in the reformative
process in the jail. As in the jail that we have seen prisoner's participation in
games and sports activities within the prisons took a big jump with the
organization of inter ward and the inter jail competitions twice a year for
the last over five years. In all the prisons, sports like volleyball, cricket,
basketball, kho-kho, kabbaddi, chess, carom etc. are organized during the
winter sports festivals, which are popularly known in the jail as "Tihar
Olympics". Inter jail cultural meets titled "Ethnic Tihar" are held during
spring season every year in which competitions in music, dance, sher-o-
shairi, quawali, painting, quiz etc. are organised for inmates. Eminent
personalities from the field of sports and culture are invited on these
occasions to encourage the prisoners to take part in the sports and the
cultural events, to foster their physical, mental and cultural development
and inculcate discipline. In tihar, there is a religious environment, so there;
all Religious and National festivals are celebrated by one and all inside the
prisons. On Republic Day and Independence Day National Flag is hoisted
in all the prisons. All the religious festivals like Holi, Diwali, Id, Guru Parv,
X-mas etc. are celebrated by one and all of the prisoners. On Rakshbandhan
Day sisters/ brothers are allowed to meet the inmates and tie Rakhie. Sweets
are prepared inside the prisons and sold to the visitors. This is a huge
occasion which helps the jail administration to convey to the prisoners that
they Care for them.
6.8 ROLE PLAYED BY HUMAN RIGHTS COMMISSION IN
PRISON REFORMS

The role of the Human Rights Commission in protecting and


safeguarding the human rights of the prisoners in custody or the inmates
ought to be analyzed. Under the present management and leadership, the

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Commission has played and has been playing a pivotal role in developing a
desired culture for the security and protection of human rights in the
country.

National Human Rights Commission has built up an edifice of


human rights accountability on the foundation of autonomy and
transparency. While concentrating on immediate redressals and remedy of
wrongs it has taken suo moto investigations and has established contacts
with Central and State Governments and Human Rights Organisation s in
India and abroad. It has also struck fruitful collaboration and co-operation
with non-Governmental Organizations both in India and abroad. This will
go a long way in redressing the atrocities faced by the prisoners in various
custodies.

The National Human Rights Commission has given priority to the


protection of Civil Liberties of an individual. It has also given review of
legislations repugnant to the principles of human rights and its role in
opposing TADA was commendable.

The National Human Rights Commission has also given priority to


the reforms in Civil and Police Administration to usher the human rights
culture, which will reduce or ultimately eliminate custodial violence and
rapes and finally National Human Rights Commission has set a base of
redressal of human rights grievances of scheduled castes and scheduled
tribes. The aforesaid priorities will help in creating awareness in the society
about the rights of the people in custody, particularly the women will be
made aware of their rights and they will also be trained to press for the
same. It will also sensitise the people against human right violators, train
officers, medias etc. as to how to respect human beings and make sure that
the human right violators are punished appropriate legal actions are taken
by drawing attention of the state authorities and the rights of the victims are
restored.

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The Commission also teaches people as to how to avoid exemplary
damages or simple damages. To set an example before the people, society,
Government, judiciary and police or other detaining authorities to eradicate
custodial violence i.e. torture, rape, death and other inhuman activities like
beating, harassing, abusing, teasing, assaulting of people in custody or
inmates the National Human Rights Commission has a significant role to
play.

The National Human Rights Commission, has come to the


conclusion that reforms in laws and treaties and even the changes made in
the structure or systems were not themselves sufficient to promote and
protect the safety and security of human rights. The nation requires
comprehensive programmes on social regenerations to deal with the social
wrongs. Appropriate programmes to reorient the citizens and to restrain the
police and the bureaucracy are the need of the hour.

Keeping the above in view, the National Human Rights Commission


has taken positive steps to review draconian legislations. In respect of
TADA, it addressed the members of parliament directly. It has initiated in
depth studies in Insurgency areas on the steps to be taken to safeguard
human rights, initiated Human Rights Literacy drives in schools and
colleges with the help of National Council of Education Research and
Trading (NCERT ) and University Grant Commission (UGC), listed on
media support to create human rights awareness and participate in and
organise seminars. With the establishment of the National Human Rights
Commission, now there is an independent organization which looks into all
complaints of violations and fixes the accountability

6.9 NATIONAL COMMISSION FOR WOMEN

Women have been relegated to a secondary status and have been


subject to various legal and social discriminations in Indian scenario. The

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framers of the Constitution recognized the need to remove such inequities,
and made special provisions to redress the same. The need was felt for a
structure to uphold the rights and implement the provisions of beneficial
legislations in an organized and institutionalized manner. The National
Commission for Women (NCW) is a statutorily constituted body under the
National Commission for Women Act.1990. The commission carries on
various functions such as to investigate and examine all matters relating to
the safeguards provided for women under the constitution and other laws.
mainly the Commission’s mandate can be divided under four heads – (a)
safeguard of rights of women granted by the constitution and laws, (b)
study problems faced by women in the current day and make
recommendations to eradicate these problems, (c) evaluating the status of
Indian women from time to time and (d) funding and fighting cases related
to women’s rights violations.

(a) Safeguard Rights of Women:

They expect the Commission to examine the safeguards for women


provided by the law and the Constitution. The Commission is to submit
reports about these safeguards and make recommendations about the
implementation of the same. The Commission is also expected to review
these safeguards periodically to identify and remedy any lacunae and
inadequacies. The Commission is also empowered to take up cases
involving the violation of the cases.

(b) Study of problems faced by women:

The Commission is to carry out studies involving the problems


arising out of discrimination against woman and provide remedies for these
problems. As per this part of the mandate, the Commission is also expected
to advise the government about the socio – economic development of
women based on these studies.

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(c) Evaluating status of Indian women

The Commission, according to various guidelines, has the


responsibilities of the evaluating the status of Indian women under the
Union Government and State Governments. It is to inspect and evaluate the
conditions of detention homes and other such facilities in which women
may be detained and deal with the appropriate authorities in order to
improve the condition of such places. These evaluations are to be submitted
to the Government through periodic reports and recommendations. Fighting
cases related to women’s rights violation. the mandate also empower the
Commission to take up cases related to discrimination against women,
women’s right violation and fund cases which involve the rights of a large
number of women. Provisions of the act empowers the Commission to take
suo moto notice of matters relating to women’s right deprivation, non –
implementation of laws enacted to protect women and non – compliance of
policies and guidelines for mitigating hardships of women, in such matters
the Commission is empowered to approach the appropriate authorities and
seek remedies.

Complaint And Counseling Functions:

The “core” unit of the Commission is considered to be the Complaint


and Counseling Cell and it processes the complaints received oral, written
or suo moto under Section 10 of the NCW Act. The complaints received
relate to domestic violence, harassment, dowry, torture, desertion, bigamy,
rape and refusal to register FIR, cruelty by husband, gender discrimination
and sexual harassment at work place.

This cell adopts a three-point method to deal with the mentioned


problems

 Investigations by the police are expedited and monitored.

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 Family disputes are resolved or compromised through counseling.

 In case of serious crimes, the Commission constitutes an Inquiry


Committee, which makes spot enquiries, examines various
witnesses, collects evidence and submits the report with
recommendations. Such investigations help in providing immediate
relief and justice to the victims of violence and atrocities. The
implementation of the report is monitored by the NCW. There is a
provision for having experts/lawyers on these committees.

A number of such inquiry committees have been set up over fourteen


years in order to combat many serious problems. Committees were set up to
investigate the alleged police atrocities and misbehavior with girl students
of Kurukshetra University the case of rape of a 30 year old woman in
Safdarjung Hospital, the case of a gang rape of 15 years old girl at Lucknow
and other such serious and heinous crimes against women.

Legal Functions:

A large part of the Commission’s mandate is related to legal research


for safeguards of women, legal interventions, recommendations on bills and
similar matters relating to the legal system of India. The legal cell of the
Commission was set up in order to deal with these functions.

6.10 NATIONAL COMMISSION FOR SCHEDULE CASTE AND


NATIONAL COMMISSION FOR SCHEDULE TRIBES

Consequently upon the constitution (eighty-ninth amendment) Act,


2003 coming in force on19-2-2004 vide notification of that date the
erstwhile national commission for schedule castes & schedule tribe has
been replaced by (1)National commission for schedule caste and(2)National
commission for schedule tribes .after notification of rules of national

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commission of SC &ST by social justice and empowerment department any
person belonging to SC and ST can apply to the commission for the
violation of his Human rights for the disposal of the complaint received the
commission has taken action through nominated members or through
offices situated in different states.

6.11 NATIONAL COMMISSION FOR MINORITIES

For the protection of the Human Rights of the minority communities,


residing in different states of india and to bring them in the main stream of
the society and for their progress. This commission was established under
The minorities act 1992.such commissions are constituted in different
states.

Overview on prison reforms

However, some experts believe that even the modem reformatory


techniques through individualization in prison fail in cases of hardcore or
habitual offenders, who would never respond favourably to any of the
reformative methods of treatment, as they accept prisonisation as a normal
way of life and criminality as a regular profession. So much so, that when
placed in a correctional institution, recidivists treat it as a place of leisure
and comfort. Thus, the treatment methods hardly serve any useful purpose
in case of recidivists and such criminals have got to be confined to four
walls of the prison and made to live a strictly regulated life. Commenting
on the policy to be followed in case of recidivists, Sir Lionel Fox observed,
ʻcertain people are worthless from social standpoint and are in fact
physically, mentally and morally a burden to society and there exists no
rational reason to provide care of them’. But according to me, with all
humility at my command feels that in such cases, what fails is not the
criminal, but the programme designed and it is the design of the

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reformatory programme in case of such criminals that is needed to be fine
tuned to meet the need. And for that purpose, the prison authorities must
take help from professionally trained psychologists, which can happen only
when prisons are manned by those with innovative and missionary zeal.

***

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Chapter - 7

RESEARCH
METHODOLOGY
CHAPTER -7
RESEARCH METHODOLOGY

7.1 INTRODUCTION

“A SOCIO – LEGAL STUDY OF PRISON SYSTEM AND ITS


REFORMS IN INDIA”, In this research the researcher has focused upon
the prison system of our country especially states of Gujarat, Delhi, and
Rajasthan etc. In this chapter main focus of Researcher will be on following
issues:

1. To get the prison system and environment of prison.

2. To get the prisoners living condition in prison.

3. Measuring the Crime Prevalence in prison

4. To get the Social Relationship of prisoners.

5. To get the steps taken in the prisons for the Reformations.

Through this chapter the scholar has tried to frame out the true
picture of problems which are faced by the prisoners in India. Also by
collecting the primary and secondary data related to prison system
researcher has tried to portray the main features of prison culture, prisoners
right & duties, there facilities,techniques used for their reformation etc.
these studies were done by using some tools and techniques. The primary
data was collected through interaction with few judges, lawyers, police
authorities as well as with prisoners whereas secondary data was collected
through newspapers, books, magazines internet, journals etc.

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7.2 TOOLS AND TECHNIQUES

In this research methodology for the research, researcher has used


tools like ‘Content Analyses’, ‘Interviewing the Prisoners’, ‘Interviewing
the Prison Staffs’, ‘Case Studies’ ‘Reports’ etc. scholar has use some tools
for collecting the data for fulfilling requirements for the completion of this
research.

7.3 DATA COLLECTION METHODS

Researcher has used the following tools and techniques for collecting
data:

1. Content Analyses: in this method an analytical study of the contents


regarding the prison system, its environments, Conditions of
prisoners, facilities provided to prisoners were discussed

2. Interviews of Prisoners, Prisoners’ Relatives and Prison Staffs

a) Interviewing the Prisoners: In this method researcher have


interviewed the prisoners to understand socialism inside prison,
facilities which prisoners need as well as facilities which they are
availing presently..

b) Interviewing the Relatives of Prisoners: in this method scholar


has given summaries of the interviews taken of the relatives of
the prisoners.

3. Interviewing the Prison Staffs: In this method researcher has


mentioned summary of the interview with prison staff

4. NCRB data review

5. Case Studies

a) Prison condition from PUCL Bulletin 1981

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b) Jail Investigation in India – A case study

c) Prison Condition of Tihar Jail 2013-14

6. Reformation Report – New Delhi

7.4 INTERVIEW RESULTS

7.4.1 Summary of Interview with Prisoners

Every interview with a convicted prisoner took place in the presence


of an experienced prison officer, who was positioned at the place from
where he could see and hear what passed between the prisoners and his
interviewer and he can prevent any article being passed between the two
parties. A lady Deputy of Superintendent, a Matron, an Assistant Matron or
a female warder shall be present when female prisoners are interviewed..
Ordinarily, the time allowed for an interview was about half an hour.
However, this could be extended by the Superintendent of the Prison at his
discretion. The Researcher prepared some questions for the prisoners to ask
about the system so that he could ask them within the provided time. Some
of those questions were as follows:

1. What facilities are being provided in the prison?

2. Is there any proper cares for the prisoners in the jail?

3. Have education systems been added in the prison system or not?

4. What techniques are being used by the prison staffs in the prison for
the care of the prisoners?

During the interview the prisoners told that they have got almost
every human right here in the jail, all the facilities have also been provided
to prisoners like bathroom, toilet, clothing, good quality meals, sports
facilities medical facilities etc. They also informed that they have also been
provided the education facility here in the jail. They told that the security

377
guards, reserve guards have also been provided for the care of them. About
the techniques used by the prison staffs, they told that many CCTV cameras
are being used in the jail, grounds around toilets etc.

The provision is that the interview could be terminated at any


moment, if the prison officer present considers that there is sufficient cause
for terminating it. In every such case, the reasons for terminating the
interviews shall be reported at once to the senior most prison officers
present in the prison.

7.4.2 Summary of Interviews of Relatives of Prisoners

Researcher prepared some questions for them (relatives of the


prisoners) to ask. Thus this research also depicts the stigma of having a
father, mother or sibling imprisoned, and of the sense of the otherness and
the exclusion that this creates, which comes through with most impact in
the interviews with prisoners children. The relatives of the prisoners when
interviewed there were little bit tensed about their relative in the jail.
Children talked about how they felt about their parents and grief and
sadness or shame which they have experienced. Still researcher interviewed
the relatives of prisoners, some of them told that most of the time they saw
their husband/wife/son/daughter any relative, in the jail suffers problems in
the jail. There is lack of care for them in prison. Parents of the imprisoned
young offenders talked about their efforts to help inmates with drug or
mental health problems. Parenting involved a range of the practical and the
emotional problems, including money worries, exhausting travel and
relationship breakdowns. The people in the jail have been given proper
facilities but there is no proper provision for food and diet. Researcher
asked the reason, since the staff in jail have informed that he was given the
proper facilities what they want, relatives further informed about
degradation of health of inmates, Means health was not good according to
the relatives of the prisoners. Some relatives of the prisoners also told that

378
the prisoners in the jail have been tortured a lot since sometimes they have
noticed marks of physical abuse.

However, the researcher found that the majority of prisoners were


absorbed in the prison environment and showed little understanding of the
problems faced by their families. They also had a tendency to abdicate
responsibility, insisting that their relatives (especially mothers and female
partners) were coping well. Upon release, an unrealistic expectations and a
lack of understanding often led to a failure of the relationships, or of the
reintegration process. It came to know while visits take place, that there is
limited support of family it may be difficult to talk freely in a public arena
and problematic topics may not be discussed. Both relative and prisoner
demands that they should be allowed to talk in a relaxed and peaceful
atmosphere, but this provision is still very rare.

7.4.3 Summary of Interviews of Prison Staffs

The prison staffs told the same thing which the prisoners informed.
They also told that the boundaries of the prison have been fully protected by
the wires such that no prisoner can escape. According to them as per the
education schedule, the books and library facilities are provided in the
prison. They also told that there : “Nobody is superior and nobody is
inferior. All human beings are brothers and they should act in the interest of
each other and for common progress. ” and also “Whole world is one
family”. Hence such is the relation between prisoners and prison. For the
women, separate cells have been made considering the safety of the women
prisoners. All the medical facilities have been provided for the prisoners
and women prisoners. For the women prisoners there was provision of
women staff. If any woman is pregnant then all the medical facilities are
provided to them. This is what they think of women prisoners: “Where (in
Home or somewhere either jail or country) women are worshipped and
respected, their honor and dignity are protected, and the Gods stay there

379
happily. Where she is insulted and unhappy, the family becomes unhappy
and finally it is destroyed.”

When researcher asked about the torture in the prison, the prison
staff told that if any prisoner tries to escape, or misbehaved then only they
are being ill-treated. Researcher was told that If any prisoners breaks the
discipline of the prison Or doesn’t follow the rules of the prison and
continuously involve themselves in violent activities inside prison with
other prisoners or prison staffs then 3rd degree is used as well. But staff
denied the routine torture in the prison systems since they consider it as the
complexities of the prison system.
Hence after considering the thoughts of the prisoners and the prison
staffs, the researcher concluded that condition and environments are very
safe for the prisoners. The prisoners were getting the education by many
educational boards like open boards, open universities etc. Hence the
illiterate prisoners are being given education and they are also taught
humanity. The prison system in Delhi, Rajasthan etc. have been under
reformations. The thinking of the prisoners has been changed by the
education system in the prison.

7.4.4 Summary of Interviews with advocates


According to advocates with whom researcher interacted maximum
prisoners are ‘under trial’ and such matters are pending for long time. This
is due to delays in verdicts given by judiciary, also delays caused by police
in collecting evidences, and unwillingness of appearances by witnesses in
court. There are too many instances of giving false FIR, complaints etc.
researcher was also explained about the importance of new system of video
conferencing in jails by judiciary.

7.5 PRISON STATISTICS IN INDIA 2012 (Data Taken From


NCRB)
Prison institutions are one of the three main constituents of the
criminal justice system. Recently, there has been considerable change in the

380
social perceptions towards the prisoners. The prisons are no longer regarded
as the places for punishments only. They are now being considered as
reformatories and greater attention is being given to ameliorate the
conditions in the jails, so that they must have a healthy impact on the
prisoners in developing a positive attitude towards the life and society. The
ultimate purpose is to combine the prisoners in the society after their release
from the prisons. A comprehensive database has been developed at the
national level on all aspects of these institutions what has been found to be
of immense use to the prison authorities in planning various activities
connected with the prison administration. The input forms have been
reviewed and made more comprehensive in year 2000 to collect data on
every aspect of prison activities. The below given the summary of the data
of Prison Statistics in India 2012.

 No Borstal school, Open jail and other jail existed in any of the UTs
at the end of 2012.

 The highest number of 80,311 inmates (around 77,148 male: 3,163


female) were reported from Uttar Pradesh (20.9%) followed by
Madhya Pradesh 33,959 (32,778 male: 1,181 female), Bihar 28,550
(27,622 male: 928 female), Maharashtra 24,509 (23,171 male: 1,338
female) and Punjab 23,219 (21,944 male: 1,275 female) at the end of
the year 2012.

 Chhattisgarh reports illustrated the highest overcrowding in prisons


(252.6%) and followed by Delhi (193.8%).

 A total of 344 women convicts with their 382 children and 1,226
women under trials with the 1,397 children were lodged in the
various prisons in the country at the end of 2012.

 A total number of 4,470 inmates having mental illness out of 3,


38,135 inmates, accounting for 1.2% of the total inmates, were
lodged in various jails during 2012.

381
 The Maximum numbers of 26,250 (25,406 male: 844 female)
convicts were reported from Uttar Pradesh (20.5% of total convicts
in the Country) followed by Madhya Pradesh 16,125 (15,631male:
494 female) accounting for 12.6% of the total convicts in India at the
end of the year 2012.

 Murder alone accounted for about 59.04% (64,949 out of 1, 10,001)


of the total convicts under IPC Crimes. The highest percentage of the
murder convicts was reported from Uttar Pradesh (17.6%) and
followed by Madhya Pradesh (16.0%) of the total murder convicts at
the end of 2012.

 23.2% (1,624 out of 7,009) of the conviction related to the rape cases
were reported from Uttar Pradesh.

 The highest percentage of around (26.9%) (54,715 out of 2, 02,762)


of under trials were charged with murder. Uttar Pradesh reports
illustrated 15.7% of such under trials (8,595 out of 54,715) followed
by Madhya Pradesh 4,746 (8.7%).

7.5.1 Detention Period (NCRB DATA)

 Maximum number of under trials (37.7%) was detained for up to 3


months during the year 2012.

 A total of 2,028 under trials (0.8% of total under trials) were


detained in jails for more than 5 years at the end of the year 2012.
Uttar Pradesh had the highest number of such under trials (324)
followed by Punjab (317).

 A total of 414 convicts including 13 females lodged into the different


jails of the country were serving capital punishment at the end of the
year 2012.

 Around 69,133 convicts including 2,787 women accounting for


54.1% of the total convicts in the country were undergoing sentences
for life imprisonment at the end of the year 2012.

382
 A total number of 97 prisoners were awarded capital punishment and
capital punishment of 61 inmates was commuted to life
imprisonment during 2012.

 One inmate was executed in the country (in Maharashtra) during


2012.

 A total of 14, 34,874 under trials were released, out of which 76,083
under trials were acquitted, 2,842 under trials were transferred to
other States during the year 2012.

 The total amount of 2, 20,542 convicts were released during the year
2012.

 A total of 12,135 convicts were habitual offenders/recidivists which


were accounted for 5.5% of the total convicts admitted during the
year 2012.

CHART 7.1 SEX WISE PERCENTAGE DISTRIBUTION, UNDER


TRIAL PRISON – 2012(NCRB)

383
7.5.2 Inmates Particulars (data from NCRB)

 Out of 1, 27,789 convicted inmates 1, 16,861 belong to same state,


8,445 inmates belong to other states and 2,483 inmates belong to the
other countries.

 Out of 1, 27,789 convicted inmates, majority of the inmates are


either illiterate (37,255) or educated up to class X (58,014).

 The highest number of graduate (1,218) and post graduate (398)


convicts were reported from Uttar Pradesh at the end of the year
2012.

 Out of 2, 54,857 under trials inmate, 76,626 were illiterates, 1,


10,385 were educated up to Class X, 49,871 having education of
above Class X & below the graduation, 12,459 were graduates and
3,471 were post graduates persons.

CHART 7.2 EDUCATIONAL QUALIFICATION-WISE


DISTRIBUTION – 2012(NCRB)

384
7.5.3 Deaths in Jail(NCRB DATA)
Death of a prisoner is always a matter of serious concern for prison
administration. Sometimes such deaths lead to the “law and order”
problems. Deaths in the jails have been broadly classified into the two
categories i.e. natural deaths and the unnatural deaths. Unnatural deaths
include the suicide, murder by the inmates, death due to firing, death due to
negligence or excesses by jail personnel, etc.

 A total number of 1,471 deaths were reported (1,345 natural and 126
un-natural) during the year 2012.

 A total of 55 deaths of the female inmates were reported during the


year of 2012, wherein 8 deaths were suicidal in nature reported
during this year.

CHART 7.3 DEATHS OF INMATES – 2012(NCRB)

7.5.4 Number of convicts and under trial prisoners in different age


groups
The under trial prisoners formed a major share of prison inmates
among various types of prisoners. The percentage of under trial and

385
convicted prisoners to the total prisoners in various jails was reported as
66.2% and 33.2% respectively in India during the year 2012.

 During 2012, 43,622 (34.1%) convicted prisoners were between the


age 18 - 30 years, 62,135 (48.6%) convicts were between 30 - 50
years and 22,032 (17.2%) convicts were 50 years and above. No
convicted prisoners are in the age group of 16-18 years was lodged
in any jails of the country.

 During the year 2012, 91 under trial prisoners were in the age group
of 16-18 years, 1,17,984 (46.3%) in between 18 - 30 years, 1,06,191
(41.7%) under trials were in the age-group of 30 - 50 years and
30,591 (12.0%) under trials were 50 years or more.

 Only 10 States/UTs reports have illustrated the lodging of civil


prisoners. A total number of 95 convicted and 29 under-trial civil
prisoners were reported during the year 2012.

CHART 7.4 NUMBERS OF CONVICTS BY THE


PRISONERS(NCRB)

386
CHART 7.5 DISTRIBUTION OF CONVICTS – 2012(NCRB)

CHART 7.6 CONVICTED AND UNDERTRIAL PRISONERS – 2012


(NCRB)

387
CHART 7.7 AGE GROUP WISE DISTRIBUTION (INDIAN FEMALE
INMATES) – 2012

CHART 7.8 AGE GROUP WISE DISTRIBUTION (FOREIGN


FEMALE INMATES) – 2012(NCRB)

388
7.5.5 Rate of Change of Convicts

 The number of convicted prisoners have decreased marginally by


0.6% in the year 2012 (1, 27,789) over 2011 (1, 28,592).

 Number of the persons convicted under murder charges decreased by


2.3% in year 2011 over 2010 and percentage change in 2012 (64949
convicts) was insignificant as compared to 2011 (64954 convicts).

 Number of the persons convicted under the attempt to murder


increased sharply by 23.2% in year 2011 and decreased sharply by
17.7% in the year 2012 over the respective previous year.

 Number of the persons convicted under rape charges have been


increased by 2.6% in year 2011 and marginally decreased by 0.3% in
the year 2012 over respective previous year.

7.5.6 Training

Training of prisoners in various vocational skills in the Prison


Institution has received a lot of importance in almost all the States/UTs.
These training programmes can provide the opportunities for the prison
inmates to engage themselves in fruitful pursuits during the term of their
sentence in jails. Training for prison inmates not only affords value for
one’s work but also makes the prisoners learn the skills which would enable
them to follow a vocation after their release from the jails. The training
facilities available in the jails, that depends on the local conditions. The
availability of the raw materials, local market needs, demands and the
marketing of finished products mainly decide the vocational training
facilities that is available in any jail premises.

 A total number of 52,228 out of 3, 85,135 inmates were trained


under the various vocational training in various jails during the year
2012.

389
 Likewise previous year, maximum number of training (6,249) was
imparted in the weaving followed by tailoring (4,245), carpentry
(4,208) and agriculture (3,095) during 2012.

 The highest number of inmates trained in agriculture, carpentry,


canning, tailoring, weaving, soap & phenyl making and handloom
were reported in Madhya Pradesh (1,766), Gujarat (1,634), Assam
(129), Delhi (986), Gujarat (1,772), West Bengal (164) and Madhya
Pradesh (167) respectively during 2012.

 Amongst the State/UT, around 81.4% (617 out of 734 lodged


inmates) inmates have been provided with the vocational training in
Chandigarh followed by Gujarat (49.5%) means (5,737 out of 11,585
lodged inmates), Tamil Nadu (46.3%) means (6,107 out of 13,195
lodged inmates) and Delhi (42.0%) means (5,084 out of 12,113
lodged inmates).

CHART 7.9 INMATES POPULATION VS NUMBER OF


INMATES 2012(NCRB)

390
7.5.7 Rate of Change of Under Trial Prisoners(NCRB data)

 The number of under trial prisoners has increased by 5.7% in 2012


(2, 54,857) over 2011 (2, 41,200).

 Number of under trial prisoners under murder charges decreased by


0.3% in 2011 and increased by 5.8% in the year 2012 over the
respective previous year.

 Number of under trial prisoners under attempt to murder charge


increased by 3.0% in the year 2011 and 5.1% in 2012 over the
respective previous year.

7.5.8 Prison administration and Earning by prison inmates(NCRB)

 A total number of 35,044 jails inspections were done in country in


which 51.7% of the jail inspections were done by the medical
officials. However, 8,543 judicial officials and 3,559 executive
officials were also been inspected the prisons during 2012.

 The highest gross earning by producing goods by the inmates trained


in the various vocational programs was reported from Delhi (2,885.0
lakh) followed by Bihar (1,708.6 lakh), Uttar Pradesh (1,456.1 lakh),
Kerala (1,255.3 lakh), Tamil Nadu (1,156.0 lakh) and Maharashtra
(1,143.1 lakh) during the year 2012.

 The highest earning per inmate was reported from Delhi (23,817.4)
followed by Chandigarh (21,812.0) and Kerala (18,069.7) as
compared to All-India average of (3,329.9) during 2012.

 The highest annual expenditure per inmate was reported from Delhi
(` 83,343.5) followed by Nagaland (71,256.3), D&N Haveli
(54,054.1) and Arunachal Pradesh (52,816.9) as against All-India
average of (22,476.9) during the financial year 2012-13.

391
7.5.9 Inmate population and strength of jail officials
An important aspect of prison administration is the population of
inmates that the authorities have to handle in the prisons. One thing that
comes out strikingly with the based on the available data is that the jails are
over-crowded.
Data relating to the population of both male and female inmates are
collected from the prison authorities in order to find the relationship in
terms of the occupancy and overcrowding between the capacity available in
prisons and the actual number of prison inmates. The occupancy in any jail
changes on daily basis due to addition of new prisoners and the release of
old ones, nevertheless, an estimate of the population of the inmates at the
end of the year would serve as a good indicator to determine the occupancy
rate.

 The prisons have a staff strength of around 50,358 jail officials to


take care of 3, 85,135 inmates which amounts to 1 Jail Official per 8
inmates.

 The highest number of inmates per prison staff was reported from
Jharkhand (20) followed by Bihar (17), Chhattisgarh (15), Uttar
Pradesh & Uttarakhand (11 each) and Rajasthan & Gujarat (10
each).

CHART 7.10 INMATE POPULATIONs – 2012 (NCRB)

392
Hidden Facts

 A total of 32,142 out of 1, 14,665 inmates from Tamil Nadu were


taken out of the jail on remand & the other purpose. While maximum
of the 37.0% (2, 56,939 out of 6, 95,134) inmates in Delhi were
taken out of the jails for the medical attendance.

 A total number of 489 inmates were escaped from the various


prisons, wherein 123 inmates were reported escaped from the inside
prison during 2012.

 A total of 8 incidences of jail break and 160 clashes/group clashes


were reported during the year 2012 in which 1 inmate was killed and
194 inmates were injured in such clashes.

 Total numbers of 5,096 jail officials (1,090 Officers and 3,784 Staff)
had attended the various training programs during the year 2012.

 A total number of 1,631 were provided with the financial assistance


on release; however 3,776 and 62,050 prisoners were also
rehabilitated and provided with the legal aid respectively during the
year 2012.

 The State of Rajasthan, Jharkhand, Odisha, Tamil Nadu, Uttrakhand,


West Bengal and UT of Chandigarh disposed off all the complaints
(100.0% disposal) received through the National Human Right
Commission (NHRC) during the year 2012.

 A total of 36,459 inmates had been released on parole. However, 563


inmates were kept on observation as parole absconders out of which
201 parole absconders were re-arrested during 2012.

 Amongst all the States/UTs, Pondicherry has provided highest wages


of rs 170, 160 and 150 per day to skilled convicts, semi-skilled
convicts and unskilled convicts during 2012.

393
Jails inspection and Visits

The State Governments have framed rules regarding appointments


and the visits by the official and non official visitors in exercise of the
powers conferred by the sub-section 25 of section 59 of the Prisons Act
1894. The officers working as ex-officio visitors and the other non official
visitors and their term etc. varies as per the jail manuals of different
States/UTs, but following common features have been found in jail manuals
of all States/UTs.

The official and non official visitors of the jail should constitute a
board of which the District Magistrate should be ex-officio chairman. The
functions of the board of visitors shall be:-

i. To visit the prison periodically;

ii. To attend to request of inmates pertaining to their care and welfare;

iii. To help the administration in correctional matters;

iv. To enter any observations in the visitor’s book about their visit to the
prison.

Ex-officio visitors: The following officers shall be ex-officio visitors of the


prisons in their respective jurisdiction namely, District Magistrate, District
and Sessions Judge Chief Judicial Magistrate, Director of the Health
Services, Director of the Industries, Director of Agriculture, Director of the
Textile industry, Executive Engineer, District Education Officer and the
District Health Officer.

Non-Official visitors: The State Governments should appoint the non-


official visitors for every jail and such appointments made by the
Government; it shall be notified in the State Government gazette. The
members of the legislative assembly representing the concerned
constituency, social workers and those interested in correctional works,

394
psychiatrists, psychologists etc. have been appointed as non-official
visitors.

Inspection of jail by the visitors and their remarks in the visitor’s


minute books are aimed at the improvement of the conditions of the jails
and toning up the efficiency and management of jails. The information
regarding the inspections carried out in the jails have been compiled under
three categories: Medical, Executive and Judicial. The details of such
information received from the States and UTs are presented below:

Inspections

The total numbers of inspections by the medical authorities were


observed as the highest (18,111 out of 35,044 inspections) followed by
judicial (8,543) and executive (3,559) inspections.

Andhra Pradesh has reported relatively large number of the


inspections (5,484) by medical authorities during the calendar year 2012.
Rajasthan (1,563), Haryana (1,858), Punjab (1,345), West Bengal (1,292)
have also reported considerable number of inspections by the medical
authorities. No inspection by the medical authorities was reported from
Manipur, A & N Islands and Lakshadweep.

West Bengal has reported the highest numbers of the routine


inspections (550) by executive officers followed by Madhya Pradesh (347),
Punjab (297), Uttar Pradesh (268) and Tripura (239). Andhra Pradesh,
Sikkim and D&N Haveli have reported no such inspections

7.6 PRISON CONDITION OF TIHAR JAIL (2014)

Tihar jail is one of the largest detention facilities in the world.


Hence, it is bound to have faced every problem a prison in India faces,
including all mentioned in this thesis. But the Delhi Prisons Authority
(DPA) has continuously ensured the adequate living conditions for all its

395
prisoners by taking various reformative steps. Here the researcher will try to
review what these steps are and how they were implemented to make Tihar
jail what it is today.

7.6.1 Expansion

Tihar jail is continuously expanding since its establishment in the


Tihar village area of Delhi in 1958., till the year 1980, Tihar Jail consisted
of one central jail with a sanctioned capacity of 1273 prisoners. This prison,
around the mid of 1980s was trifurcated into Central Jail No. 1, 2 and 3
with the collective capacity of 1760 prisoners. In year 1980, another district
jail was constructed in Tihar with a sanctioned capacity of 740 prisoners.
This jail was elevated to the Central Jail No. 4 in the year of 1990. In the
year of 1996, a special prison was constructed for adolescent prisoners
between the ages of 18 to 21. This jail, Central Jail No. 5, had a capacity to
lodge around 750 prisoners. In the year 2000, an exclusive women’s jail,
Central Jail No. 6, was commissioned with a capacity to lodge around 400
female prisoners. Between 2003 and 2005, three Central Jails with a
collective capacity of 1550 prisoners and one District Jail (at Rohini) with
the capacity of 1050 prisoners were commissioned by the Delhi Prisons
Authority.

Presently, another jail under the Tihar Prisons Authority, known as


the Mandoli Jail Complex, is being constructed. It has a definitive capacity
to lodge as many as 3500 prisoners. The salient features of this Mandoli Jail
Complex are:

 The complex will house 6 Jails, in which one for convicts, one for
first time offenders, and one each for long term under trials,
adolescent, women and High Security prisoners.

 There is Air Circulation System in the all wards.

 There is No electrical fixtures inside the wards.

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 Inbuilt mechanisms for Close Circuit Television (CCTV), Optical
Fiber Cable Network.

 Dual water supply system, R.O. System, Solar Heating System,


Sewage Treatment Plant, Rain Water Harvesting.

 Energy attentive buildings.

 Provision of separate prison for High Security prisoners and the First
Time Offenders to ensure total segregation.

Therefore, the issues of overcrowding have been tackled by


continuous expansion by the Tihar jail. It is a different story that even
today; the actual population of the prisoners in Tihar jail is almost twice as
much as the sanctioned capacity.

7.6.2 Special Courts

Hon’ble Chief Justice of India (Retd.) Shri A.S Anand, rightly


expressed his concerns regarding the increasing number of under trial
prisoners lodged in the various jails of India. In order to curb this problem,
the Delhi High Court directed the Lt. Chief Metropolitan Magistrate of
Delhi to organize special courts in the Central Jail of Tihar for petty
offenders and was willing to confess. The first special court in Tihar was
organised in the May of 2000, and since then, as of December 2011, 130
such Courts have been organised in Tihar Complex on monthly basis and
cases of around 5127 prisoners have been decided and disposed off, leading
to a win-win situation for both, the under trials as well as prison authorities.

7.6.3 Semi Open Jail

Tihar Jail has recently established a new wing in its Complex,


Janakpuri, New Delhi which is known as the Semi Open Jail. This is the
first of its kind in this country.

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The Semi Open Jail, along the lines of the concept of Open Jails, is
being used to conserve the prisoners who have been sentenced to life and
have less than 2 years of that sentence left to serve and have a good track
record.

The inmates of semi-open jails have a chance to step out of their


cells and earn a wage fixed by government, though only within the 400 acre
campus of the Tihar jail complex. They are allowed to work in PWD,
horticulture and the other contract based jobs inside Tihar premises. They
also run Tihar Canteen and Tihar haat, which are official outlets for selling
the things which are produced in the factories of the Central Jail No. 2.

This semi open jail, apart from further reducing the overcrowding in
the Central Jails, provide such inmates with the opportunity to re-adjust into
the society after such a long stay inside the prison cut off from the real
world altogether. This is a major step towards their rehabilitation after the
release, which could be helpful for them and their family as well by making
them lead a relatively normal life once they are released from the prison

7.6.4 Free Legal Aid facility

Government organizations like the Delhi Legal Service Authority


(DLSA), National Legal Service Authority (NLSA) and the Delhi High
Court Legal Services Committee (DHCLSC), along with many other
NGOs, thrive to provide free legal aid to the prisoners of Tihar Jail, as
mandated by Article 39 (A) of the Indian Constitution.

The DLSA has set up a free legal aid and counselling centre in the
Tihar Jail Complex to provide a free legal help to the poor inmates who are
in need of it but can’t afford it.

The following are the features of Legal Aid activities in the Jails:

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 A Free Legal Aid Cell is functioning in each jail in which the
stationery items, typing materials, books, Photostat machines etc.
have been provided by the Prison administration.

 DLSA has about 30 advocates on its roll, who are regularly visiting
the Legal Aid Cells of the Jail and giving the legal aid. They are also
provided assistance by the advocates of the various NGOs.

 DHCLSC has around 20 advocates on its roll for arguing the


petitions/appeals of the prisoners.

 Regular drafting of application/petition/appeal of the prisoner by


advocates and Para Legal Aides formed by the legally literate
prisoners is done. These Para Legal Aides are being given a regular
training so that Legal Aid schemes may function most smoothly and
its benefits may reach to the deserving prisoners.

 The matter of release of the young prisoners, woman prisoners, sick,


infirm or old aged inmates are taken up on the priority with the
Courts.

 Custody parole to the convicts on the occasion of the marriage,


death, serious illness etc. is being routinely allowed by the Jail
Superintendents.

7.6.5 Educational Facilities

Tihar Jail Authorities provide the immense educational opportunities


to the inmates during their stay. The curriculum is designed in such a way
that even after their release, the prisoners can easily continue their
education in the outside world and lead a better life. As the website of the
Delhi government asserts that if an illiterate person landing in Tihar Jail can
look forward to being literate, authorities help him if his stay is more than a
week. The most important aspects of the education system in Tihar Jail is
that the educated prisoners voluntarily teaches less educated or illiterate
prisoners.

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The educational activity in Tihar Jail are organized at the different
levels for the different categories of the prisoners like illiterates, neo-
literates, semi-literates, literates and for those desirous of getting higher
education. There are study centers of Indira Gandhi National Open
University (IGNOU) and National Institute of Open School (NIOS), from
where a prisoner can pursue his studies and he is given certificate/degree
for that course without mentioning the place of examination being a jail.
Literate inmates are provided the training and then help the Prison
administration in imparting the education to the other inmates. Special
attention is also given to illiterate inmate so that he may be able to read and
write his name within a week time. Advance educational avenues are
available to the prisoners so that if they want to pursue higher studies then
they may do so through IGNOU open schools etc. Special attention is also
kept for the prisoners appearing for various competitive examinations. All
the costs, including the fees, the stationary and anything a prisoner might
need for the proper education, is borne by the Government.

Ensuring the proper and adequate educations to the prisoners is a


huge step towards the reformation. As it has been continuously observed,
one of the major reasons for crimes throughout the world is lack of
education and unemployment. Education helps the inmates to make
themselves capable enough to work in the outside world on release and
hence, they can lead a crime free life. Moreover, the education to the
prisoners makes them more aware of their rights and the responsibilities.
Hence, it ensures the miscellaneous welfare of the prisoners.

As a part of the vocational training, the products being made inside


the prisons are marketed outside. In fact, there is now a brand name “TJ”
under which various products are being produced by Tihar inmates are sold,
and revenue earned. There are Tihar Haats across Delhi which exclusively
market such products and have a loyal band of consumers.

400
7.6.6 Campus Placements at Tihar

The placement drive at Tihar was started in 2010 as a part of the


rehabilitation program for the prisoners and to ensure a bright future and
rehabilitation. In the year 2014, there was a record 100% placement of the
Tihar inmates in various factories and companies on the basis of the
vocational skills and certificates such inmates managed to earn during their
stay in the Tihar Jail.

7.6.7 Recreational Facilities

Various programs like the “Tihar Olympics” and the “Ethnic Tihar”
ensure good light hearted recreational facilities for the inmates of the Tihar
jail. Tihar Olympics is a winter sports festival organized in the Tihar jail
consisting of sports like volleyball, cricket, basketball, kho kho, kabaddi,
carom etc. The Ethnic Tihar on the other hand is held during spring season
and consists of competitions like music, dance, painting etc. Eminent
personalities from the field of sports and the culture are invited during these
competitions to boost the morale of the prisoners.

All Religious and National festivals are also being celebrated by one
and all inside the prisons. On Republic Day and Independence Day, the
National Flag is hoisted in all the prisons. All religious festivals like Holi,
Diwali, EId, Guru Parv, X-mas etc. are celebrated by one and all. On
Rakshbandhan Day, all sisters/ brothers are allowed to meet the inmates and
tie Rakhies. Sweets are also prepared inside the prisons and sold to the
visitors.

According to the 2012 Annual Review of the Tihar Jail, a cricket


academy has been established at Tihar in association with NGO Divya Jyoti
Jagriti Sansthan to give quality training to those inmates who are interested
in learning and playing cricket. For the same purpose Mr. Rajendra Pal, the
coach of the famous cricketer Mr. Kapil Dev, had been invited and
requested to select Tihar XI. The selected team is being coached to enable

401
them to play matches with the teams outside. This encourages the
community participations in the reformation activities, which ultimately
will help the prisoners in their rehabilitation.

According to an article in IBN Live website (9th January 2013),


recently Tihar Jail launched Tihar Idol, inspired by the successful musical
reality show ‘Indian Idol’. About 350 contestants and many elimination
rounds later, the winning bunch has now become the first worldwide to cut
a commercial music album from inside a jail.
All these not only help the prisoners to make a creative use of their
leisure time inside the prison, but also help them to recognize their talents
and encourage them to pursue same, once they are released from the prison,
hence reforming them into better human beings.

7.6.8 Medical Facilities


The medical care inside the Tihar jail is managed by experienced
medical and para medical staff from the Delhi Government Health Services.
The prison authorities thrive to provide round the clock medical care, and
also refer the prisoners to specialty and super specialty hospitals if required.
The basic features of the medical care in Tihar jail are:

 150 bedded Hospital with Medical, Surgical, Tuberculosis,


Psychiatric Wards, round the clock casualty services.

 A minor Operation Theatre in Central Jail Hospital.

 Round the clock Dispensary with the Medical Observation Room


facilities in all Jails headed by Senior Medical Officers.

 Special treatments and special diets to the old and sick prisoners.

 ICTC Centre at the Central Jail Hospital.

 OST Programmes is being initiated in DAC.

 Regular Health check-up Camps is also arranged by the Jail Doctors


and NGOs.

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In 2007, a drug de-addiction centre was also established in the Tihar
jail. It is noticed that most of these drug addicts are repeaters and are
arrested for the petty offences, with most being vagabonds or jhuggi
dwellers working as laborers / rickshaw pullers / truck drivers etc. In the
most cases, the crimes are being committed by drug addicts to meet their
requirement of drugs, the addiction for which is chronic in most cases. The
de-addiction centre is well equipped to handle such chronic cases with the
empathy and compassion, and has shown encouraging results.

Vocational classes in English/Hindi typing and Commercial Arts are


conducted by the Directorate of Training & Technical Education and
certificates are issued to successful students. For spreading the Gandhian
Philosophy, a Gandhi Centre has been established by Gandhi Smriti and
Darshan Samiti, Government of India at IGNOU ward. More than 500
books on Gandhian philosophy have been added to the library. Some of the
inmates who joined the path of ’Reformation through Education' have been
successfully rehabilitated.

Expenditure on fees for IGNOU/NIOS courses is borne by the


Government of India. Study material like notebooks, pens etc. is also being
provided for free of cost to inmate students. Many dignitaries including
Chief Minister, Ministers, Director/Inspector General of various prisons,
Judges, Vice-Chancellor of IGNOU, Chairman NHRC, Media persons and
NGOs of International organizations had visited the centers during last one
year and have appreciated the efforts of jail administration

7.7 PRISON CONDITIONS IN STATE OF GUJRAT

As we know the prison are meant to confine the offenders and keep
the prisoners in safe custody. Home Department of Gujarat Government is
responsible for management and administration of prison and reformations
of prisoners. till 1 st November, 2013, the occupancy rate of Gujarat jails is

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93.02%, or overcrowding rate of the prison -6.97%. Going by the individual
figures, jails of 17 states and UTs in the country are overcrowded. This
problem arises due to heavy inflow of the prisoners against the limited
accommodation capacity and has been long standing, not only in India, but
also in some western countries. Implications of such a situation are the
rough hygiene conditions in the jail premises, additional burden on the staff,
and chances of mismanagement, etc.Gujarat is better off in all such respect,
thanks to effective steps taken by the central jail authorities in the last
couple of years. Not just prisoners, but even jail staff members are finding
the ‘work place’ far more manageable. As per the figures from the state
prisons department, jail overcrowding ratio in the state now runs in
negative.

Against the given combined capacity of 12,318 inmates, the 26 jails


in state have 11,459 inmates at present, indicating an overcrowding rate of -
6.97%.We know negative ratio is based on the cumulative total of all the 26
prisons, not every jail is technically ‘under-crowded’. As per central
authority figures, as many as 14 jails of the state are under crowded and
have negative rate of occupancy. The remaining 12 are either more or less
overcrowded. However, even this is good news as the overcrowding has
gone down in these jails.For this we can consider the statistics of the crime
2012 in Gujarat and Delhi.

Summary of the statistics of crime 2012 in Gujarat and Delhi:

Considering the Cities of Gujarat : As we know the population of


Ahmadabad is around 65 lakhs, the rate of total crimes is “178.7” in
Ahmadabad city. But in Surat, as its population is around 56 lakh, yet it is
far criminal based city, crime rate is quite high “533.7”.

While in Delhi it is quite better than Gujarat. Delhi having the


population around 163 lakh but the incidents happened is only little above

404
the 5000, its rate in crime is 31.9 only.Among these is Ahmadabad central
prison, which is still overcrowded by 1.89%. Against the authorized
capacity of 2,586, the central jail houses 2,635 inmates, including convicts,
under-trials and detainees. However, against the 40% figure 10 years ago,
this seems definitely much better. Similarly, In Vadodara, the central prison
shows 38% overcrowding, down from almost 90% during 2002.As per the
figures illustrate, three of the most under-crowded prisons include Amreli
open jail with “-77.5%”, Rajpipla sub-jail with “-64.89%” and the newly
inaugurated Patan sub-jail with “-58.91%”.Junagadh district prison with
“66.04%”, Surendranagar sub-jail with “60%” and Vadodara central prison
with the “38.87%” overcrowding are among the most overcrowded ones.

Percentage of overcrowding has gradually come down due to


increase in authorized capacity by constructions of Gondal Sub Jail, Palara
special Jail, Amreli Sub Jail, New Undertrial Jail at Ahmadabad, Addl.
Under trial jail at Rajkot, Female Section at Ahmadabad Central Jail,
upgradation of Palanpur & Mehsana Sub Jails into District Jails and
construction of 81 additional barracks. Gujarat state has initiated steps to
reduce the overcrowding that has been appreciated by Nation Human
Rights commission in 2008-09. Overcrowding percentage of about 220.86
was the highest in the Surat District prison among all the Gujarat Prisons,
with the total of 1123 prisoners as on 01/02/2012. With the newly
constructed Lajpore Central Prison being inaugurated, overcrowding at
Surat Prison has been converted to the under-crowding for the first time.
Thus, solving the constant problem of over-crowding in Surat. Prison
thereby satisfying criteria of 20 prisoners per barrack, as specified in the
Human Rights of the Prisoners and space requirement thereof is concerned.

405
FIGURE 7.1 SECURITY THROUGH ELECTRIC WIRES IN
CENTRAL PRISON

Newly constructed Lajpore Central Prison, Surat with 742 cameras


installed inside every barracks and positioned in such a way that almost all
the area can be monitored from the control room with other 64 PTZ (Pan,
Tilt and Zoom) installed in the external areas to monitor all outside
activities of every person and also surrounding of the jail premises
especially entry and exit points. Thus, the Video Surveillance / Electronics
Security Surveillance System is the first of its kind in Indian Jails and with
the largest number of 806 CCTV cameras installed makes Lajpore Central
Prison, Surat as one of the most Hitech Electronic Surveillance covered
Central Prison in India. The CCTV Surveillance systems have complete
operating software installed in the main server which has storage / recorder
device with one week recording capacity designed in the device. After one
week, the old storage could be taken in the back-up hard disk manually and
kept in the custody for record purpose. CCTV system has one control rack
installed in each building and that control rack is being connected to the

406
centralized control room located in the administration building. Fiber optic
cable laid into the prison is also planned for cable TV and telephone
networking. All the control rack is connected with the control room via IP
base telephone in a way that connected directly to the control room and any
information can be shared directly to the concerned building. Lajpore
Central Prison, Surat is the first Central Prison where during the night time,
entire area will be covered under 13 electric high mast poles with five
watch towers. Central Jail has been provided with the Supply of 500 KVA
electricity. To prevent any power outage / breakdown, 2 heavy duty electric
generators with capacity of 250 KVA has also been installed as a backup.
Entire outer peripheral with the high voltage D.C. live wires which has a
unique feature of non-fatality system, with the foolproof system deterrence
against the tampering or intrusion built into it. Lajpore Central Prison
hospital with 48 beds is fully equipped with the x-ray machines,
Sonography machine, ECG machine etc. Lajpore Central Prison, Surat has
special facility for SRP barracks, shopping complex in the residential area
with the IOC petrol pump coming up on the pattern of the private public
partnership whose income / profits will go to prisoners and jail staff welfare
fund.

7.7.1 New Initiative related to Prison systems of Gujarat

As far as Gujarat State is concerned, following facilities are extended


to Prison Personnel for their well being:

 Scheme of Group Accident Insurance covering the risks of the prison


personnel has been introduced with effect from 30th April, 2011.
Prison officials would be compensated in cases of accidental death,
permanent disability or partial disability. Members of guarding staff
would be paid Rs. 4, 00,000/- as the compensation & other staff
members will be paid Rs.5, 00,000/- as compensation.

407
 Amul parlour has been started within jail premises & one percent of
the profit of this parlour is given to the prison department out of
which only 50% is deposited to Staff Welfare Fund 50% is deposited
to Prisoners’ Welfare Fund. Rs. 20, 55,641/- has been deposited so
far. Income of rent of cricket ground at Ahmadabad Central Prison
has comes to Rs. 1.91 lacs so far.

 Staff Welfare Fund is being maintained under which all the loans are
given, prizes are given to scholars and Rs. 10,000/- are paid in the
case of the death of staff member during their services. Loan of Rs.
13, 90,000/- has been sanctioned to prison personnel for the year
2011-12. Rs. 35,605/- have been paid as a prize to scholars of jail
staff. Rs. 30,000/- has been paid as the financial assistance to the
families of deceased. An amount, Rs. 47,000/- has been written off
being outstanding the dues against loans sanctioned to prison
officials who died during service.

Large number of Officers numbering 31 in the year 2010, 141 in the


year 2011/12 upto now, were sent for various training programmes, namely
Vertical Interaction Course, Prison Management Course, Personality
Development Course, Human Rights in Prison Management, RTI Act –
2005, Best Prison Practices, Disaster Management, Positive Attitude, Stress
Management Course etc. Prominent Institutes where officers / staff were
sent for these trainings were Sardar Patel Insititute for Public
Administration, Ahmedabad, APCA, Vellore, Brhma Kumari Ishwariya
Vishwa Vidhyalaya, Mt.Abu, Jail Officer Training College, Pune, Indian
Law Institute, New Delhi, Indian Institute of Foreign Trade, New Delhi,
Gujarat National Law University, Gandhinagar, IIM, Ahmedabad, Institute
of Correctional Administration, Chandigarh, National Institute of
Criminology & Forensic Science, SVP, National Police Academy,
Hyderabad, New Delhi, NCRB, New Delhi.

408
For the better care of prisoners and make economic better, a new
system has been developed in the prison system of Gujarat that is “Video
conferencing”. Hence Gujarat has become the 2nd State of India introducing
video conferencing system to the prison. This video conferencing system
has been added between Ahmadabad Central Prison and Bhadra Court
Complex. The whole system is maintained by the employees of Sabarmati
Central Jail & Bhadra Court. Its objective is to:
(1) Become most economical way for saving Government Expenses
on Police escorting & Transportation,
(2) minimize the scope of escapes of the prisoners from the prison,
(3) Minimize unauthorized communication and smuggling of
contraband /prohibited articles and
(4) Ensures maintenance of Prisoner’s dignity as they are not
unnecessarily taken to courts and made to wait at courts only for
taking remand extension.
This system installed in the prison has many benefits. Such as since
2005 many hearings have been done through this system and much amount
of money have been saved since 2005 when installed.
Gujarat Prisons with the help of leading NGO has undertaken
campaign to create awareness about prisoners’ constitutional and legal
rights. Workshops have been organized to make available the rights of bail
under section 436-A of Cr.P.C. as well as Plea-bargaining under Section
265(A) to (L). 3211 undertrial prisoners have been released so far. Legal
services of students of National Law University, Gandhinagar is made
available to the prisoners of Ahmedabad/ Vadodara Central Prison.
Permanent Legal Aid Cell has been started with cooperation of Nirma Law
University at Ahmadabad Central Prison to create awareness of prisoners’
rights. Telephone booth facility at Ahmadabad Central Jail for prisoners
made operational from the year 2011. Legal Aid Clinics run by Law
Universities and Law Colleges in Gujarat have been established in the every

409
Jail to create the awareness about the Legal Rights of the prisoners by State
Legal Services Authority. Honorable Gujarat High Court has
operationalized the software for online submission of bail petitions of
prisoners linking with the jails. This system will facilitate the prisoners as
well as Hon’ble High Court for speedy disposal of the bail applications of
the prisoners. This kind of project is being undertaken for the first time in
India, by any Hon’ble High Court.
Education facilities have also been added in the prison system since
it has been seen that the literacy rate in Gujarat prison is as less as
imagined. Out of 16,327 illiterate prisoners, 15,530 prisoners have been
literate during the literacy campaign. 109 prisoners appeared in Diploma
examination on Gandhivichar organized by Gujarat Vidhyapeeth.
Long distance education through BAOU, IGNOU, Annamali University
Study centres of Dr. Baba Saheb Ambedakar Open University were
functional at only Ahmedabad/ Vadodara Central Prison & Junagadh
District Jail before 2010. Now study centres of Dr. Baba Saheb Ambedakar
Open University has been started at every Jails since 2011, covering all jails
even sub Jails. Before 2010 on an average 16 to 60 prisoners were enrolled
in various courses of Dr. Baba Saheb Ambedakar Open University but
during the year 2010, 2011and 2012 this figure has touched to 244, 3794
and 1298 respectively. Before 2010 the study centres of Indira Gandhi
National Open University was functional at Ahmedabad Central Prison &
now this enter has been also started at Vadodara Central Prison. Before
2010 average number of prisoners enrolled in Indira Gandhi National Open
University were 20 to 38 per year which has been increased up to 56, 321
and 531 for the year 2010, 2011 and 2012 respectively.
The reach of Indira Gandhi National Open University is being
expanded up to all the District Jails of Gujarat State by establishing study
centres. Before 2010 above both the universities were charging the fees
from the prisoners but after 2010 both the universities are providing
education at free of cost to the prisoners. Before 2010 female prisoners

410
were not enrolled in these Universities but since year 2011 for the first time
in all 189 female prisoners have been enrolled in various courses. Aganwadi
institution have been started for the innocent children living with their
mothers in Ahmadabad / Vadodara Central Prison with help of a reputed
NGO. Primary School has been started for the children of female prisoners
at Ahmadabad/ Vadodara Central Prison by a reputed NGO. A leading NGO
appointed fully trained lady teachers and music teachers for female sections
of Ahmadabad Central Prison and Vadodara Central Prison to educate
illiterate woman.
During the year 2011, 56 prisoners have passed the Diploma in Value
Education and Spirituality Course and for the first time in India
convocation was organized inside the Ahmadabad Central prison to award
the Degrees to successful prisoner-students.

 59 Prisoners have joined in Diploma in Value Education and


Spirituality Courses for the Year 2012.

 32 prisoners have joined in M.Sc. in Value Education and


Spirituality Course for the Year 2012.

 16 prisoners have joined in P.G. Diploma in Value Education and


Spirituality Course for the Year 2012.

NCRB-DATA

FIGURE 7.5 EDUCATIONAL GROWTHS IN PRISON IN GUJARAT

411
By adding the educative environment to the Prison System, the
prison climate/environment can be improved even much better. By adding
education facility to the prisoners, the environments of the Gujarat Prisons
have been bitterly improved as per figure says:

FIGURE 7.2 SPORTS FACILITIES IN PRISON

In the Gujarat Prison, books, library and other facilities for education
have also been introduced. In response to our appeal for donating books and
magazines for libraries of jails, made to various prominent Institutes/
individuals, jail libraries were enriched with 77,131 books and 11,480
magazines up to June 2012, from 29,962 books and 1,706 magazines, as on
01/05/2010. A quarterly magazine titled as “Kasturbani Kotdiathi” is being
published for female prisoners. `Hriday Manthan’ a quarterly magazines for
prisoners is being regularly published. With financial backing from Gujarat
Sahitya Academy, a poem book titled as “Karagruh ma Kalarav” containing
poems of prisoners was launched by Hon’ble Jail Minister.

412
Computer facilities are also being imparted to the jail system for
enhancing the computer literacy among the prisoners. As we can see
through the following examples:

 A digital computer language lab donated by Dr. Baba Saheb


Ambedakar Open University, with 24 computers and with trainers
has been established at Ahmadabad central Prison.

 In all 177 computers have been received by donation from various


NGOs, Corporate Bodies, and prisoners are now being imparted
Computer Literacy training at almost all the jails.

The vocational training facilities such as weaving, textile, carpentry


etc. have also been imparted to the system because of increasing the
opportunities to get job after when they get out of the jail and can live a
better life.

7.8 PRISON SYSTEM AND REFORMATIVE TECHNIQUES IN


STATE OF RAJASTHAN

7.8.1 Human Right at Prison in Rajasthan

Rajasthan Prisons Department has always been ahead in correctional


services for prisoners. The department provides services and programs to
address prisoner needs, structured use of leisure, and facilitate the
successful reintegration of prisoners into society. Upon arrival at jail, a
convict prisoner is screened by staff from the case management, medical &
mental health units. Later, a prisoner is assigned tasks where he or she
receives a formal orientation to the programs, services aimed at learning
vocational skill.

Researcher noticed that participation in a variety of programs that


teach marketable skills helps to reduce recidivism. Additionally,
institutional misconduct can be significantly reduced through programs that
emphasize personal responsibility, respect, and tolerance of others.

413
The prison department offers a wide variety of program aimed at
vocational training, formal and moral education and sports and recreational
facilities. Educated prisoners teach illiterate prisoners in prisons barracks so
that illiterate may acquire basic minimum knowledge of words and figures.
Those who want to take up or continue higher studies are given facility to
prepare and fee is also paid through Prisoners Welfare Fund or NGO's.

Rajasthan Prisons achieved landmark in the history of prisons when


ITI & study centre of IGNOU were established at Central Prison Jaipur.
Prisoners take up the courses of plumber, electrician, and like trades. Today
IGNOU study centers running at central jail jaipur, jodhpur, udaipur, kota,
ajmer, bharatpur, bikaner, sri ganganagar, and distt. jails alwar, bhilwara,
jhalawar and women reformatory jaipur.

The Administration of prisons is accorded utmost priority by


Government. Concerted efforts are taken to improve the all round welfare
measures of prisoners and basic infrastructure facilities. The principles of
correctional administration are imbibed by Prison Department so as to
provide for reformation and rehabilitation in the system

Rajasthan Jails Administration has undertaken exhaustive vocational


skill development programmes for convicted inmates which can go a long
way in rehabilitating them after their release.

The Human Rights of prisoners are taken care of by providing


wholesome living conditions with sufficient accommodation, ventilation,
food facilities, potable drinking water, better diet, medical and sanitation
facilities, interview and communication facilities, entertainment, free legal
aid etc. The staff is also provided sufficient training in Human Rights so as
to alter their attitude towards the Prisoners.

Vocational training in various trades is provided to convicted inmates


in nine jails of the state. These trades are making durries, niwar, cloth

414
dyeing, carpentry, iron-smithy, stitching, hosiery cloth manufacturing, etc.
Power looms have been installed for manufacturing cloth in jails. Convicted
inmates learn various trade skills in the Jail Factories at various Central
Jails. These programmes have not only resulted in learning a trade but also
provided monetary gains to jail inmates. The Social Justice &
Empowerment Department of Rajasthan Government provides assistance to
released offenders for their post-release rehabilitation.

Wages are paid to inmates for the work against labour done in jail
factories. Training in simple trades As the object of vocational training to
the inmates is their reformation and rehabilitation, training in simple
industrial trades like wireman, fitter, carpenter, diesel mechanic, cutting &
sewing are conducted and inmates are given certificates by ITI to enable
them to seek employment after release. Vocational Training Apart from
Industrial Training, the inmates are given training in the following simple
trades also by the Government as well as NGOs for their rehabilitation:

(1) Making durries & niwar;


(2) Stitching & dyeing cloth;
(3) Carpentry;
(4) Iron-smithy & Desert Coolers;
(5) Iron furniture; and

(6) Hosiery cloth manufacturing.

All eight Central Jails and District Jail Alwar have Jail Factories
where training and employment is being given to approximately 5000
convicts at any given time. The department aims at employing all the
convicts in the Jail factories. These factories activities not only provide
financial support to inmates but also act as a training and rehabilitation
institution and help the administration in maintaining peace in the Jail.

415
The various works being undertaken in different sections of the Jail Factory
are:-

7.8.2 Weaving Section

This section manufacture cloth (White), carpets, convicts Chaddar,


Woollen Chaddar, Fine Chaddar, Dasuti Cloth/Khesla, Handloom durries,
and Dusters. Installation of new power-loom machines has not only
augmented the production capacity of the section, but has also created a
training ground for convicts working on these machines. Apart from
meeting internal requirements of the Jail, the department has been
privileged to secure orders from various departments of the Government of
Rajasthan and from the private sector. Hosiery cloth for making vests is
also manufactured in powerlooms of jail factories.

7.8.2 Carpentry Section

This section is instrumental in supply of Desks/Tables & Chairs to


various schools and other governmental offices in the state of Rajasthan and
public at large.

Ironsmithy

This section manufacture & supply desert coolers, steel Almeria,


steel racks and iron furniture to various schools and other governmental
offices in the state of Rajasthan and public at large. Goods worth 1.06 Cr.
were produced in the jail factory during year 2013-14.

7.8.3 Sports and Recreational Facilities

Researcher was informed that In all the prisons, facilities of games &
sports like volleyball, kho-kho, kabbaddi, chess, carom etc. for inmates
have been created. Prisoner's participation in games and sports activities
within the prisons took a big jump with periodical organization of inter-
prison competitions. Intra prison cultural meets at Central Prisons are held

416
during every year in which competitions in music, dance, sher-o-shairi,
quawwali, painting, quiz etc. are organized for prisoners. Eminent public
personalities are invited on these occasions to encourage the prisoners to
take part in the sports and cultural events, to foster their physical, mental
and cultural development and inculcate discipline.

Various newspapers, books and magazines are provided to inmates


for their knowledge gain. TV, radio-sets, cassette players are also provided
for their entertainment. Competitions in debate, singing, dance & drama,
sports & games, etc are regularly organized at district and state level.

All Religious and National festivals are celebrated by one and all
inside the prisons. On Republic Day and Independence Day National Flag
is hoisted at all prisons. All religious festivals like Holi, Diwali, Id,
Guruparv, X-mas etc. are celebrated by one and all. On Raksha-Bandhan
Day sisters are allowed to meet their prisoner brothers to tie Rakhies.
Similarly, on occasion of Id lady members of prisoners’ family are allowed
to meet them.

7.8.4 Yoga and Meditation

Researcher noticed remarkable activities in prison for example


cleansing and disciplining mind, Yoga and meditation classes are run with
the help of various voluntary organizations. Staff members are also
encouraged to attend meditation courses. Organizations like Brahma
Kumari Ishwariya Vishvavidyalaya, Divya Jyoti Jagriti Sansthan, Sahaj
Yoga Kendra, Art of Living, etc have been imparting moral education,
counseling and techniques of meditation to the prisoners. This has helped
many prisoners in changing the whole approach to life.

7.8.5 Prisoners Welfare Programme

Prison officers cater to the welfare of the prisoners. Women prisoners


can keep their children up to the age of 4 years with them in prisons.

417
Crèches have been established in prisons for benefit of children of women
inmates. Yoga and Meditation classes are conducted regularly by various
non-governmental organizations. Films of moral and educative value are
also shown. Radio and TV Sets have been provided in blocks for the
entertainment of prisoners. Music and games are also provided for the
recreation of the Prisoners.

7.8.6 Parole

Researcher was further informed that Parole is granted to the eligible


convicted prisoners for encouraging in them the spirit of discipline and
good conduct. Parole is granted to the convicts who have completed one
fourth of their substantive sentence including remission. There is no
restriction on a convict about the number of times he can apply for parole.
Emergent parole is generally granted on the grounds of critical sickness,
death, marriage of blood relations mentioned in the rules, property
destruction any other sufficient reasons. Regular parole is granted by the
District Parole Advisory Committee. Emergent parole up to seven days is
granted by the Superintendent of Prison while emergent parole of up to 15
days is granted by the District Magistrate and DG&IG Prisons. The period
of regular parole is counted towards the total sentence of a prisoner. A
provision of 45 days parole has been made by the state government for
pregnant woman convict at the time of child delivery.

7.8.7 Premature release of prisoners

The purpose of releasing prisoners prematurely is to give them


chance for rehabilitation in the society. It is given to the prisoners those
who have behaved exceedingly well during the period of sentence and have
served sufficient deterrent period of their sentence. There is provision of
premature release from prison for those convicts who bear exemplary good

418
conduct. Advisory Boards have been constituted under Rajasthan Prisoners
(Shortening of Sentences) Rules, 2006 to make recommendation to the state
government for premature release of eligible prisoners. After considering
the recommendations of Advisory Boards, the State Government decides to
release or not to release the prisoners prematurely.

7.8.8 Periodical Review of cases of under Trial Prisoners

According to jail staff A committee under chairmanship of Chief


Judicial Magistrate has been constituted in every district of the state for
periodically reviewing the case of undertrial prisoners. The committee
meets every month to review cases of prisoners who are in jail over a long
period and suggest measures for timely disposal of their cases.

7.8.9 System of meeting

Each prisoner is allowed to hold periodical interviews with his


relations/friends. An undertrial prisoner is allowed weekly interviews while
a convicted prisoner is allowed fortnightly interviews. The interviews are
permitted in the "Interview Gallery" of a prison. The duration of each
interview is 45 minutes. Each prisoner is normally permitted three visitors
per interview. During the interview, a prisoner is allowed to receive non-
prohibited edibles and clothes. In addition, prisoners are entitled for
interviews with legal advisor on working days.

Facilities

Jail canteens have been started at all central and district jails with a
limit of Rs.1400 per month purchases of goods from their deposits
Telephone/P.C.O. facilities is available for prisoner at central jail jaipur,
ajmer, and women reformatory jaipur. work-order has been placed to
established. This facility at central jail kota, bharatpur, udaipur, bilakner and
sri ganganagar.

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7.8.10 Visitors to Prison

There is a Board of visitors comprising official and non official


visitors for each Prison. While, non-official visitors are appointed by the
state government, the official visitors are as mentioned in Rajasthan Prison
Manual. The visitors can visit the prison periodically and see that the
prisoners are treated in accordance with the rules and their security is
ensured.

7.8.11 Ventilation of grievances

Any prisoner or citizen can make verbal/written complaints to the


Officer-in-charge of Prison and immediate remedial steps are taken. The
prisoners can ventilate their grievances through the sealed complaint Boxes
which are kept in conspicuous places with easy accessibility to prisoners.
These complaint boxes are opened by the District Sessions Judge and
appropriate action taken on the complaints deposited by the prisoners.
Separate complaint boxes are also provided by Prison Authorities to receive
complaints from prisoners and public at large.

Prison Superintendent, Deputy Superintendent and other senior


officers have frequent meetings with the prisoners where prisoner
grievances are listened carefully and solutions provided.

Grievance Redressal Cell has been established at Prison


Headquarters. Complaints regarding dissatisfaction with prison
administration can also be addressed to DG, Addl DG and DIG Prisons.
Addl. Director General of Prisons is also the Chief Vigilance Officer of the
department.

7.8.12 Prisoners’ Welfare Fund

Prisoners’ Welfare Fund has been constituted for welfare and benefit
of prisoners. It is used for remitting examination fee of prisoners, buying

420
text books, stationery, sports articles, organizing sports & cultural
programmes and meditation camps and celebrating festivals in prisons and
to provide spectacles for reading to prisoners on medical advice.

7.8.13 Prison Band

Prisoners’ Band groups have been formed at Central Prison Jaipur,


Jodhpur, Udaipur, Ajmer, Bikaner and Kota. Prisoners are given training in
playing band instruments. These bands are sent on private functions against
fixed charges. Half of the income generated by prisoners’ band is
distributed to the prisoners working in band and the other half is spent on
maintenance of the band.

7.8.14 Treatment of Women Prisoners

There are two separate Women Reformatories in the state at Jaipur


and Jodhpur which are exclusively administered by women staff. Woman
prisoners are provided with all facilities that are available to male prisoners.
They are also given training in vocational trades. Women Prisoners’
children of age up to 4 years are admitted. Nursery & crèche have been
established in Women Reformatories.

Diet

Researcher was informed that Nutritious food prepared under


hygienic conditions is supplied to the prisoners as per the scale prescribed
in Rajasthan Prisons Rules. Items like milk, bread, egg etc, are given to the
prisoners as medical diet to the sick prisoners on the recommendation of the
Prison Medical officer. Stainless steel plates, bowls and mugs are provided
to prisoners for their personal use. Stainless Steel cooking vessels are used
in prisons to cook food. Food from outside is not permitted. Special diet is
also given to prisoners four times in a year on festive occasions.

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7.9 A REPORT ON BEST PRISON PRACTICES INDIA REPORT
ON THE NATIONAL CONSULTATION ON PRISON
REFORM - HUMAN RIGHTS

Use of Technology in Prisons

CCTVs have been installed for maintaining security and prison


management in Tihar, Delhi ,Tamil Nadu prisons.

Health and Medical Facilities

Drug de-addiction Centre – Delhi is a good example; hospital for


women and men with HIV – West Bengal; Intake Screening Examination –
Tamil Nadu.

 Educational and Vocational Training

Introducing the following educational and vocational training courses:

 IGNOU;

 National Open School;

 Computer Centre;

 Engineering, MBA, DCA;

 Carpentry;

 Bakery;

 Pottery;

 Shoe-making;

 Sculpture making;

 Soap and phenyl making.

Delhi Prisons Act, 2000

The Act is based on the principle of preserving the “right to life” and
that prisoners still have all of their rights, except those taken away by virtue
of incarceration.

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The Act thus mandates:

 Safe and secure custody of prison inmates;

 Reformation and Rehabilitation of inmates;

 Basic minimum facilities to inmates to maintain their human


dignity.

Mr. Gupta explained that the Act primarily aimed at the reformation
and rehabilitation. It also provides for Welfare Officer. There was not such
provision earlier and the post of the Welfare Officer did not exist under the
Prisons Act 1894. As per the Act, healthcare for the prisoners starts at the
moment of the admission or entry. This has the advantage of discovering
the health problems proactively and making preventive care much easier.

Women and Women with Children in Prisons or Children in Prisons

According to Dr. Sarita Sarangi, Member, Delhi Commission for


Protection of Child Rights, stated that a person in prison does not lose his
identity and selfhood on account of being locked up in a prison, and is
therefore entitled to all the human rights within the context of
imprisonment. There is not any justification in aggravating the suffering
already inherent in the process of the incarceration. The aim should be of
prisoner rehabilitation in the light of the Supreme Court ruling – in the case
The Upadhyay judgment contained the specific guidelines, based on the
various committee recommendations, about how children should be cared
for in prisons. Quoting the National Crime Record Bureau data, she said
that the women constitute 4.1%, as compared to 2.6% in year 1980, of
India’s total prison population (NCRB, 2007). There are, however, only 12
states that have prisons exclusively for the women prisoners. There is a
need for the separate prisons for women prisoners. Likewise, the undertrials
should be kept apart from the convicts; adolescents from hardened
criminals; first time offenders from the habitual offenders. For women,

423
there should also be an effort to separate the prostitutes and procuresses
from others. BPRD’s Model Prison Manual has many provisions relating to
women, but few of them have been adopted. Many of the historical rules,
on women, have to do with their role in the society and the family and these
needs to be thoroughly examined. Women tend to feel the impact of being
imprisoned, that much more acutely than men do. This is, in part, because
of the greater stigma attached to women in prisons and, in part, because of
the lack of the social support and the psychological stress of being
separated from the family and children. Prisons can cause the major damage
and disruption to the lives of the vulnerable women and their families. Most
of them are in prison for non violent offences and pose no risk to the public.
Therefore, the consideration should be given to the development and
implementation of non-custodial strategies for the women, particularly
during pregnancy, or when they have young children. There needs to be an
emphasis on the non custodial solutions, especially on the probations.

Gender-sensitive legislative frameworks, the penal policies and


prison rules are necessary to ensure that the needs of women in the prisons
are addressed in a systematic and sustainable way. Prisons need to be about
the corrections, the reformation and rehabilitation, she stated. The only
lasting solution includes the involvement of the NGOs and the civil society
organizations. Women face a lot of difficulties in the prisons − from bad
infrastructure to overcrowding as well. Jails are teeming with the prisoners.
Taking an example, over two hundred prisoners have been accommodated
where there is capacity of only hundred. Basic facilities like electricity, or
fans in rooms, or clean bathrooms and toilets − have not been provided.
Kota jail has no any bathroom. There are no proper medical facilities for
women and there are no gynecologists. 60-70% of women need counseling
but there are no counselors.

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Further, all kinds of the convicts are kept together. Women, in the tribal
areas, face even a greater discrimination. They are usually implicated on the
false charges. At the times, the police take women family members into
custody when male culprits are missing. Families, of women prisoners,
have to travel a long distance as they are kept in far away the cells; in some
jails men and women are kept together like in Chhattisgarh, since there are
no separate prisons for women. There is only one open air prison for the
women prisoners in Pune.

Children, of the women prisoners, and juveniles, in conflict with the law,
are often mistreated in the prisons. In Punjab, children, of the prisoners, get
less than two spoons of the milk powder a day. There are no nurseries or
playgrounds for children in the prisons. Children, of prisoners, are allowed
to visit their parents in the prison but there are no facilities for them.

7.10 IMPROVING THE PRISONERS AND PRISON SYSTEM i.e.


REFORMATIONS

Mr. Colin Gonsalves, Senior Advocate and Founder Director, HRLN


article from Human Rights Law Network (HRLN) observed that prisoners’
rights are in a perilous phase because the Government has adopted a largely
uncaring position over last decade. It seems that no one in the Judiciary
cares about prisoners any more. Most judges feel that the prisoners are
subhuman people who deserve to be imprisoned.

In Jharkhand, the Government was going to release 7 lakh tribal,


most of whom had been arrested for the petty crimes like those of stealing
wood from a forest. If 7 lakh people have been arrested for only the petty
crimes in Jharkhand alone, there must be millions of people in a similar
situation across the country as well.

Law Minister Moily recently have announced a scheme to release a


large number of under trials, but no one has seen it happen yet. No one

425
knows how it would happen, or if it will ever happen at all. Some people
have argued that the poor people want to be in prison, that in prison they
would at least get food and shelter. Even if in the rare cases, where it found
to be true, it shows what is wrong with our society today, he remarked.

Mr. Gonsalves, speaking on the role of the Judiciary in improving


the conditions of prisons and the prisoners in India, spoke about some of the
landmark judgments of High Courts and Supreme Court where the courts
have upheld and protected the rights of prisoners.

7.11 REFORMATION AND REHABILITATIONS

Mr. Johnson Edayaranmula ibid, the Director, ADIC Alcohol & Drug
Information Centre (ADIC)-India India, said that the reformation and
rehabilitation are, perhaps, the most successful harm-reduction strategies.
By rehabilitating one person means we can prevent another 25 people from
choosing the path of crime. In the correctional administration scenario, the
reformation and rehabilitation is of the utmost importance, he said.
However, in the present day context, “rehabilitation is a no man’s agenda”.
Mr. Edayaranmula, talking about the attitude of the prison authorities
towards rehabilitation, stated that each entity in the prison process has its
own reasons for discarding the rehabilitation. The police are more
concerned with enforcing law and order; the judiciary with guilt and
evidence; the policy makers with putting anti socials behind bars; the
society with wanting protection from criminals; the prison staff with
wanting more funds; the social workers with the exasperation that comes
with failure; and the prisoner with the whole process of reform and
rehabilitation that is, contrary to its declared intentions in the matter, geared
towards making him feel like an outcast. Mr. Edayaranmula had described
his AIDC India experience where a single study, among 284 under trial
prisoners in a Trivandarum sub-jail, took a long time and numerous
permissions. Given the difficulty in obtaining the permission for a single

426
study in one sub-jail, it is not surprising that not much is known about
India’s prison system, he surmised.

The ADIC, as a project, started in the year 1990 when it was decided
to work towards the rehabilitation of a high-risk population as part of its
substance abuse strategy. They approached the prison authorities and, after
the consistent efforts, the Government of Kerala approved the ADIC request
to start a small center within a prison. As a result,

 A separate independent cell was allocated within the prison;

 Complete furniture was supplied from the prisons department


manufactory;

 Participation of the Social Welfare and Health Departments;

 Mobilization of the services of doctors, social workers counselors


and yoga therapists;

 Began with free medicines from pharmaceutical firms and samples


from doctors, but later got a direct supply from the Health
Department;

 Organized orientation program for prison staff and authorities;

 Established ‘Navjyoti Counseling and De-addiction Centre’ – the


first ever prison centre of its kind in India.

7.12 SOCIETAL PARTICIPATION IN REFORMATION

As a part of community participation in the reformation and social


integration of the prisoners after their release, a large number of the
respectable members of non-Governmental organizations, Retired Major
General, Professors of I.I.T Delhi, the Eminent Psychiatrist, Psychologist,
Principals and Teachers of the various educational institutions have been
conducting various activities in the Prisons. These NGOs have had very

427
sobering and positive impact on the psyche of the prisoners, who have been
shown the positive and the constructive approach to life after the interaction
with them. NGOs participation is mainly concentrated in the field of the
education, vocation and counseling for the Prisoners. Apart from the formal
education with the NGO support, the classes in the various languages like
Urdu, Punjabi, German, French etc. are also held in the prisons. Some of
the NGOs have trained the selected prisoners on various trades and have
been bringing a job for them against payment of remuneration. These
prisoners are also rehabilitated and reformed by them after their release
from the prisons.

***

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Chapter - 8

CONCLUSION
AND
SUGGESTIONS
CHAPTER -8
CONCLUSION AND SUGGESTIONS

8.1 INTRODUCTION

This chapter presents the gist of the entire research conducted by the
researcher. It present the summary of the study in the form of conclusion as
well as suggestions or recommendations from the point of view of
researcher which can be helpful for the future references on the issues
related to prison system. Researcher has studied and tried to answer all the
questions related to prison system, its problems and ways to reform this
system.

8.2 REVIEW OF ENTIRE STUDY

The rehabilitation of the prisoner and reformation of prison system


is the matter of national as well as international concern. In India Earlier as
far as prison is considered during ancient period Brahaspati laid great
stress on imprisonment of convicts in closed prisons. Manu was against
this system. Various punishment included were branding, hanging
mutilation, and death and the imprisonment as a kind of punishment was
least choice of the rulers. Kautilya advocated for release of some prisoners
every fifth day, who would pay some money as floe or accept some other
form of punishment or promise to work for social upliftment. The object
of punishment during Hindu and Mughal period in India was to deter
offenders from repeating offences. During the Mughal period in India the
punishment was given mostly as a retribution or deterrence. The only
redeeming feature of the prisoners was that the orders for their release
were issued on special occasions. The prison system as it operates

429
presently in our country is a legacy of the British rule. Their Entire aim
was to make imprisonment as “a threat to culprits”. They never tried to
improve the conditions of prisons consequently; living conditions in jails
became pathetic, though the jails were built on British model. The Prisons
Act of 1894, empowered the then existing provinces to lay down their own
prison rules for the overall prison administration. The act tried to secure
uniformity in treatment of prisoners. Further The Constitution of India
entrusted subject of the prison tothe state which meant that only states can
make the laws related to prison institutions.

It is important here to discuss the efforts of government of India


towards reforming the prison system, notable in this regard is appointment
of jail reforms committee in year 1980 under chairmanship of Hon’ble Mr.
justice A.N Mulla which submitted its report in year 1983.The committee
suggested that the dichotomy of prison administration at union and state
level should be crushed and alsostressed upon segregation of prisoners on
the basis of sex age etc.again in year 1987 the Government of India
appointed the Justice Krishna Iyer Committee to undertake a study on the
situation of women prisoners in India. It has recommended the inductions
of more women in the police force with a view to deal with female and
juveniles delinquents.

After continuous intervention of Hon’ble Supreme court in the


matters of jail tortures and its guidelines towards prisonreforms a
committee was set up in the Bureau of Police Research and Development
which drafted a jail manual in year 2003 and same was accepted by central
government and circulated to state governments .In pursuance of such
orders some states like Rajasthan, Orissa, Karnataka etc.have made their
own prison manuals. Various guidelines related to prisoners like their
safety and security, medical needs, cleanliness and hygiene, recreational
activities, education and vocational trainings and rules related to prison

430
staff in the conduct of their duties have been mentioned in the prison
manuals. Due to awareness among the central and state governments now
prison reforms are visible in India. Through various techniques like using
the new strategy of Public Interest Litigation and judicial activism, the
Supreme Court of India had given expansive interpretation to the prisoners
rights in the light of articles 14,19 20,21 ,22 and 39-A of Indian
constitution which included right against handcuffing, right to speedy
trial, right to get compensation for illegal arrest, right against double
jeopardy, right against self incrimination ,right to produce before
magistrate, right to consult legal expert, right to get free legal aid etc.All
these concerned issues were discussed in detail through various case laws
and statues in the preceding chapters of this thesis.

Besides the reformative measures taken by the government the


condition of prisoners in India is far from satisfaction. The Researcher has
discussed many Declarations, Covenants and Legislations which have
been imitated and entered into the National and International levels for the
effective promotion and protection of prisoners Rights. Whatever has
happened in India for the protection of fundamental rights of prisoners and
humanizing the prison atmosphere is the direct outcome of development
taking place at international level.

The researcher has discussed various prison systems of the world


including prison systems of America, united kingdom ,Russia, china
,south Africa, France, Nigeria, Afganistan,.the features worth mentioning
here are due process of America which is considered as backbone of article
21 of the Indian constitution, There is a unique feature of prison
administration in U.S which provides a channel for submitting any
grievance relating to prison conditions which is properly handled and
complied by U.S department of bureau of prison. The unitary feature of
United Kingdom prison is that there is no provision of corporal

431
punishment except in some exceptional cases. Prisoners who follow rules
can earn privileges. This is called the ‘Incentives and Earned Privileges
Scheme’. Health care concern of inmates is major concern of prison
authorities there. French prison system gives emphasis upon categorisation
of detention centres, also more care towards sensitive inmates, advanced
educational and training programmes are noticeable. As far as South
African prison system is concerned the prisons law was amended in 1993
when solitary confinement and punishment on a spare diet were abolished,
as was corporal punishment for prisoners. South African prison system has
improved a lot still problem of overcrowding, Corruption, custodial
tortures, rape, sodomy in prison is still challenges before government.

In this series The Nigerian Prisons Service deserves commendation


for its education programmes which can be concluded by the fact that
many prisoners have completed post graduate courses and some are even
pursuing Ph.D degree. talking about Russian prison reforms A
psychological service has been set up there with sufficient staff, and
practice of sending persons convicted of minor offences or those of
medium gravity to settlement-colonies, which in Russia constitute the
prototype for the ‘open prisons’ that exist in many West European
countries. In china Prisonerswho have not been stripped of their political
rights have the right to vote according to law. A prisoner may have his
sentence reduced for good behaviour or be released on parole according
to law.The Chinese Government attaches great importance to the
protection of the civil rights of former convicts when they return to society
after serving a sentence. Afghan prison system is gaining reformation
momentum after years of violence and inhuman treatments in past.
Afghanistan has ratified all the conventions related to human rights. Many
nations including India are contributing to construct new prisons
throughout the nation.

432
8.3 PRISON REFORMS: THE CONCLUSIONS

Researcher during the entire research has tried to mention the ways
which can improve the prison environment and rehabilitate prisoners into
society. Researcher has discussed many prison reformative techniques
through judiciary, legislations, and community involvement in the entire
thesis. these techniques or ways really help in the reformation of
prisoners,Noticeable among them can be concluded below.

1. Sympathetic behaviour of jail inspecting judges:The judges,


especially the jail inspecting judges should not be oblivious to the
strict positivist approach to law that the prisoner is liable to only that
punishment, which is legally sanctified they should behave
sympathetically towards them as they are already distressed.

2. Probation: It is a very significant tool of reformatory penology


which is basically a period during which the convict ordered to
undergo sentence, remains, instead of being in prison, under
supervision. It is a treatment device, developed as a non- custodial
alternative which is used by the criminal courts after guilt of an
accused is established and the court considers that imposing a prison
sentence would do no good, since imprisonment damages scope for
the convict to readjust in the normal society after the release and his
association with professional criminals in jail often has undesired
effects.. Such a suspension of sentence during probation serves the
dual purpose of deterrence for the convict (by acting as a threat of
his being subjected to unexhausted sentence) and of reformation (by
providing necessary help and guidance to the probationer in his
rehabilitation).

3. Parole: The ultimate significance of parole is that while retaining


effective control over him, it enables the prisoner a free life. Under

433
the scheme, every prisoner is carefully studied and the one who
shows potential for correction and responds favourably to the
disciplined life inside the prison, is allowed considerable liberty and
finally released to join the society conditionally. It is considered as
most important tool as reformation in almost all nations of world.

4. Furlough:it is a matter of right while parole is not, Furlough must


be granted to the prisoner periodically irrespective of any particular
reason. Since the object behind this tool is merely to enable him to
retain family and social ties and avoid negative effects of a
continuous prison life. The period of furlough is treated as remission
of sentence.

5. Suspension commutation and remission:While considering the


premature release of a life convict, the authorities are required to
consider his case mainly taking into consideration the questions as to
whether the offence was an individual act of crime with no affect on
the society at large, as to whether there was any possibility of a
future recurrence where the convict commits a crime; as to whether
the convict had lost his potential to commit crime: as to whether any
fruitful purpose would be achieved by confining the convict any
further; as to whether the socio-economic condition of the convicts
family call for such a premature release and other similar facets.

6. Pardon: as a mode of mitigating the sentence of the criminal has


always been a controversial issue since long. Proponents of power to
pardon in the penal system argue that it substantially helps in saving
an innocent person from being punished due to miscarriage of justice
or doubtful conviction.. Despite all its shortcomings, the great moral
advantage of pardoning power of the executive lies in the fact that it
is always referable to grant liberty to a guilty offender rather than
sentencing an innocent person.

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7. Open prisons: also named as open air camps, open jails or parole-
camps (being a sort of expanded form of parole), are another such
significant tool of criminal reformation, Open air-institutions are
essentially a 21st century device for rehabilitating offenders to
normal life in the society through an intensive after-care programme.

8. Self governance by inmates:Under the system of self-government


in prisons, the inmates elect some of their fellow prisoners as their
representatives and the entire prison management is run by that
elected body of prisoners, who exercise complete or at least partial
control over mess and are expected to take care of the interests and
welfare of their fellow prisoners.

9. WorkRelease:In this method, the prisoner is allowed to work for


pay in the society for part time basis. This gives him an opportunity
to mix up with the society in a normal manner without any
limitations. The control of the prison authorities in, however not
completely taken away since he has to work within the permitted
parameters and during non-working hours, he has to return the
concerned correctional institution.

10. Vipassana :It is a practical experiential way of understanding the


mind-matter phenomenon and purifying one’s mind of underlying
negativities. . It equips one with the inner strength to face the
challenges of life in a calm, balanced manner, and gain mastery over
one’s mind.

11. After care programmes:During last about 2-3 months of the


awarded term of sentence, the prisoner should be placed under an
intensive after-care system, which systematically designed
individualized process will offer him adequate opportunities to
overcome his inferiority complex and guilt. In India, certain social

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institutions such as seva sadans, nari niketans and Reformation
Homes are at work in different places, involved in the task of after-
care and rehabilitation of criminals.

12. Role played by judiciary:The Indian judiciary has adopted new


approaches, developed new tools and invented new remedies to deal
with increasing challenges to violation of human rights of prisoners.
Over the last thirty years the Supreme Court has been rendering a
signal service to the authorities dealing with prison system by
upholding their Human Rights in the context of continuing
International concern for their Human Rights. The court has
protected the personal liberty against arbitrary invasion by the state.

13. Education and vocational trainings:The continuing education of


prisoners is yet another tool, that keeps them occupied and also
would help their rehabilitation after release from jail. There should
be greater emphasis on vocational training of inmates, which will
provide them honourable means to earn their livelihood after release
from jail. The facilities of lessons through correspondence courses
should be extended liberally to the inmates, who are desirous of
taking up advanced studies.

14. Yoga and meditation: It is strongly believed that the practice of


yoga and meditation can enable the prisoners to control their mind,
which is prone to aggression bouts owing to their basic
temperament and prison life. This is indeed a new approach to the
problematic of crime and criminal in the Indian setting. Regular
practice of yoga not only keeps the human body healthy and strong,
but also bends the negative temperament to positive one, thereby
taking the criminal away from criminogenic tendencies.

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8.4 OBSERVATIONS NOTICED BY RESEARCHER
DURING VISITS TO PRISONS

1. Most of the jails do not have sufficient capacity to accommodate


prisoners. There was Lack of separate provision for women jails at
many places, there are only separate enclosures for women.

2. The majority of prisoners and detenues were undertrials .they


languish in jails for petty offences for which sentences would have
been far less even if they had been convicted.

3. There was lack of holding regular lok adalts in the prisons which
are essential for disposal of petty offences for undertrials.

4. General conditions of hygiene and food are not satisfactorily and


needs improvement although in some jails attention is being paid by
authorities in this regard.

5. In some jails there was lack of proper medical facilities. Also there
was shortage of female doctors or practitioners for women
prisoners.

6. There was lack of proper counseling centres for prisoners. There is


urgent need of establishing such centres because there are many
categories of prisoners like youth offenders, mentally sick prisoners
who needs special attention.

7. The process of applying bails through jail is very typical in some


prisons. There is need of simplifying these processes.

8. In many prisons N.G.Os along with prison authorities are working


for reformation and rehabilitation. Such participation of N.G.Os
must be encouraged at other prisons also .

9. Many prisoners are behind the bars due to lack of legal aid or legal
awareness. There is need of establishing proper legal aid centres in
every prison.

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10. There was no proper curriculum for education in many prisons due
to which there was lack of job opportunities for prisoners after
their release.

11. Special treatments to some prisoners were given in obedience to


court orders. Such prisoners were either politicians or officers.

12. Many prisoners were afraid of their future because of stigma of


remaining in jails. There is need of proper counseling for them for
keeping their moral high.

13. Some prisoners complained of brutal treatment in lock-ups. There


is need of regular and proper vigilance and supervision by
magistrates for checking such abuse.

14. There were few prisoners who were unable to tell researcher about
grounds of their arrest. There should be proper facility by
authorities to tell the prisoners regarding their crime.

Researcher found difficulty in conducting the visits as jail


authorities showed very less interest in providing the permission.
At many prisons such visits were denied due to complex
procedures of giving permissions.

8.5 GENERAL VIEW OF RESEARCHER

After direct interaction with prisoners, prison staff, advocates, NCW


members, collection of data and facts etc. and after observing condition of
prisoners at different jails during the visit of researcher, it was experienced
by him that conditions of prisons and prisoners have changed a lot in past
years. Along with the improved facilities and enhanced basic necessities
and also stress upon skill and vocational development courses which
provides basis of making prisoners self sufficient inside prison to earn for
their living after completion of their sentence.

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Many of the prisoners were under depressed situation inside the jail
due to detention and there was sense of insecurity in them for their future
after release from prison. Most of the prisoners were found to be from
economically weaker section of the society who had thinking that whether
they will get any employment to earn their livelihood outside the prison and
how they will manage for shelter and other requirements of life. These
tensions were directly affecting their behavior inside the jail.

Many of the prisoners wanted to remain in jail because they were in


dilemma that after their release they have to lead the same unprotected or
insecure life outside. so rehabilitation is major concern for such inmates, as
nobody wants to provide employment to person who was convicted of any
grievous offence.

The undertrial persons are waiting for final conclusion of trial so


they have more pain as there is lack of speedy process or fast track courts
due to which delay occurs and the families of prisoners also experience
mental agony until trial ends.

Efforts should also be made to provide more facility in all the jails to
prisoners who have behaved well in prisons up to a particular period of
detention to set up inspiration for other prisoners and improving their
behavior also.

8.6 SUGGESTIONS

The prisons are no more the institutions designed to achieve only to


deter the wrongdoers .Prisons are now the places, where the inmates are not
neglected mass of the society but they are also human beings who have to
go out in to their surroundings as well behaving as reformed persons. For a
prisoner, the imprisonment itself is a punishment and thus, prisons are
expected to be places of rehabilitation. The following suggestions are
madein order to ensure the efficacy and efficiency of prison system and

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administration under International law as well as machinery in India. If
these recommendations and others put into application it certainly
strengthen the process of reformation of prisoners at International level and
in India and would go a long way in realising the cherished goal.

(i) To check hygiene and Control the Health Problems in Prisons


Indian Prisons, being overcrowded, need to promote healthy, clean
and hygienic environment in the Prisons. Sensitization programs and
training sessions should be conducted regularly among the inmates as
well as among the Prison staff. These sensitization programs and
trainings can be given as a part of Swatch Bharat Mission, wherein
funds for such trainings and programs can be channelized under this
mission.

Other grey area of concern is Health Problem in Prisons,


among its inmates and Prison Staff. The dismal health situation in
Indian Prisons can be attributed to the lack of professional
counsellors, non-interested and ill-equipped doctors. To deal with
these issues -to control health problems in prisons- there is dire need
to fulfil basic and minimal need of humane environment in prison,
such as:

a) Proper emphasis should be laid on the maintaining the clean and


hygiene in the prison.

b) There should be appointment of permanent Physician doctor for


the prison to address any medical emergency situation in Prison.

c) There should be provision for the women doctor in the women


prison, to facilitate the proper conduct of medical examination, in
case of any medical situation.

d) There should be special provision for the treatment of life-


threatening, venereal or contiguous diseases. There should be

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provision for the appointment of special doctors, on case to case
bases, to deal with such diseases and situation.

e) First Aid should be present at all the blocks, compound and


buildings of prison. Periodic inspection should be conducted to
check the availability of essential medicines. Also, time-to-time,
training should be provided for how, when and where to use the
first aid.

(ii) To minimize Prison Population : As evident from the research,


Indian Prison system is at the brink of collapse due to colossal
problem of overcrowding and archaic design of Indian Prisons. In
addition to this, slow redressal of justice also leads to the
overcrowding of prisons with the ever increasing population of
undertrials. Thus, it becomes pertinent to minimize the prison
population, especially undertrials by:

a) Opening more Fast Track Courts – It could prove excellence in


reducing the population of undertrails in Prisons.

b) Providing Speedy Justice – Provision to provide speedy justice, in


addition to existing ones, could be provided through legislative and
administrative route by sub-categorization of offences.

c) Constituting Special Reforms Committee – Special Reforms


Committee should be constituted at both the National and District
level for coordinating the activities relating to speedy justice,
infrastructure, maintaining database of convicts and undertrials at
both the levels.

d) Fixing the Strength of Prisoners in Prison – Data should be


collected regarding the optional strength of each Prison in country
and then, accordingly, strength of each prison should be
determined. This would serve two causes:

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1. To understand the capacity of present Prison infrastructure in
country.

2. To assimilate the data regarding the future need of more prisons


in country.

(iii) Segregation of Accommodation : Provision for separate


accommodation should be there. Categorization of separate
accommodation should be based on the following parameters:

a) Nature of Trial – Heinous/ Serious/ Petty

b) Status of Prisoner – Undertrial/ Convicted; factors like Repeated


offender/Hard core criminal/History Sheeter etc. should be taken
into account.

c) Age

d) Sex

Separate accommodation should be there for the juveniles and


proper facility should be provided to the prisoners who want to pursue
education and Degree or Diploma should be given in order to
incentivize prisoners towards education. And there should be library in
each prison. There are no separate cells in the jails for the transgender.
They cannot be kept in the cells for male or in the cells for female as
because they are not male or female. So, there should be separate cell
for these categories of inmates

(iv) Abolition of solitary confinement: No Prisoner should be kept in


solitary confinement as it amounts to the violation of Human Right
and against the norm of humane treatment. For the strict
enforcement of the provision for no solitary confinement, there is
dire need to define what amounts to ‘solitary confinement’ and what
does not.

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(v) Proper security arrangements in jails : For the better
administration of Prisons, optimal use of ICT (Information,
Communication and Technology) should be there. This can be done
by installing CCTV cameras in Prison compound and in the lobby of
Jail Barracks. Especially, the Barracks of Hardcore criminals should
be monitored 24 hours, so as control and minimize the chances of
jail war or inmate fights.Prison compound should be provided with
the adequate no. of cctv cameras, proper reception center, separate
counseling room for inmates, meeting room for relatives and proper
light and water facility, at both day and night.

ICT can also be useful in proper surveillance of prison by


keeping electronic record of each person or visitor, visiting the Prison.
This will help in reducing the illegal smuggling of weapons or drugs
or other illegal things entering in the Prison, thus ensuring the security
of prison.

For proper security of prison and prisoner, each prison should


be facilitated by providing the required number of personnel with
adequate weapons. There should be proper fencing around the prison,
proper searchlight should be there and also adequate backup for
electricity should be there. Additionally, all prisons should be
provided with the fire-extinguishers at approachable distance in case
of any emergency

(vi) Improving food quality : There is dire need to improve the quality
of food which is served to the prisoners. In most of cases, food
served to the prisoners is below the standard of human consumption.
The quality of food which is served to the prisoners has
consequential effects on their behavior and reformation. It also
affects their health problems, which is one of the main problems
which Indian Prison suffers from.

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(vii) Recruiting more personnel including psychologist in jail
department : To understand the mental condition of prisoners and in
their journey towards reformation, the role of psychologist is
immense. Indian prisons have dearth of psychologist and there is
urgent need to recruit more psychologist in the Jail Department.

(viii) Futuristic job oriented courses for prisoners, especially for age
group of 18-25 years : Prisoners should be provided with the
opportunity to learn and engage themselves in such courses which
could provide them decent life after serving their prison term. For
this purpose, prisoners, especially those within the age group from
18-25 years, should be taught IT like mobile repairing, refrigerator,
T.V. repair and other similar basic courses. These courses will help in
their speedy reformation, as they will be using their energy in right
direction and they will have prospects to earn and start afresh after
their release from prison. These initiatives could be financed under
the Skill India mission.

(ix) Easy procedure for getting permission if prisoner wants to


pursue their education : State should facilitate the prisoners to
pursue education by providing easy procedure for getting permission
to study. For this purpose, the cumbersome rules and regulations for
obtaining permission to pursue study, many times, act as an
impediment. These cumbersome rules and regulations should be
relaxed and Prisoners should be motivated to pursue education.

(x) To reduce violence inside jails : To control the adrenaline rush,


many times leading to bloody jail violence, proper energy outlet
should be provided. This can be done by organizing the social and
cultural events in the jail with the participation of various religious,
non-government agencies and social groups. Programs like
practicing Yoga and Mediation can be very beneficial in reformation

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process of prisoners because these practices helps in creating
conducive environment in the Prison and among the prison inmates.

(xi) Regular visits of eminent persons to prisons : As rightly said by


someone, a man moulds himself according to the situation and the
people surrounding him. The presence of positive environment and
positive people can be detrimental in reformation process of
prisoners. Therefore, there should be regular visits in the jail by the
eminent persons from different fields such as Sports, Arts, Science,
Media and Movies, who can influence prisoners for the good and
infuse them with the positive energy. These visits by eminent
persons can bring a huge psychological change in the prison inmates
encouraging them to change themselves for the good.

(xii) Permission for Parole and probation should be libealized :


Prisoners should be incentivized with the good behaviour in form of
more chances of Parole and Probation. This can serve two causes:

a) Firstly, it will encourage prisoner to behave good, so that he will


be incentivized with more chances of parole and probation.

b) Secondly, his increase of parole and probation will be


consequential to his increased chances of engaging himself with
his family, relatives and society as a whole.

(xiii) Free legal aid for those who can’t afford-Most of the prisoners in
India are illiterate, poor and uninformed about their rights and
remedies. To cater this large population of prisoners, free legal aid
should be provided. For dispensing legal aid to this kind of
prisoners, a special cadre of lawyer should be created. This cadre
will serve in a single prison and will help to prisoners in
understanding their legal rights and remedies including the legal
procedure, about filling appeals and other legal processes.

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(xiv) Allprisons nationwide should be linked up with open
universities: With the motive to engage the energy of prisoner for
his betterment, he should be motivated to join the open universities
like IGNOU or Vardhman Mahaveer Open University in state of
rajasthan etc. For this purpose, Open Universities should be
persuaded to open their education centres in every prison and run
them on regular basis. Though some prisons in Rajasthan have
already started such centres by open universities, there is immense
need to open such centre in every prison so as to provide opportunity
to every prisoner to educate himself.

(xv) Trainings of personnel who deals with inmates : To create the


conducive and healthy environment in the jail and among the prison
inmates as well as among the jail administration, there should be
regular and periodic training of personnel of Jail administration.
Training should focus on aspects like as management, psychology,
coordination etc.

(xvi) Cultural programs to be conducted regularly : Cultural programs


should be conducted on the regular basis. Such cultural programs
should provide some morals and learning and special care should be
taken to engage maximum participation of prisoners.

(xvii) Celebration of festival inside prisons : Jail administration should


ensure that all the festivals are celebrated uniformly. Festivals like
Independence Day, Holi, Ramzan, Christmas, Eid, Rakhi etc. create
the feeling of brotherhood among the prisoners. But due care must
be taken by jail administration against the miscreants who might try
to create scuffle in such environment of celebration.

(xviii) Exhibition of Movies –patriotic and educational : There should be


provision for weekly or monthly screening of movies in the prison
premises. Movies screened should be educational, patriotic and

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documentary or any other, which gives some message. Movies can
be a good medium for igniting the passion among the prisoners for
reformation.

(xvix) Daily routine plan for prisoners : In order to create discipline and
change in the life of prisoner, Prison officer should make daily
routine plan, in consultation with psychologist, for the prisoners.
Such plan should include routine from morning to night and should
describe the activities. This plan should be put to display outside
each prison cell.

(xx) Personal identity record of prisoners and other entrants : To


keep proper information about who is entering and when entering,
proper log table should be maintained either in manual or in electric
form.Data base of each prisoners like finger impression thumb
,impressionshould be maintained.It is also essential to maintain the
personal identity of entrants, finger impression or thumb impression
should be maintained.

(xxi) Better living facility : In prison, there should be proper provision


for clean and adequate drinking water. Also to maintain the
discipline in the jail, proper sleeping timing should be maintained
and adequate provision should be maintained to monitor such
compliance of timings and rules.

(xxii) Meditation,yoga,classes : There should be provision for the daily or


weekly meditation or yoga classes so as keep the prisoners and
prison environment healthy.

(xxiii) Computer education for prisoners : Adequate computer facility


should be provided by the jail authorities for conducting computer
teaching classes for the prisoners. This computer education classes
could help prisoners in updating with the technology and might help
them in generating income after their release from the prison.

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(xxiv)Art and Craft Teachings and exhibitions of paintings of inmates:
Prisoners could be taught art and craft in the jail. This could prove to
be a sustainable source of income for them. They can organize their
art and craft exhibition with the support of Prison administration.
And can sell there are art at such exhibitions. Income generated from
such exhibition could be used as a collective fund for the welfare of
prisoners as well for promoting their art and craft.

(xxv) Sporting event to be held once in week : To provide the channel


for outlet of energy, sporting event should be conducted at least once
in week. Such event provides the platform to the prisoners for
showing their talent. And also it creates sense of belongingness
among the fellow prisoners and motivates them to behave in better
manner.

(xxvi) Product formation by prisoners formation : Prisoners should be


provided with the platform to showcase their talent by selling their
products like pottery, weaving, sewing, art and craft. In this process,
Prisoners should be involved in product formation in the Cottage
Industry and Small Scale Industry. The products created by prisoners
could be linked up by the Jail Authority with some Industry
department or with NGOs, making an arrangement for the sharing of
proceeds from the sale of these products at the market price.
Proceeds resulting from such sale could be used for the collective
benefit of prisoners and their art and craft.

8.7 SUGGESTIONS IN NUT SHELL

After a thorough study, the researcher wants to conclude some


recommendations to make reformation of the prison system to restore
human rights of Prisoners.

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8.7.1 Incorporation of prisoners right as new fundamental right in
part III of constitution

There is requirement for the new provision in the constitution


recognizing the fundamental rights of the prisoners thoroughly. This is
because prisoners, being a part of society, need some rights to protect
themselves from the adversities. The present provisions of the constitution
dealing with the prisoner rights are not substantial and are in the abstract
form. So, there arises the need to incorporate the new provision in
constitution, incorporating the right of prisoners thoroughly.

8.7.2 New provisions especially for woman and juvenile offenders to


be added In prison Act

Women and Children, being the vulnerable section of the society,


need special protection in the jails and correctional facilities. There is need
for incorporating more provisions addressing the rights of the women and
children in the Prisons Act. Aim of such provisions should be strengthen the
position of women and children in the society.

8.7.3 New provision for holding lok adalats for petty offences

There is dire need of organising lok adalats throughout the nation by


district and state legal service authority for reducing the number of cases
pending before any trial court. For this purpose provision should be added
to the legal service authority act for disposal of petty offences,list should be
made by officers of judicial department and should be submitted to district
and state authority.

8.7.4 Inclusion of “prison”as a subject in the concurrent list

Presently prison and similar correctional institutes are subjects of


state list where each state can make laws relating thereto; due to which
uniformity has not been achieved in prison system throughout the nation.

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So there is need of placing prison as a subject in concurrent list so that
uniformity can be achieved in formulation and implementation of prison
provisions.

8.7.5 Constituting task committee for review

To minimise the prison population in India an urgent task committee


should be constituted under chairmanship of Supreme Court judge,
including other members like lawyers and social activists which will review
the prison population in the nation. Committee should have authority to
recommend liberty to those who have undergone their punishment and are
still behind the bars. It should also review the prisoners records including
their behaviour and further recommend rehabilitation for those who have
improved themselves in prison.

8.7.6 Prison reforms should be made priority in five year plans

We have seen around thirteen five year plans at national as well as at


state level but none of them have suggested for constructing or improving
the prison infrastructure and conditions. Due to insensitivity of
governments towards the prisons, they are in poor condition. This is need of
hour that building up different correctional institution should be made as an
agenda in five year plans so that lack of fund can’t create barriers in the
way of prison system improvement.

8.7.7 Pay allowance and other facility of prison officer should be


increased

The salary and other allowance and service conditions of prison


superintendent and other officers should be made parallel to top services of
state so that more youth will be attracted towards career in prison
department. Also the salary of prison staff should be increased so that
corruption in the department can be checked and work satisfaction in staff
will increase which will lead towards better prison administration

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8.7.8 Induction and refresher training for prison staff

Following the training pattern for Indian police service, a curriculum


for induction training for newly recruited prison officers and staff should be
made in such a manner that they learn the basic techniques to reform the
prisoners instead of learning cruel methods for dealing with them. Also
there should be refresher training course for officers and prison staff in
every five years. This will reenergise them with adoption of more and
advanced techniques for rehabilitation of prisoners.

8.7.9 Regular cadre of teachers for different subjects be made

The education department of state should appoint teachers of various


disciplines like mathematics,general science,English; psychology etc.on
deputation for temporary period to teach prisoners.If resources of state
allows regular recruitment can also be made for such purpose

8.7.10 Code of conduct for prisoners

There is need of drafting a code of conduct for prisoners which can


develop their faith in Indian constitution and, administrative, executive,
legislative, and judiciary system. The code should contain the subjects that
they will maintain peace, will not damage public property, and they will not
keep any weapon inside the prison. This will serve the purpose of
disciplining the prisoners.

8.7.11 Need of prison commission

On the verge of national human right commission, national women


commission, national minority commission, national SC and ST
commission, there is need of permanent prison commission in India which
should headed by a retired supreme court or high court judge. The
commission will look after the problems and other issues related to prison
system and will take care of socio legal problem of prison system and
prisoners and should monitor prison rehabilitation schemes.

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8.7.12 Educated prisoners be registered with employment offices of
state
State should draft a rehabilitation program for prisoners in
systematic manner .firstly it should develop a curriculum for different job
oriented courses for prisoners and after completion of that they should be
registered with employment exchange department of state which can make
arrangements for prisoners in getting the employment after release.
8.7.13 Prison reforms should be added as Directive principle
Directive principles were enumerated in the constitution as
guidelines to state for welfare of its people and society. Prison reform as a
important subject is still missing in these guidelines. There is urgent need of
inserting this subject in the directive principles of state policy.
8.7.14 Amendment in penal provisions
Punishments in an alternative to prison sentences need to be legally
sanctified. The clause 18 of the Indian Penal Code (Amendment) Bill, 1979,
proposed to provide alternative punishments to prison sentence such as
community service, disqualification from holding office, order of payment
of compensation and public censure, but the Bill lapsed. Bringing this bill
again and its implementation will serve the purpose of prison reformation in
reality.
8.7.15 Prison policy for old ages prisoners
On the humanitarian grounds a policy should be drafted for old ages
prisoners so that sympathetic decisions like premature release or alternative
punishment like community services can be allowed to them. It will serve
the purposes of reducing the overcrowding in prisons. There are fewer
chances of re-entry of old age prisoners into crime, so it is safe to develop
such policy for them.
8.7.16 Need to check media trial of arrested person
Whenever a person is arrested or sometimes even name of any
suspected person appears during investigation or inquiry, Just to attract the

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viewers and increase their TRP rates media(both electronic and print) starts
its live trial on television in that case even the layman who are unaware
about any legal procedures and law starts making opinion about any issue .
Many times before conclusion of trial by court media establishes that who
is guilty and what is to be done with such accused. Surprisingly the opinion
poll is conducted, whether somebody is to be imprisoned or not, should be
hanged or not. Not only this when final judgement are delivered by court
media starts discussing its sanctity. Such practices mislead the public at
large and create undue influence and pressure on advocates, judiciary and
police personnel. So there is need to make any policy to check this ‘media
trial’.
8.7.17 Role of NGOs and Human Rights Activists, law students,
teachers
NGOs and Human Rights Activists can contribute for speedy and
effective trial by providing free legal advice and aid with the help of
competent senior advocates and in matter of policy decision, Public Interest
Litigation can be utilized as an ultimate device. The offenders for petty
offences can be released by intervention of NGOs and Human Rights
Activists. A legal aid scheme should be planned out in which the accused
can be released for such offences at the first instance from the court directly
and the admission to the prisons can be reduced which may help to reduce
overcrowding. Legal Awareness Seminars,
8.7.18 Suggestions for relatives and family members of victims and
accused
In many cases it is observed that certain crimes are done by
temporary greed, lust or anger by accused. It becomes the duties of family
members, friends and relatives to rescue the accused with utmost sympathy
and cordial efforts as if a patient is treated. The sense of hatred should not
be created for such victims otherwise the victim would feel guilty-
conscious, sense of inferiority complex and may turn out to be a hard-core
criminal. Since the day of arrest during remand, police custody, judicial

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custody, trial and even conviction or the acquittal as the case may be, the
approach of relatives and family members should be generous, objective
and positive, which may be prove to be useful for correcting him and
transforming him to be a good citizen even after conviction and completion
of imprisonment is to be rehabilitated in the society.
8.7.19 Suggestions for the society
Sometimes wrong interpretations made by media and press leads the
society towards misconception regarding any issue and cause multiple
problems for accused and his family. It becomes typical for them to live in
society peacefully and with dignity. Even after his acquittal the attitude of
society towards him remains same. Such image follows such persons like a
dark spot throughout his life. The scope for employment, business,
profession, vocation is always curtailed and accused is again tempted for
committing some crime to take vengeance with whole society. So it is
expected here from the society to play positive and objective roll for
rehabilitation of such people.
Problem of rehabilitation of prisoners is only a part of the larger
problem of social integration. The prison administration, alone cannot
rehabilitate the prisoners. It can only make its sincere efforts to set right the
prisoners but these efforts will succeed only if our judiciary, police system
along with our education and social institutions and values are properly
integrated into a harmonious situation. Having considered all the pros and
cons of the study, the researcher after a thorough and careful observation
has advanced the above suggestions. The researcher is confident that these
suggestions will definitely lead the prison system to an comparative
international standards and in achieving the goal and objectives of the
system.

***

454
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Infallible (OUP, 2000) 159-192, at p. 164-167

 Cited from: Aharon Barak, ‘A judge on judging: The role of a Supreme


Court in Democracy, 116 Harvard Law Review 16 (2002)

 See: Stephen Holmes, ‘Precommitment and the Paradox of Democracy’


in Douglas Greenberg et. al. (eds.), Constitutionalism and Democracy:
Transitions in the Contemporary World (Oxford University Press, 1993)
at p. 195-240

 Refer: Jurgen Habermas and William Rehg, ‘Constitutional democracy:


A paradoxical union of contradictory principles?’, Political Theory, Vol.
29, No. 6 (December 2001) at p. 766-781

 West Virginia State Board of Education v. Barnette, 319 US 624 (1943)

 Samuel Isacharoff, ‘Constitutionalising Democracy in fractured


societies’, 82 Texas Law Review 1861-1891 (2004)

472
LIST OF CASES

1. Abhubhai Fatabhai v. State of Gujarat, (DB) 2000 Cr.LR. (Guj)


207 38

2. Ajit Singh v. State, AIR 1976 SC 1855 235

3. Ajitbhai Ganpatbhai Chauhan v. State of Gujarat, 2002 Cr.LR.


(Guj) 2

4. Allana Abdulla v. State of Gujarat, 1999 (2) GLR 1514 : 1999 (1)
GLH 852236,237

5. AR Antulay v. RS Nayak, AIR 1984 SC 718 109,316,384

6. AR Antulay v. RS Nayak, AIR 1984 SC 1630 15

7. Asharfi Lai v. State of UP, AIR 1987 SC 1721 27

8. Attorney General of India v. Lachma Devi, AIR 1986 SC 467 26

9. Babu Singh v. State of UP, AIR 1978 SC 527 125

10. Bhagwan Anna Arbune v. State of Maharashtra, 1994 Cr. LJ 1477


248

11. Bhakhar Ram v. State of Rajasthan, (1991) 3 Crimes 719 (Raj) 194,
386

12. Bhavam Shankar Kripaldas v. State of Gujarat, 2000 (2) GLR 1117:
2000 (2) GLH 120239

13. Bhim Singh v. State of J & K, 1985 4 SCC 677 198

14. Bhupendra Singh v. State of MP, AIR 1981 SC 1240 197

15. Bhurabhai G B D Vadher v. State of Gujarat, (DB) 1997 Cr. LR


(Guj) 385

16. Chandirama Das v. Chairman Railway Board, 199

473
17. Charles Sobaraj v. Supdt. Central Jail Tihar, AIR 1978 SC 1514 104,
105, 162, 174, 380, 383

18. Charles Wolff v. McDonnell, (1974) 41 Law Ed 2nd 935 104,382

19. Citizens for Democracy v. State of Assam, (1995) 3 SCC 743 : AIR
1996 SC 2193 : 1996 Cr.L.J. 3247

20. Common Causes v. Union of India, (1994) 4 SCC 33 109, 125, 316,
384

21. Common Cause Society v. Union of India, AIR 1996 SC 1619


112,126, 384

22. Consumer Education and Research Center v. Union of India, (1995)


3 SCC 42

23. Dadu Tulsidas v. State of Maharashtra, 2000 SOL Case No. 573
(SC)

24. Danial H Walcott v. Superintendent, Nagpur Central Prison, 1971


Bom LR 436

25. DBM Patnaik v. State of Andhra Pradesh, AIR 1974 SC 2092 104,
107, 121, 173,382, 384

26. Delhi Administration (Now NCT of Delhi) v. Madan Lai, (2002) 6


Supreme 77230

27. Dharambir v. State of UP, AIR 1979 SC 1595 133, 215, 219, 384,
390

28. Dipakkumar BP Upadhyay v. State of Gujarat, 1998 Cr. LR. (Guj)


124 : 1998 (1) GLR 1

29. DKBasu v. State of West Bengal, AIR 1997 SC 610 148, 385

30. Ex-Sepoy Manjit Singh v. Union of India, Cri Misc Petition No.
17437 of 1994

474
31. Francis Coralie Mullin v. Delhi Administration, AIR 1981 SC 746
115, 142, 182, 384

32. George Fernandes v. State, (1964) 66 Bom LR 185 131,385

33. Gurdev Singh v. State of Himachal Pradesh, 1992 Cr LJ 2542 (HP)


221

34. Hari Singh v. Sukhbir, AIR 1988 SC 2127 197

35. Hasmukh D. Prajapati v. State of Gujarat, 1995 Cr.LR. (Guj) 273 :


1995 (1) GLR 726

36. Hussainara Khatoon (I) v. State of Bihar, AIR 1979 SC 1360


110,316, 384

37. Hussainara Khatoon (II) v. State of Bihar, AIR 1979 SC 1369


114,384

38. Hussainara Khatoon (IV) v. State of Bihar, AIR 1979 SC 1377 126

39. Hussainara Khatoon (V) v. State of Bihar, AIR 1979 SC 1819 126

40. In Re Prison Reforms Enhancement of Wages of Prisoners, AIR


1983 Kerala 261

41. Incio Manuel Miranda v. The State, 1989 Mah LJ 77 146

42. 250 Inder Singh v. State, 1978 Cr.LJ 766 (SC)

43. Jacob George v. State, (1994) 3 SCC 430

44. Jumman Khan v. State UP, (1991) 1 SCC 752

45. K Pandurangan v. SSR Velusamy, (2003) 11 ILD 306 (SC)

46. Kadra Pahadiya v. State of Bihar, AIR 1981 SC 1167

47. Kadra Pahadiya v. State of Bihar, AIR 1983 SC 939

48. Kalpesh Gunwantlal Soni v. State of Gujarat, 2000 Cr.LR. (Guj) 309
: 2000 (3) GCD 1717

475
49. Kalyan Chandra Sarkar v. Rajesh Raj an alias Pappu Yadav, AIR
2005 SC 972 : (2005) 3 SCC 284

50. Kartar Singh v. State of Haryana, AIR 1982 SC 1439 : 1982 Cr LJ


1772

51. Kehar Singh v. Union of India, AIR 1989 SC 653

52. Khagendranath, AIR 1958 Assam 188

53. Kharak Singh v. State of UP, AIR 1963 SC 1295

54. Khatri v. State of Bihar, AIR 1981 SC 928

55. Khatri v. State of Bihar, AIR 1981 SC 1068

56. Kishor Singh v. State of Rajasthan, AIR 1981 SC 625

57. Kishore Brothers Ltd. v. Employee’s State Insurance Corporation,


(1996) 2 SCC 682

58. KM Nanavati v. State of Bombay, AIR 1961 SC 112

59. Koli Jeram Bhimji v. State of Gujarat, 1998 (1) GLR 754

60. Koyabhai Bhaichandbhai v. State of Gujarat, 2001 Cr.LR (Guj) 664

61. Kuljit Singh v. Lt. Governor of Delhi, AIR 1982 SC 774

62. Kunnikkal Narayanan v. State of Kerala, AIR 1973 Ker 97

63. Latif Chhotumiya Shaikh v. State of Gujarat, 2000 (3) GLR 2362 :
2000 (3) GLH 601

64. Laxman Naskar v. State of WB, AIR 2000 SC 2762 : 2000 (7) SCC
626

65. Linder Frank Wolfgang v. Yogesh D Shah, 2002 Cr. LR (Guj) 220
27

66. LX v. Union of India, 2004 (Delhi HC) 108, 384

67. M.A. Khan v. State, AIR 1967 SC 254 131,385

476
68. Maganbhai Prasangbhai v. State of Gujarat, 1994 (2) GLR 977 :
1994 (2) GCD 201

69. Mahesh v. State of MP, AIR 1987 SC 1346 27

70. Maliyakkal Abdul Azeez v. Assistant Collector, Kerala, (2003) 2


ILD 920 (SC)128,183

71. Maneka Gandhi v. Union of India, AIR 1978 SC 59 106,384

72. Mara Ram v. Union of India, (1981) 1 SCC 107 225

73. MH Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : AIR 1978


SC 1548116,384, 385

74. Mir Mohahmad Ali v. State of Andhra Pradesh, 2000 126

75. Modiram v. State, AIR 1972 SC 2438 14

76. Mohammad Giasuddin v. State of A.P, AIR 1977 SC 1926 31, 33,
130, 133,384, 389

77. Motilal Saraf v. State, 2006 SC 113

78. Motisinh Kesrismh v. State of Gujarat, (DB) 1994 Cr. LR (Guj) 396
: 1994 (1) GCD 822 : 1994 (2)

79. Murti Devi v. Delhi Administration, (1998) 9 SCC 604 148, 385

80. Nadella Venketkrishna Rao v. State of AP, AIR 1978 SC 480 23

81. Palaniappa Gonder v. State of Tamil Nadu, AIR 1977 SC 1323 37,
196

82. Pandit Parmanand v. Umon of India, (1995) 3 SCC 248 106, 384

83. Parmannd Katara v. Union of India, AIR 1989 SC 2039 : (1989) 4


SCC 286,107, 384

84. Paschim Bengal Khet Mazdoor Samiti v. State of West Bengal, AIR
1996 SC 2426 : (1996) 4 SCC 37

477
85. Phul Singh v. State of Haryana, AIR 1980 SC 249 186

86. PoonamLata v. Wadhawan, AIR 1987 SC 1383 : 1987 (3) SCC 347
248, 249, 252, 393

87. Prabha Dutta v. Union of India, AIR 1982 SC 6 141

88. Pragji Anandji v. State of Gujarat, 2000 Cr.LR (Guj) 290

89. Prakash v. State of MP, 1993 Cr LJ 119 (MP)

90. Prem Shankar v. Delhi Administration, AIR 1980 SC 1535

91. Pt. Parmannd Kumar v. UOI, AIR 1989 SC 20

92. Punchu v. State of Orissa, 1993 Cr U 953

93. R Rajgopal v. State of Tamil Nadu, AIR 1995 SC 264

94. Rachhapal Singh v. State of Punjab, AIR 2002 SC 2710

95. Rachod Mathur Waswa v. State of Gujarat, AIR 1974 SC 1143

96. Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507 : AIR 1998 SC
3281

97. Rajendra Prasad v. State of UP, AIR 1979 SC 916

98. Ram Shankar v. State of MP, AIR 1981 SC 644 : 1981 Cr LJ 162

99. Rasikbhai Ramsing Rana v. State of Gujarat, (DB) 1997 Cr LR (Guj)


442

100. RD Upadhyay v. State of AP, AIR 2006 SC 1946

101. Reepik Ravindra v. State of AP, 1991 Cr. U 595 (AP)

102. Regina v. Secretary of State for Home Department Ex-parte Leech,


1994 QB 198

103. Rudul Shah v. State of Bihar, AIR 1983 SC 1086 : (1983) 4 SCC
141

478
104. Sagrambhai Nagibhai Bharwad v. State of Gujarat, 1998 Cr. LR
(Guj) 8

105. Sanaboina Satyanarayana v. Government of Andhra Pradesh, (2003)


9 ILD 368 (SC)

106. Sanjay Suri v. Delhi Administration, AIR 1988 SC 414

107. Sanjay Suri v. Delhi Administration, 1998 (Suppl.) SCC 160

108. Sanjit Roy v. State of Rajasthan, AIR 1983 SC 328

109. Saradhakar Sahu v. State of Onssa, 1985 Cr LJ 1591

110. Saran Singh v. State of Punjab, AIR 1978 SC 1525

111. Sepoy Bhuwneshwar Singh v. Union of India, 1993 Cri LJ 3454


(SC)

112. Shabuddin, 1986 Cr LJ 149 (Guj)

113. Shaikh Abdul Azeez v. State of Karnataka, (1977) 2 SCC 485 : 1977
SCC (Cri) 378

114. Shakila v. Vasant, (2003) 7 SCC 749

115. Sharad Keshav Mehta v. State of Maharashtra, 1989 Cri LJ 681

116. Sheela Basre v. State of Maharashtra, AIR 1983 SC 378

117. Sher Singh v. State of Punjab, AIR 1983 SC 361

118. Smt. Kewal Pati v. State of UP, 1995 (101) Cr. U 2920 SC

119. Sodan Singh v. State of Rajasthan, (1991) 3 Crime 722 (Raj)

120. SP Anand v. State of MP, ADR. 2007 MP 167

121. State (Govt, of NCT of Delhi) v. Prem Raj, (2003) 9 ILD 359 (SC)

122. State of Andhra Pradesh v. Challa Ramkrishna Reddy, AIR 2000 SC


2083

123. State of Andhra Pradesh v. Sayyaduddin and others, ADR. 1996 AP

479
124. State of AP v. M.T. Khan, (2004) 13 ILD 589 (SC)

125. State of Gujarat v. Hon’ble High Court of Gujarat, AIR 1998 SC


3164

126. State of Gujarat v. Mustufakhan B Pathan, 1997 Cr. LR (Guj) 380

127. State of Gujarat v. Raghu, 2003 Cr. LR (Guj) 393 : 2003 (1) GLR
205

128. State of Haryana v. Ghaseeta Ram, AIR 1997 SC 1868

129. State of Haryana v. Jai Singh, (2003) 4 ILD 131 (SC) : AIR 2003 SC
1696

130. State of Haryana v. Mohinder Singh, AIR 2000 SC 893

131. State of Haryana v. Nauratta Singh, (2000) 3 SCC 514

132. State of Himachal Pradesh v. Lat Singh, 1990 Cr. LJ 723 (HP)

133. State of Maharashtra v. Asha Arun Gawalui, AIR 2004 SC 2223

134. State of Maharashtra v. Manubhai Pragaji Vashi, (1995) 5 SCC 730

135. State of Maharashtra v. Prabhakar Pandurang Sanzgir, AIR 1966 SC


424

136. State of MP v. Mohan Singh, (1995) 6 SCC 321 : 1996 Cr LJ 2878


(SC)

137. State of Punjab v. Kesar Singh, (1996) 5 SCC 495

138. State through Supdt. Jail, Delhi v. Charulata Joshi, 1999 C. L.J 2273

139. Sukdas v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991 :


(1986) 2 SCC 401

140. Sukhdev Singh, (1982) 2SCC 439

141. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494 : AIR 1978
SC 1675

480
142. Sunil Batra v. Delhi Administration, 1980 Cr.LJ 1099 (SC) : AIR
1980 SC 1579

143. Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409

144. Sunil Gupta v. State of MP, (1990) 3 SCC 119

145. Suijit Roy v. State of Rajasthan, AIR 1983 SC 328

146. TK Gopal alias Gopi v. State of Karnataka, (2000) 6 SCC 168

147. TN Mathur v. State of UP, 1993 (Supp) 1 SCC 722

148. Vallabh Ramji v. State of Gujarat, 1993 (2) GCD 213 : 1994 (1)
Crimes 198

149. Veena Sethi’s case, AIR 1983 SC 339

***

481
QUESTIONNAIRE
RESEARCH METHODOLOGY

The Research and Methodology involves two aspects for arriving at the
conclusion

(i) Doctrinal
(ii) Non – Doctrinal
In doctrinal approach the existing literature in the form of Books, Articles,
Research Papers, Seminar publication help me to the topic. Further the “Socio
Legal Study Of Prison System And Its Reforms In India” again required a
detailed doctrinal approach and the same has been followed.

The other aspects of Non – Doctrinal includes questionnaire which was


there to know about the feedback status of the Prison System on my research
topic. Interview from various sections of the society was conclusion. The
questionnaire as placed by me before the interviewers is annexed and the outcome
has been stated by me in the conclusion part.

Doctrinal
I. Books
(i) Online
(ii) Printed
II. Articles
(i) Online
(ii) Printed
III. News Papers
(i) Online
(ii) Printed
IV. Statutes
V. Case Laws
[Mentioned at foot-notes and in bibliography]
Non-Doctrinal
I. Questionnaire
QUESTIONNAIRE (FOR PRISON STAFF)
Que.1. What,in practice, is the maximum/minimum time for which the accused
person is kept in the police lock-up. Maximum.........
Minimum........................................................................................................

Que.2. Do you inform a person in your custody o f the grounds of his arrest...........

....................................................................................................................................

Que.3. Do you allow, relatives/friends/lawyers of the accused person to meet him,


whenever, they come to v is it the jail? how much time is allowed to them

....................................................................................................................................

Que.4. What are the various difficulties which you usually face, while dealing
with a prisoner?

....................................................................................................................................

Que.5 Prisoners usually have a distrust towards police and often speak against
them. In your opinion what is reason?

....................................................................................................................................

Que.6. What should be the role of police towards resocialisation of prisoner


into.society?

...................................................................................................................................

Que.7. Would you like to suggest any change in our present prison system?

....................................................................................................................................

Que.8. Do you feel any sort of sympathy towards, the long­ term prisoners during
their imprisonment?

....................................................................................................................................

Que.9. What are the various correctional and vocational trainings imparted to the
inmates in your prison?

....................................................................................................................................

Que.10. Do you have separate arrangements for the segregation of the different
type of the inmates?

...................................................................................................................................
QUESTIONNAIRE (FOR ADVOCATES)

Que.1. what difficulties are in your opinion faced by accused during his trial for
any offence?

……………………………………………………………………………………
Que.2. How much time is taken by court, for trial of a grievous offence ?

....................................................................................................................................

Que.3.what is the reason in your opinion about long duration of trials?

…………………………………………………………………………………

Que.4. Would you like to suggest any change in our present police system?

....................................................................................................................................

Que.5 do you agree that present legal aid mechanism is suffient for prisoners?.

...................................................................................................................................

Que.6. share your experience of any case related to torture of prisoners?

...................................................................................................................................

Que.7. Would you like to suggest any change in our present prison system?

....................................................................................................................................

Que.8.whether reformation process at present is suffient to improve prison


environment?

....................................................................................................................................

Que.9. Do you felt any sort of sympathy towards the accused during his trial

....................................................................................................................................

Que.10 Can you suggest any method of resocialization of those prisoners, who are
sentenced for long terms?
QUESTIONNAIRE (FOR PRISONERS)

Que.1. what was the nature of the offence under which you were charged?

........................................................................................................
Que.2. after how much time you were informed of the grounds of detention?

....................................................................................................................................

Que.3. what difficulties are faced by you in the police custody?

....................................................................................................................................

Que.4 what is the attitude of the prison officers towards you and your family?

............................................................................................................

Que.5were you allowed to communicate your lawyer regularly?

………………………………………………………………………………………

Que.6 whether prison staff allows you to meet your family members.

...................................................................................................................................

Que.7. What was the attitude of the other prisoners towards you in prison?

....................................................................................................................................

Que.8. what sort of education or vocation/training you have learnt in the jail??

....................................................................................................................................

Que.9. what is your daily routine in the prison?

....................................................................................................................................

Que.10. What are the various games and cultural activities in which you
participated in the jail ?

...................................................................................................................................
Questionnaire phase Includes

(A) Preparation of question related to Prison System

(B) Questionnaire were designed to capture the;

(a) Level of awareness of the Legal Study Of Prison System And Its
Reforms In India Issues and constraints in using the system

(b) Issues and constraints in impact on society by the Information


providers, which includes –

(i) Public Authorities 05

(ii) Jail Superintendent 04

(iii) prison officer 06

(iv) Prisoners 04

(v) Advocates 10

(vi) Law Students 20

(vii) Professors 05

(viii) Activists 06

(ix) Researchers 06

(x) Rural People 10

(xi) Urban People 20

(xii) Doctors 04

(xiii) Engineers 08

(C) The Answers given by the above were used in conclusion and
suggestion chapter.

****************
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Prof.. ANAND PALIWAL


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No. F. /UCL/Ph.D./2014/ Dated :

TO WHOM IT MAY CONCERN

This is to certify that Mr. Priyadarshi Nagda has submitted an article on

“concept of recognition in international law and instances of its breach by

powerful Nations.” which has been published in the Mewar Journal of

Legal Studies, ISSN No. 0975-346X (Ref. Journal) .

(Prof. ANANAD PALIWAL)


DEAN
Cover Page

Title
Concept of Recognition in International Law and instances of its Breach by Powerful Nations

Citation Format
OSCOLA 4th Edition

Prepared by :
Priyadarshi Nagda
Scholar
university college of law
Udaipur.
Title

Concept of Recognition in International Law and instances of its Breach by Powerful Nations

Introduction

The recent annexation of Crimea, formerly the part of Ukraine, by Russia has again raised the question
of Sovereignty of a State. Whether it will be a part of New state or will remain the part of old one?
Since past, this specific question has many times rattled the International community wherein one State
loses its Sovereignty by the intrusion of other. In this respect, tool of Recognition is very effective as it
has been many times used by the other States to deter, punish or impose the sanction upon the State in
question. This analogy can again be traced in the present case of Russia, in case of annexation of
Crimea, where it is facing the same consequences from the Western nations and International
organizations like NATO in form of economic sanctions and joint military exercises against it.

Supplementing the case of Crimea with the past cases of Rhodesia, Palestine, Israel, South Sudan,
Nicaragua, Hong Kong, Tibet, Kosovo, Somaliland, Chechnya, Darfur etc, it becomes imperative to
understand the concept of Recognition in International Law and what are its implications in the effective
functioning of the Sovereign in International community. This research article focuses on analysing the
Recognition with main emphasis on its two specific types, namely De facto and De jure by conjecturing
various doctrines and historical events related to the same.

Recognition
The concept of recognition is not of the recent origin and dates back in the history. It is an institution that
has existed for a long time. Its earliest use appeared to be in the Middle Ages when a political entity, in
order to become an independent member of the family of Christian nations required papal recognition.1
While the power of the Pope waned at the end of the Middle Ages, a similar role was played by the

1
Blix, Hans M., Contemporary Aspects of Recognition (1970II) 130 Recueil des cours de l'Académie de
droit international de la Haye 589.
European oligarchy of the Great Powers in the first half of the nineteenth century2. In modem times, the
grant of recognition is exclusively left to the judgement of the executive department of national
governments and its decision is binding upon the judiciary3. It is through recognition that one state is able
to exercise his rights and attributes of sovereignty visavis another state.

But it was in 1947, when Sir Hersch Lauterpacht entered in this fray of Recognition through his book
Recognition in International Law4 where he vehemently averted that States were legally obliged to
recognize any polity that met the requirement of statehood. The work of Lauterpacht has gained
importance because he called for the collectivization of recognition and rejected legal positivism. As per
John Dugard5, to embark upon the issue of recognition, it is essential to examine the practice of
International recognition under League of Nations.

Status of Recognition in the past time

Tracing from the time of League of Nations, it was believed by many states that the membership in
League of Nations is an automatic passport to gain their ‘International Recognition’. According to
Dugard, two trends could be identified from that era. First, the collectivization of recognition through the
League substantially undercut the preexisting law of recognition according to which each state had
absolute discretion to grant or withhold recognition to an aspirant state. Second, the emergence and rise
of the principles of selfdetermination and respect for minority rights suggested to a wouldbe state that
its human rights behavior would be a factor considered by the international community in deciding
whether to recognize it.6According to him, recognition during the period of League of nations was “a
branch of international law rather than an exercise in international politics”.

After the First World War, when League of Nations failed to stop the Second World War, one more
body came into existence in 1945 which is known as ‘United Nations’. And under the reign of United

2
L. Lederer , 'Recognition A Historical Stocktalk Lng' [1957] International Ret , 6972.
3
P.K. Menon, 'Some Thoughts about the Law of Recognition' [1991] SriLanka J. Int' L. 87, 87.
4
H Lauterpacht , Recognition in International Law (1st, Cambridge Law University, Cambridge 1947).
5
John Dugard, Recognition and the United Nations (3rd, Cambridge Law University, Cambridge 1987).
6
Ibid at p.16.
Nations, as per Dugard, Recognition certifies the ‘legal’ existence of an
entity as ‘State’ subject to the benefit and burden of International Law. But, he also adds that, such
recognition by the organization does not require a member state “to enter into bilateral relations, or
to exchange diplomatic relations with an obnoxious fellow member ..”.7

Also the parameters under Article 1 of the Montevideo Convention8, which attempts to provide
quintessential of states, could not be considered sufficient for the recognition9. Rather to gain existence
as a State, such entities must avoid violating any peremptory norm of International Law.10 Also the
pretext of collective recognition should be considered as the legal recognition11 for any state to be
termed as Sovereign.

Status of Recognition in present time

The Law of Recognition is not yet fully developed and majorily remains uncodified in terms of
technicalities and modalities of its operation. As remarked by one writer:

“Recognition has been the football of diplomats who have made it mean anything that suited
their purpose. It has certainly been grossly abused as a weapon of diplomatic pressure and
intervention... It has in many cases proved to be an insoluble puzzle to the courts whose decisions
have been sometimes conflicting and confusing”.12

The law of recognition has escaped strict legal criteria or controls. Recognition per se is a political act;
since its consequences are within the ambit of international law, it may be said that it is a legal act. In
practice, recognition constitutes a political determination, frequently according to considerations of

7
Ibid at p. 50.
8
Montevideo Convention on the Rights and Duties of States, 1933.
Article 1:‘The state as a person of international law should possess the following qualification: permanent
population;defined territory;government; and capacity to enter into relations with the other states.’
9
Ibid at p.130.
10
Ibid at p.131.
11
L. Berat, 'Recognition and the United Nations' [1989] Tex. Int'l L. J. 501, 506.
12
Brown, 'The Legal Effects of Recognition", 44 The American Journal of International Law,(1950) p. 61.'
[1950] The American Journal of International Journal, 61.
policy, of questions of mixed international law and fact.13 And this recognition is many times delayed
because of the reason of national interest of a country or group of countries.

The legal act of recognition determines whether international law is applicable to the new entity in its
relation to other States. The answer to this question whether the establishment of the fact that in a
given situation 'States in the sense of international law' exist is within the jurisdiction of the States
concerned.14 And conventionally this is considered as the unilateral act of the State.

In the modem world system, along with the rapid growth of a large number of independent nation States
with diverse political, social and economic backgrounds, the subject of recognition is bound to be of
major importance. The importance will continue to be enhanced along with the marked transition of
international law from the traditional system of formal rules of mutual respect and abstention to an
incipient system of formal rules of joint efforts and cooperation. 15

De Facto Recognition and De Jure Recognition


The subject of de facto recognition is a somewhat elusive topic of the law of recognition. There is no
consensus of opinion as to its precise legal meaning.16As De facto recognition is also known as tacit
recognition, and the essential feature of this type of recognition lies in its revocability. According to
Lauterpacht, to completely understand the concept of de facto, following essential should be taken into
consideration:
a) de facto recognition is not a modern innovation but a frequent feature of practise of States.
b)de facto recognition is a formal act which has legal consequence and characteristics which
distinguish it from de jure recognition.
c)de facto recognition must not be confused with informal intercourse, even when accompanied by an
exchange of agents and representatives, not amounting to and not intended as recognition.

13
Supra note 3 at p. 88.
14
Kelsen, 'Recognition in International Law: Theoretical Observations' [1941] The American Journal of
International Law 35, 607.
15
Supra note 3 at p. 89.
16
H. Lauterpacht , 'De Facto Recognition, Withdrawal of Recognition and Conditional Recognition' in (eds),
British Year Book International Law(1st, University of Cambridge, Cambridge 1945).
On the other hand, de jure recognition is a type of recognition which derives its inception from the
constitution or from the legitimate source. De Jure Recognition can also be termed as the political
nuance17, because it is through political motivation or process which leads to the legitimacy of the
government. According to Lauterpacht, both de jure and de facto falls under the legal acts.Though this
paper restricts itself to the discussion of De facto Recognition only.

De Facto Recognition

The beginnings of de facto recognition may be traced back to the first quarter of the nineteenth century
when the secession of the LatinAmerican Republics confronted Great Britain and other States with the
problem of reconciling the practical necessity of recognition with the legitimist pretensions of Spain and
Portugal. The solution was found in a measure of de facto recognition, the distinguishing feature of which
was that it did not purport to express an attitude with regard to the legal merits of the claim to
independence and of the title of the parent State.18
In the 19th century there were regular references with reference to de facto government but there are no
emphatic instances. The cases of Civil war, especially in African continent, has shown few instances of
De facto recognition. In this conduit, Sierra Leone is the most apt example. It was between Multi party
constitution and Revolutionary United Front (RUF) Rebellion where government of Sierra Leone
provided the legitimacy to the rule of RUF leading to the first major event in African history of De Facto
recognition. Similar events also took place in case of Rwanda also. The Civil war of 199094 was the
most devastating one wherein dilapidating the whole nation economically and socially leading to the Civil
War. And this Civil war lead to the severance of Rwanda wherein one part was governed by the
recognised government (de jure) and the rest was Rwandan Patriotic Front (RPF) which was, indeed,
Government of De Facto recognition. In the 21st century also, there are many instances which lead to
the Government with De Facto recognition. Instances of the Ivorian election crisis of late 2010 marked
the beginning of an interstate conflict between the seated government under President Laurent Gbagbo

17
Ibid at p. 164.
18
Ibid at p. 165
and the regime under the contested winner of the elections, Alassane Ouattara.19 Clashes between the
forces loyal to the two men resulted in the death of more than a thousand and the displacement of over a
million persons. Under the influence of measures taken by the international community, Ouattara's
regime was later installed as the Ivory Coast's official government.'
In 2011, Libya was in the grip of a civil war between forces loyal to the seated government under
Moammar Gadhafi and opposition forces seeking to depose him. These opposition forces had
organized themselves as the 'National Transitional Council' ('NTC'), controlling large parts of the Libyan
territory In its struggle to become Libya's official government, acts by international actors have played
an important role.

And the recent case of Egypt which was for some time rules by the de facto government that was lead
by the Muslim Brotherhood. Also the case of Ukraine, when then President Viktor Yanukovic, fled the
country in turmoil, for some time nation was governed by the temporary government, which could be
termed as the de facto government.

Theories of Recognition

There are two theories on the nature, effect and function of recognition.20One is Constitutive theory and
other is Declaratory theory.

Constitutive Theory sets out that it is the recognition of an entity as a State that makes it so. This theory,
however, fails to explain why certain entities that have received numerous recognitions as such are not in
fact States. It also raises the question of how many recognitions are necessary in order for an entity to
become a State. One clear example of this problem is the “State of Palestine”. As of July 2011, the
Palestinian Liberation Organization (PLO) was reporting that it had received at least 122 recognitions of
its “Statehood” and recently has been allowed by the UN as the Observant Member21.

19
Allan little, Q&A, Ivory Coast dCrisis' BBC(Nwt (London, 13 April
2011)<www.utrechtjournal.org/article/download/ujiel.ay/25> accessed 25 April 2014.
20
J. Starke, Introduction to International Law, 91, 14981 (8th Edition 1967).
21
J.M.Davids, ‘What makes a State’.
<http://thenewinternationallaw.wordpress.com/2012/05/02/what makesastate/> accessed on 27 April 2014.
Whereas on the other hand, the declaratory theory provides that the moment in which an entity satisfies
all the conditions set out in the Montevideo convention the entity is a State. This theory is close in line
with the convention itself and the pronouncements of Articles 3 and 6. It however fails to adequately
describe the creation of “States” in international practice.22

Legal Rights and Obligations under De facto Recognition

The identity of international actors their international legal personality is of central importance in
determining how international law applies to them. Therefore it become imperative for the International
legal system to determine whom it endows with the rights and duties and whose actions it takes into
consideration by attaching legal consequences.23

1.Adherence to International Humanitarian Law


International Humanitarian Law is defined as “a set of rules which seek, for Humanitarian reasons, to
limit the effects of armed conflict. It protects the persons who are no longer participating in the hostilities
an restricts the means and methods of warfare”.24 In normal circumstances, De facto recognition often
originate and exist in situations of (internal) conflict, with the opposing party usually being the parent
state's government or another nonstate entity, IHL deserves special attention as it includes basic and
universal norms of international law which are often relied upon in situations of armed conflict which is

22
Ibid 20.
23
J. V. Essen, 'De Facto Regimes in International Law' [2012] MerkouriosUtrecht J. Int'l & Eur. L. 31, 34.
24
ICRC, ‘What is International Humanitarian Law?’ [2004] <http://www.icrc.org/eng/war andlaw/> accessed
27 April 2014.
provided under Article 325 of the Geneva Conventions and its additional Protocols. And De facto

recognition are bound to follow them.

2. Following the Peremptory Norms

Each State is under the obligation to follow the principles Jus Cogens and cannot afford to derogate
from it in any sense. This applies to the De facto Recognition also.

3. Prohibition of Use of Force

In addition to Jus Cogens,'the prohibition of the use of force, is setted out in Article 2(4) of the UN
Charter, which expressly prohibits the 'threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the United Nation26.

Conclusion

25
In the case of armed conflict not of an international character occurring in the territory of one of the High
Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down
their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in
all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with
respect to the abovementioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by
civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its
services to the Parties to the conflict.The Parties to the conflict should further endeavour to bring into force,
by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
26
1945 Charter of the United Nations, 1 UNTS XVI, Article 2(4).
The concept of Recognition is of the pivotal importance in International Law. It helps in understanding
the exigencies related to the functioning of a State under various circumstances and it also outlines the
Rights and Liabilities against other States. It provides the basis for the State to act and comply with
certain factors which could be both Internal as well as External.
De facto Recognition assumes the importance because it attracts the provisions of International
Humanitarian Law, International Criminal Law and also Domestic Laws, which are concomitant for the
peaceful, orderly and stable functioning of State. But it is followed by a drawback that it does not
provide the exhaustive option to the State in instances of breach of inviolability of the State. This
conclusion is premised upon recent breach of international principle of Recognition. For instances, the
Crimean annexation by Russia, Egyptian turmoil leading to dilapidation of national economy, Libya
catastrophe etc.. This are the apt incidents where there was prima facie breach of international law and
no adequate steps were taken in this regard.

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