Professional Documents
Culture Documents
A THESIS
Submitted for the Award of Ph. D. degree of
MOHANLAL SUKHADIA UNIVERSITY
In the
Faculty of Law
By
PRIYADARSHI NAGDA
DEPARTMENT OF LAW
FACULTY OF LAW
MOHANLAL SUKHADIA UNIVERSITY, UDAIPUR
2016
CERTIFICATE
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
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 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.
Date :
Place : Udaipur PRIYADARSHI NAGDA
ii
LIST OF ABBREVIATIONS
& And
Amd. Amendment
Art. Article
Bom. Bombay
CJ Chief Justice
Co. Cooperation
DB Division Bench
Dec. December
e.g. Example
Edn. Edition
Govt. Government
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
V. Verses
Vol. Volume
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
iii
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
iv
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
vi
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
vii
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
viii
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
ix
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
x
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
xi
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
xii
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
Amd. Amendment
Art. Article
Bom. Bombay
CJ Chief Justice
Co. Cooperation
DB Division Bench
Dec. December
e.g. Example
Edn. Edition
Govt. Government
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
V. Verses
Vol. Volume
xv
Chapter - 1
INTRODUCTION
PRISON SYSTEM IN
INDIA AND ITS REFORMS
CHAPTER -1
INTRODUCTION
PRISON SYSTEM IN INDIA AND ITS REFORMS
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.
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).
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.
4
place of detention of offenders until trial and Judgment and the execution of
the latter.
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. Pre-trial prisoners,
3. Convicted prisoners.
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.
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.
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.
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.
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.
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.
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.
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
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.
14
useful to the society for quick, effective results to control the crime rate in
the society.
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".
3. The offender should not get undeserved benefit out of their criminal
laws.
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.
17
1.5.5 Expiatory Theory
"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
18
punishment is the use for achieving good results for common good in
society.
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
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.
1.6.4 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
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:-
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.
(A) Section 73
(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;
24
(c) A time not exceeding three months if the term of imprisonment shall
exceed one year.
(B) Section 74
(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.
25
Section-121, Waging or attempting to wage war, or abetting waging
of war, against the Government of India.
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.
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 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).
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.
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
“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.
30
1.8.5 Inequalities and distinctions
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
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
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.
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.
33
1.8.9 Abuse of prisoners
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.
35
1.9 CONSEQUENCE OF PRISON STRUCTURE AND
FUNCTION
36
(2009) mention that prisons are “excellent venues for infectious disease
screening and intervention, given the conditions of poverty and drug
addiction”.
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
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
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
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.
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”.
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.
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.
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.
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).
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)
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
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.
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.
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
50
recommendations of the Macaulay Committee between1836-1838, Central
Prisons were constructed from 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.
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.
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.
55
4. The Identification of Prisoners Act, 1920.
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.
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
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.
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.
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.
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.
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.
The 19th century saw the birth of the state prison with
introduction of many models
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.
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
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.
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.
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.
69
2.3.2 Mediaeval India
Punishment for these offences were put in four classes, they were,
1) Hadd
2) tazir
3) Quisas
4) Tasir.
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
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.
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:
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.
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.
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.
77
2.3.4 Prison System Post Independence
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;
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.
80
adopting the foreign procedure of appointing ombudsmen to decide the
prisoner’s grievances.
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:
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).
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 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.
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.
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
***
86
Chapter - 3
NATIONAL AND
INTERNATIONAL
PROVISIONS REGARDING
PRISON SYSTEM AND
INMATES
CHAPTER -3
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.
87
Justice -social economic and political;
Liberty -thought and expression, belief and faith; Equality-of status
and opportunity and to promote among them all;
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-
“The state shall not deny to any person equality before law or the
equal protection of laws within the territory of India”
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.
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
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 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.
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.
(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.
(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
Article 32 says,
5 AIR1965All349 .
93
prohibition, quo warranto and certiorari, whichever may be appropriate, for
the enforcement of any of the rights conferred by part III”
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.
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:
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.
There are many guidelines in this act which throws light upon the
prison system and its reformation:
98
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.
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.
(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.
99
Prison authorities in receiving state shall make arrangements for the
detention of the prisoner in this respect.
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;
100
probation laws in India were introduced through this act. The special
features of this act are-
101
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).
The prisoner has not been convicted for an offence under the martial
law; and
102
transfer of custody of the prisoner to the contracting State shall not
be prejudicial to the sovereignty, security or any other interest of
India.
103
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,
The Medical Officer shall enter, or cause to have entered under his
supervision the following details regarding prisoner:
104
a) The prisoner's weight on admission
105
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.
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.
Religious books;
Religious pictures;
107
Rosary and essential religious emblems in accordance with security
measures;
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.
(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.
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
110
and develops in him self-reliance, self- confidence and social
responsibility, which are necessary for his rehabilitation in the
society.13
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
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.
112
(A) Process of rehabilitation and social reintegration-
(B) Adoption17
c) To childless couples.
(D) Sponsorship
113
nutritional, educational and other needs of the children with a view to
improving their quality of life.19
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.
114
Ninth Law Commission (Chairman Mr. Justice P. V. Dixit 1979-1980)
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
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.
117
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 is consequence of an offence
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
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.
119
there is also need of such programmes for solving the acute problems of the
women prisoners inside or outside the prisons.
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.
120
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
23 6 http://nhrc.nic.in/Documents/Minutes%20&%20Reco%20Prison%20Reform.pdf
121
country. The state Govt has its own rule and regulations to run the prison
system.
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.
122
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
All are equal before the law and are entitled without any
discrimination to equal protection of the law.28
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
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
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.
125
7. Military rank (Articles 43–45)
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
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
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:
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
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
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
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
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
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
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
19. Provision shall be made for the further education of all prisoners
capable of pursuing there education further.71
3.3.6 Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment73
Principle 1
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
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
Principle 8
Principle 10
Principle 11
135
receive prompt and full communication of any order of detention, together
with the reasons therefore.
Principle 12
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;
Principle 14
Principle 16
Principle 18
136
Principle 19
Principle 21
Principle 22
Principle 30
Principle 33
Principle 34
137
Principle 36
Principle 38
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.
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.
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
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
Prisoners around world shall be treated with the respect due to their
inherent dignity and value as human beings.
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.
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
143
they decided to make rules regarding their safety and development. Here
are some important rules:
144
Every juvenile should have the right to receive vocational training in
prison so that he can prepare himself for his future employment.
Every juvenile should have the right to a suitable amount of time for
daily free exercise while he is under detention.
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.
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.
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.
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.
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
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.
151
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.
***
152
Chapter – 4
PRISON SYSTEM-
A COMPARATIVE STUDY
CHAPTER -4
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.
153
4.2 PRISON SYSTEM IN BRITISH AGE
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 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.
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.
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).
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
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.
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.
(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.
160
(viii) spoiling the prison environment by smoking.
(ix) Failing to give assistance to a prison official when called upon.
161
(xxvi) Wilfully hurting other sentiments, religious feelings, beliefs and
faiths.
(xxvii) Converting, or attempting to convert, a prisoner to a different
religious faith.
1. Minor Punishments:
a) Formal Warning
2. Major Punishments:
162
d) Not counting period of leave towards sentence in case of
breach of conditions of leave
a. Punitive
b. Deterrent,
c. Rehabilitative
d. Reformative.
163
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
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:
ii. Right to integrity of the body; immunity from use of repression and
personal abuse, whether by custodial staff or by prisoners;
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iii. Right to integrity of the mind; immunity from aggression whether by
staff or by prisoners;
iii. Right to receive the information about the outside world through the
communication media.
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v. Right to receive all court documents necessary for preferring an
appeal or revision or review of sentence or conviction;
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
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constitutional rights and statutory rights of women prisoners are discussed as
under:
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.
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
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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.
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.
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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
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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
1 Experience of human rights violations and subsequent mentaldisorders-a study following the
war in the Balkans. Soc Sci Med 2010;71:2170-2177
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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
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.
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
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jails/subsidiary jails. Along with it they are further categorized into
reformatory institutions for young offenders and woman reformative centers,
open air camps etc.
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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.
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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.
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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.
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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.
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–
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.
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Watch towers, wherever necessary, to watch inside and outside of the
prison, to be constructed and searchlights and binoculars made
available.
Women prisoners with children should not be kept in the sub jails,
which are not equipped to keep small children.
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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:
iii. An evening meal, before prisoners are locked up for the night.
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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).
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.
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.
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.
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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.
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.
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4.7.9 Clothing
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.
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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.
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:
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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.
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
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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.
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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.
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.
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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.
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.
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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.
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.
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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.
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.
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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.
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.
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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
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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
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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.
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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.
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.
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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.
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To file a complaint with the BOP Regional Office that oversees the
facility in question.
(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.
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Some of the practical reforms which have developed in the U.K are:
When someone arrives at prison they have at least one interview and
assessment so that they:
The prisoner gets a prison number and their property is recorded and
put somewhere safe until they’re released.
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:
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4.10.2.4 Punishments
4.10.2.5 Rights
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.
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Have drug or alcohol problems
Most prisons also have ‘listener schemes’ that offer emotional support
in confidence - normally from fellow prisoners.
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.
Bronzefield
Eastwood Park
Styal
New Hall
Peterborough
Askham Grange
There are 190 prisons spread across the French territory including
main and overseas territories. They are divided into several categories:
207
b) Security prisons provided for long term prisoners, that is to say
over 10 years (6)
208
and maintenance of buildings. The private companies own the buildings for a
27 years period, during which the government pays rent.
(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.
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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.
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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.
211
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.
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:
Psychologists and other professional staff. Many prisons have severe space
constraints and simply do not have rooms in which to run programmes.
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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.
214
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.
215
(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,
(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.
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.
216
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.
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.
Medical treatment for prisoners deprived of their liberty and also for
persons suspected and accused of crimes detained in remand prisons.
218
4.10.7 Prison Reforms in China
C) Prisoners who have not been stripped of their political rights have the
right to vote according to law.
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
219
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.
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.
221
are to be offered jobs to provide them with opportunities to study and
work and encourage them to go straight.
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.
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.
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.
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.
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.
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
227
pretrial detention exceeded the maximum length of sentence that could be
imposed for the alleged crime. 14
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
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.
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.
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
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
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 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.
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.
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.
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
attended a two-day ICRC seminar which had focused on how to mitigate the
source and impact of the overcrowded prisons.
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.
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 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
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.
243
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
244
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:
245
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.
246
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.
247
a) Equality before Law,
b) Prohibition of discrimination on the grounds of religion, race, caste,
sex or place of birth,
248
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.
249
5.1.4 Role Played By Judiciary for Prisoners Protection
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
250
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.
(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.
251
(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
252
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.
253
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.
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
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
255
procedural steps against a person suspected of a crime or publicity names
him as such....."
256
4) Freedom from detention beyond the 24 hrs period proper order of
Magistrate only
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.
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.
258
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.
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.
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.
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.”
"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
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."
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."
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."
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.
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.
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.
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.
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",
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.
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
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,
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.
(c) The conviction (or acquittal) 115 in the previous proceeding must
be in force at the time of these contrail. ibid
271
5.2.16 Protection against self incrimination
“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.”
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.
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.
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-
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.
(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.
276
nutrition, clothing, shelter over the head, facilities for reading, writing,
interviews, with members of his family and friends, subject to, prison
regulations.
277
5.2.19 Rights against Hand Cuffing
“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.
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
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”.
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.
279
5.2.22 Right against delayed execution.
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
280
restrained in various matters and the question arose whether anyone has the
right to be let alone and particularly in jail.
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
281
released forthwith. After an order of acquittal, he cannot be detained behind
the prison walls.
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.
283
also held in Sunil Batra’s case that prisoner has The right to acquire hold
and dispose of property.
284
requirement of a fair procedure under Art. 21 also extends to cases of
preventive detention
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.
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.
The principles can be laid down for granting the bail as under:-
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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’.
299
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.
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.
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
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.
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:
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.
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.
306
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:
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.
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.
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 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:
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.
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.
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.
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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 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.
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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.
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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.
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”.
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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”.
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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,
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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.
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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
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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.
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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.
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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.
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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.
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Reference of the Delhi Prisons (Visitors of Prisons) Rules. 1988
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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.
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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.
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
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being timely and promptly filed by the free legal aid counsel or not and in
case required, must recommend action.
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
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.
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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).
333
use of alcoholic beverages, even if alcohol was not involved in the original
criminal charges.
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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.
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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.
6.3.2 Parole
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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.
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.
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.
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crimes rather than undue leniency towards the parolees. The essential
requisites of an ideal parole system may briefly be summarized 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
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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
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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.
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.
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6.3.4 Suspension Commutation and Remission
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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.
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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.
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
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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.
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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.
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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.
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The United Nations Congress on Prevention of Crime and Treatment
of Offenders held in Geneva in 1955 defined an ‘ open prison’ thus:
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
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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.
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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
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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.
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
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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.
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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
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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.
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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
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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.
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cannot be ignored that majority of criminals sentenced to imprisonment
want to return the society as law abiding citizens.
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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.
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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.
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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
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.
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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.
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Socialization Process in prison
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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
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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.
368
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.
369
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.
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(c) Evaluating status of Indian women
371
Family disputes are resolved or compromised through counseling.
Legal Functions:
372
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.
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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
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
Researcher has used the following tools and techniques for collecting
data:
5. Case Studies
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b) Jail Investigation in India – A case study
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.
378
the prisoners in the jail have been tortured a lot since sometimes they have
noticed marks of physical abuse.
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
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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.
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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.
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.
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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.
23.2% (1,624 out of 7,009) of the conviction related to the rape cases
were reported from Uttar Pradesh.
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A total number of 97 prisoners were awarded capital punishment and
capital punishment of 61 inmates was commuted to life
imprisonment 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.
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7.5.2 Inmates Particulars (data from NCRB)
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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.
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 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.
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CHART 7.5 DISTRIBUTION OF CONVICTS – 2012(NCRB)
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CHART 7.7 AGE GROUP WISE DISTRIBUTION (INDIAN FEMALE
INMATES) – 2012
388
7.5.5 Rate of Change of Convicts
7.5.6 Training
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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.
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7.5.7 Rate of Change of Under Trial Prisoners(NCRB data)
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.
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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 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).
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Hidden Facts
Total numbers of 5,096 jail officials (1,090 Officers and 3,784 Staff)
had attended the various training programs during the year 2012.
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Jails inspection and Visits
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:-
iv. To enter any observations in the visitor’s book about their visit to the
prison.
394
psychiatrists, psychologists etc. have been appointed as non-official
visitors.
Inspections
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
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.
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Inbuilt mechanisms for Close Circuit Television (CCTV), Optical
Fiber Cable Network.
Provision of separate prison for High Security prisoners and the First
Time Offenders to ensure total segregation.
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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.
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
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.
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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.
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7.6.6 Campus Placements at Tihar
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.
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.
Special treatments and special diets to the old and sick prisoners.
402
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.
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
403
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.
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.
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FIGURE 7.1 SECURITY THROUGH ELECTRIC WIRES IN
CENTRAL PRISON
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.
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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.
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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
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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.
NCRB-DATA
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:
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:
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.
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:
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:-
Ironsmithy
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.
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.
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
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.
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.
419
7.8.10 Visitors to Prison
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.
Diet
421
7.9 A REPORT ON BEST PRISON PRACTICES INDIA REPORT
ON THE NATIONAL CONSULTATION ON PRISON
REFORM - HUMAN RIGHTS
IGNOU;
Computer Centre;
Carpentry;
Bakery;
Pottery;
Shoe-making;
Sculpture making;
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.
422
The Act thus mandates:
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.
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.
424
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.
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. 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,
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.
***
428
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.
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.
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.
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.
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.
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.
434
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.
435
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.
436
8.4 OBSERVATIONS NOTICED BY RESEARCHER
DURING VISITS TO PRISONS
3. There was lack of holding regular lok adalts in the prisons which
are essential for disposal of petty offences for undertrials.
5. In some jails there was lack of proper medical facilities. Also there
was shortage of female doctors or practitioners for women
prisoners.
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.
437
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.
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.
438
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.
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
439
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.
440
provision for the appointment of special doctors, on case to case
bases, to deal with such diseases and situation.
441
1. To understand the capacity of present Prison infrastructure in
country.
c) Age
d) Sex
442
(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.
(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.
443
(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.
444
process of prisoners because these practices helps in creating
conducive environment in the Prison and among the prison inmates.
(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.
445
(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.
446
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.
447
(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.
448
8.7.1 Incorporation of prisoners right as new fundamental right in
part III of constitution
8.7.3 New provision for holding lok adalats for petty offences
449
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.
450
8.7.8 Induction and refresher training for prison staff
451
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
452
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
453
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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and the punishment is not going to be very severe; or (ii) the offences in
which the prisoners involved, being first offenders, may be entitled to
benefit of probation; or (iii) may be let off by the courts on payment of
fine only
471
In the United Kingdom, Courts have developed another tool for ruling
on legislative action – i.e. issuing a ‘declaration of incompatibility’ for
statutory provisions that contravene the ECHR.
472
LIST OF CASES
4. Allana Abdulla v. State of Gujarat, 1999 (2) GLR 1514 : 1999 (1)
GLH 852236,237
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
473
17. Charles Sobaraj v. Supdt. Central Jail Tihar, AIR 1978 SC 1514 104,
105, 162, 174, 380, 383
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
23. Dadu Tulsidas v. State of Maharashtra, 2000 SOL Case No. 573
(SC)
25. DBM Patnaik v. State of Andhra Pradesh, AIR 1974 SC 2092 104,
107, 121, 173,382, 384
27. Dharambir v. State of UP, AIR 1979 SC 1595 133, 215, 219, 384,
390
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
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
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
59. Koli Jeram Bhimji v. State of Gujarat, 1998 (1) GLR 754
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
476
68. Maganbhai Prasangbhai v. State of Gujarat, 1994 (2) GLR 977 :
1994 (2) GCD 201
76. Mohammad Giasuddin v. State of A.P, AIR 1977 SC 1926 31, 33,
130, 133,384, 389
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
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
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
96. Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507 : AIR 1998 SC
3281
98. Ram Shankar v. State of MP, AIR 1981 SC 644 : 1981 Cr LJ 162
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
113. Shaikh Abdul Azeez v. State of Karnataka, (1977) 2 SCC 485 : 1977
SCC (Cri) 378
118. Smt. Kewal Pati v. State of UP, 1995 (101) Cr. U 2920 SC
121. State (Govt, of NCT of Delhi) v. Prem Raj, (2003) 9 ILD 359 (SC)
479
124. State of AP v. M.T. Khan, (2004) 13 ILD 589 (SC)
127. State of Gujarat v. Raghu, 2003 Cr. LR (Guj) 393 : 2003 (1) GLR
205
129. State of Haryana v. Jai Singh, (2003) 4 ILD 131 (SC) : AIR 2003 SC
1696
132. State of Himachal Pradesh v. Lat Singh, 1990 Cr. LJ 723 (HP)
138. State through Supdt. Jail, Delhi v. Charulata Joshi, 1999 C. L.J 2273
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
148. Vallabh Ramji v. State of Gujarat, 1993 (2) GCD 213 : 1994 (1)
Crimes 198
***
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.
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.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.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.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.7. Would you like to suggest any change in our present prison system?
....................................................................................................................................
....................................................................................................................................
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.4 what is the attitude of the prison officers towards you and your family?
............................................................................................................
………………………………………………………………………………………
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.10. What are the various games and cultural activities in which you
participated in the jail ?
...................................................................................................................................
Questionnaire phase Includes
(a) Level of awareness of the Legal Study Of Prison System And Its
Reforms In India Issues and constraints in using the system
(iv) Prisoners 04
(v) Advocates 10
(vii) Professors 05
(viii) Activists 06
(ix) Researchers 06
(xii) Doctors 04
(xiii) Engineers 08
(C) The Answers given by the above were used in conclusion and
suggestion chapter.
****************
PUBLICATIONS
Ph : 0294-2470958 Ext. 400 Fax : 0294-27105
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.
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.
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
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
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
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
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.
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.