Condition of Prisons and Prisoners

Aurobindo Ghose

As of 31 December 2020, there are 1,306 functioning jails in India, having 4,88,511 prisoners with actual capacity to house only 4,14,033 prisoners. The 1,306 prisons in the country consist of 145 Central Jails, 413 District Jails, 565 Sub Jails, 88 Open Jails, 44 Special Jails, 29 Women Jails, 19 Borstal Schools and 3 Other Jails. Delhi has the highest number of Central Jails while Uttar Pradesh has the highest number of District Jails. Rajasthan has the highest total number of Jails.

Even the President of India, Smt Draupadi Murmu drew attention on Constitution Day (25 November 2022) to the chronic problem of overcrowding in Indian jails and suggested, “decongesting jails by releasing poor under-trials languishing there for years for petty crimes even while some people who killed others, are roaming free. What is the need to set up more jails? Are we moving towards development? We need to reduce their numbers,” she said.

The condition of prisoners in Indian prisons is starkly reflected in four situations. First, the treatment of the political prisoners with respect to their essential requirements. Second, the position of the children and women members of suspected migrant families in Assam. Third, the arbitrary and round-about manner of detaining and arresting protesters of the CAA and NRC in UP. And fourth, the application of the three draconian, allegedly (so-called) anti-terror laws relating to sedition, National Security Act (NSA) and the Unlawful Activities Prevention Act (UAPA).

President Draupadi Murmu’s call to the government and the judiciary to address the issue of overcrowding of prisons is significant and a very welcome intervention. “I hear these days that we will have to make new prisons because prisons are overcrowded. If we are moving towards progress as a society, then why do we need new jails? We should be closing down existing ones.”

 According to the Prison Statistics India 2021, a report published by the National Bureau of Record of Crime (NBRC), Ministry of Home Affairs between 2016 and 2021 the number of convicts in jails have decreased by 9.5 percent whereas the number of under-trial inmates has increased by 45.8 percent. With three out of four prisoners being under-trials, the problem of overcrowding of prisons is essentially an under-trial issue. As of December 31, 2021, around 80 percent of prisoners were confined for periods up to a year. The report states that an overwhelming 95 percent of under-trials released in 2021 were granted bail by courts while a mere 1.6 percent were released on acquittal by court. It shows that the sluggish pace at which trial courts work to reach a final decision cannot keep up with the increasing number of under-trials.

The Supreme Court recently asked the government to think “out of the box” and consider a one-time measure to release prisoners in certain cases on the occasion of the 75th year of Independence. While it is imperative for the top court to ensure that its liberal stance on bail percolates to the trial courts, it is also disingenuous to characterise the under-trial crisis as a mere bail issue.

The abysmally abject, inhuman, cruel and wholly arbitrary treatment of the political prisoners with respect to their dire necessities or essential requirements, is best illustrated by the cases of four of the sixteen Bhima-Koregaon political prisoners - late Father Stan Swamy, poet Varavara Rao, activist Gautam Navlakha, advocate Surendra Gadling - and former Delhi University professor, disabled, wheelchair-borne GN Saibaba serving a life-sentence for alleged Maoist links.

The term ‘political prisoner’ is used by persons or groups challenging the legitimacy of the detention of a prisoner. In general usage, any person who is in jail without reason, in abrogation of his or her fundamental rights or basic human rights or freedom of expression, is a political prisoner.

Foreigner Tribunals (FT), under the Foreigners’ Act, 1946, set up in Assam since 1964 have been tackling the issue of influx of illegal immigrants. A Bengali Hindu family of four was found to be languishing in the Kokrajhar detention centre for the last seven years only because the family had ignored notices from the FT, even while the elders of the family were all enjoying the freedom of Indian citizenship. Giving this family company in the detention centre, were five individual women, both Hindus and Muslims, who were the only ones in their family charged with being illegal immigrants, even though their husbands, parents and siblings continued to be Indian citizens. According to a Supreme Court ruling, illegal immigrants can be held in the detention centres only up to three years, after which they are eligible for bail. However, both ignorance of the law as well as their abject poverty, deter them financially to afford the bail. What is indeed distressing is that about19 lakh people from Assam have not been included in the latest National Register of Citizens (NRC), and they have all to assiduously prove their citizenship, failing which they may be moved to the detention centres, as political prisoners. The sword of Damocles hangs over their heads! For the vast number of poor, backward and ignorant citizens involved in this large exercise, it will be well-nigh impossible to obtain such age-old documents or to have access to lawyers or legal advice to prove that the available documents confer citizenship.

The UP Police imposed major fines on those protesting against the Citizen’s Amendment Act (CAA) for allegedly damaging public property, and when they failed to pay the fines, they were arrested. Although ostensibly they were arrested for criticising the CAA, that it discriminated between citizens on the basis of their respective religions, it was done in a round-about way.

Section 124-A dealing with the law of Sedition was inexplicably omitted when the Indian Penal Code (IPC) drafted by Lord Macaulay, was enacted in 1860. Section 124-A was inserted in 1870. It was one of the many draconian colonial laws enacted to stifle the voice of dissent. Some of the most famous sedition trials of the late 19th and early 20th Century involved Indian nationalists’ leaders like Bal Gangadhar Tilak, Mahatma Gandhi and that of newspaper editors like Jogendra Chandra Bose of the newspaper Bangabasi. The new CPC and other versions of Criminal Law have done without the old Sedition Law but it has been incorporated in its new avatar as Section 150 of the new Bill known as the Bharatiya Nyaya Sanitary (Bill) 2023.

The latest breaking news is that encounter killings have come back into Yogi Adityanath’s Uttar Pradesh.

The Jammu & Kashmir High Court recently quashed a sedition case against a Ladakh Councillor for comments on the Indian Army after Galwan clash, saying it is a “sheer abuse of law.” The Court said that though the comments may have been “unsavoury and detestable”, it would not amount to “sedition”.

Unlawful Activities (Prevention) Act is an Indian law allegedly aimed at prevention of unlawful activities of individuals and associations in India. Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India. It is a black law, and those arrested under its provisions are deemed to be ‘political prisoners’.

The National Crime Records Bureau (NCRB) data shows a rising graph of UAPA cases in J& K: from less than 60 cases annually until 2015, to 255 cases in 2019, the year of the revocation of Art. 370 in Kashmir and also the latest year for which NCRB data is available. Lawyers say that the Unlawful Activities Prevention Act (UAPA) is a stringent anti- terror law which prescribes seven years’ imprisonment against any unlawful activity “intended to disrupt the sovereignty and territorial integrity of India” or “is intended to cause disaffection against India”.

Housing nearly twice its original capacity, in 9 separate jails, Tihar is one of the most populated prisons in the whole of South Asia. As per the data provided by Jail authorities, Tihar has approximately 11,738 inmates as opposed to its capacity of housing 6,250 persons. 82 percent of Tihar’s inmates consist of under-trials, while convicts and detenues make up for the remaining 18 percent. In terms of total share, women prisoners constitute roughly 4 percent while men make up the remaining 96 percent. Jail No 6 in Tihar houses women prisoners where the number of women under-trial prisoners constitute roughly 85 percent of the total.

Report on workshop on Prisoners under Arrest or Awaiting Trial organised by the Commonwealth Human Rights Institute discussed the various rules and rights that prisoners under arrest or awaiting trial are entitled to and the guidelines for non-official visitors will be referred to as ‘untried prisoners’. Unconvicted prisoners are presumed to be innocent and shall be treated as such. Untried prisoners shall be kept separate from convicted prisoners and shall sleep singly in separate rooms. Young untried prisoners shall be kept separate from adults and in principle be detained in separate units.

The status of congestion in the jails at present is amply brought out by the following data in 2018 (Prison Statistics in India, 2018, National Crime Records Bureau). The all-India average rate of occupancy is 117.6%. More seriously, the figures are 176.5% in Uttar Pradesh, 157.3% in Sikkim, 154.3% in Delhi, 153.3% in Chhattisgarh, 149% in Maharashtra and 143.5% in Meghalaya. At such a level of overcrowding, basic requirements to maintain hygiene cannot be provided, and social distancing mandated to deal with the pandemic cannot be implemented. In such a situation the infection could spread at an unimaginable pace.

So far as women held in protective custody are concerned, according to the women's rights advocates and human rights lawyers, the majority are rape victims. Because of the stigma that an Indian woman suffers if she has been raped, the authorities apparently fear that the victim will not show up in court to testify against her rapist. Accordingly, she is imprisoned to make certain that she is available to testify at trial.

The report of the Expert Committee, which was published in February 1988, also discussed the torture and rape that women endured in the custody of the police en route to prison. As for the female non-criminal lunatics, the conditions that they endure in prison were described as the worst of all.

The notion of prison discipline was to make imprisonment a deterrent. Consequently, hard punitive labour with no regard for the human personalities and severe punishments were the main basis of prison treatment. More than 40 prison offences have been listed in the jail manuals of many States and any infraction was visited by harsh punishments. Gradually, the objective of imprisonment changed from mere deterrence to deterrence and reformation. This led to the abandonment of some of the severe forms of punishments and introduction of a system of awards for good work and conduct in the form of remission, review of sentences, wages for prison labour, treatment in open conditions, parole, furlough, canteen facilities etc.

Today, prison is treated more as a correctional or improvement facility which itself indicates that there is more emphasis on reformation of prisoners in the process of punishment. To achieve this goal, a congenial atmosphere is required to be created in jails for the benefit of inmates. Apart from emphasis on social and ethical values for integration with society after release, inmates also require educational, recreational and vocational training facilities.
The International Covenant on Civil and Political Rights (ICCPR) remains the core international treaty on the protection of the rights of prisoners. India ratified the Covenant in 1979 and is bound to incorporate these provisions into its domestic laws and state practices. The International Covenant on Economic, Social and Cultural Rights (ICESR) states that prisoners have a right to the highest attainable standards of physical and mental health. Apart from civil and political rights, the so-called second generation economic, social and human rights as set down in the ICESR also apply to the prisoners.

Prison is a State subject under List-II of the Seventh Schedule in the Constitution. The management and administration of Prisons falls exclusively in the domain of the State Governments, and is governed by the Prisons Act, 1894 and the Prison Manuals of the respective State Governments. Thus, States have the primary role, responsibility and power to change the current prison laws, rules and regulations governed by a number of statutes and codes.

Despite the relatively low number of persons in prisons as compared to many other countries in the world, there are some very serious problems in prisons across India. These are: overcrowding, prolonged detention of under-trials, unsatisfactory living conditions, staff shortage and poor training, corruption and extortion, inadequate social reintegration programmes, poor spending on healthcare and welfare, lack of legal aid.

The Model Prison Manual 1960 is the guiding principle for prison management in India. On the lines of the Model Prison Manual 1960, the Union Ministry of Home Affairs, in 1972, appointed a working group on prisons. It brought out in its report the need for a national policy on prisons. It also made an important recommendation with regard to the classification and treatment of offenders and laid down certain principles.

The Model Prison Manual 2016 was finalised with the approval of the Home Ministry and circulated to all States and Union Territories for their guidance. The new manual aims at bringing uniformity in laws, rules and regulations governing prison administration and management of prisoners all over the country. Its key features include an emphasis on prison computerisation, special provisions for women prisoners, focus on after care services, prison inspections, rights of prisoners sentenced to death, repatriation of foreign prisoners, enhanced focus on prison correctional staff, to name a few.

Many developed countries, like Finland which is a pioneer in the open jail concept, have introduced open prisons. There are no bars or no uniforms. Instead of old style cells, there are rooms with bed, neat toilets, kitchen, televisions, etc. Prisoners go for long walks, tend the garden, and more importantly they are paid reasonably for their work. The advantage is that it makes detainees better prepared to return to society. The management cost of such prisons is 33 percent lower than the traditional prisons. Hoshangabad, in Madhya Pradesh has an open prison built on 17 acres of land, where convicts during the last two years of their sentence are transferred from other prisons in the State to make them familiar with reformed environs. Prisoners go out for work daily like normal people do from their homes and return at the end of the day.

Though various bodies have studied the problems of prisons in India and laws are made for improving jail conditions, it is a fact that many problems plague Indian prisons. In many cases, prisoners come out of jails as hardened criminals more than as reformed wrong doers willing to join the mainstream social processes. The emphasis on correctional aspect needs to be strengthened through counselling programmes by experts. The mindset of the prison staff must change. The management of prisons must be marked by discipline and due regard to the human rights of prisoners.

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Frontier
Vol 56, No. 17-20, Oct 22 - Nov 18, 2023