This article is written by Saloni Maheshwari and Surbhi Agrawal, 5th year BA.LLB students from DES Navalmal Firodia Law College, Fergusson Campus, Pune.
“It is not the prisoners that need reformation, it is the prisons” – Oscar Wilde
Introduction
Prison is where the criminal equity framework put its whole expectations. The correctional mechanism, if falls flat will make the entire criminal methodology futile. The regulation behind discipline for a crime has been changed considerably by the advancement of new human rights statutes. The idea of transformation has turned into the watchword for prison organization. Human rights statutes advocate that no crime ought to be punished in a pitiless, corrupting or in a cruel way. Despite what might be expected, it is held that any discipline that adds up to remorseless, humiliating or brutal ought to be dealt with as an offence by itself. The change caused to the criminal equity framework and its correctional mechanism has been embraced around the world and question of incorporation of the same in Indian scenario remains unanswered.
Internationally, it turns into an all-round acknowledged decision that the correctional mechanism in criminal equity organization ought to agree to reformative arrangements. It is likewise announced that all prisoners might be approached with deference because of their innate respect and incentive as human beings. There is an arrangement of rights distinguished by the international legal framework to spare the human poise and estimation of prisoners and thereby the reformative topic of rectification. It is additionally emphatically contended that the group can never endure a plan of adjustment that does not keep up an association with the evilness of the crime done. This discipline dependably keeps up a subjective point of view. The privileges of the imprisoned individuals must be perused regardless of this observation. It is genuinely implied that there can be changed disciplines for the same offence; however, one ought not to be dealt awfully while the sentence once pronounced by the Court goes on. In this domain, the rights ensured under the international legal framework are to be investigated and are to be incorporated in India.
Concept of Prison
Prisons serve as an arm of criminal justice system to punish the deviant behavior of a miscreant.
John Locke, the great English political theorist of seventeenth-century expressed that men were basically good, but laws were still needed to keep down ‘the few desperate men in society’.
The Online Oxford English dictionary defines prison as, “A building to which people are legally committed as a punishment for a crime or while awaiting trial”[1]. In our country “Prison” falls under State subject in List II of the Seventh Schedule to the Constitution of India. The administration of Prisons falls under the ambit the State Governments and is administered by the Prisons Act, 1894 and the Prison Manual of the respective State Governments. Thus, States have the preliminary responsibility and authority to change the current prison laws, rules and regulations.
Importance of Prisons
The presence of prisons in our general public is an antiquated wonder since Vedic period where the counter social components were kept in a place recognized by the rulers to secure the general public against wrongdoing. Prisons’ were considered as a ‘Place of Captives’, the place prisoners were kept for retribution and discipline. At first, there was a conviction that detachment and custodial measures would change the guilty parties but gradually it is being substituted by the advanced idea of social defence. Various issues concerning prisons are recognized by government and specialists from time to time.
Justice V.R. Krishna Iyer has rightly observed: “In our world prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from drift-wood juveniles to heroic dissenters”[2]
Today prisons serve mainly three purposes, which may be described as custodial, coercive and correctional. Prison as a place of correction historically is developing in conception.
Earlier prisons served only the custodial function, where an alleged offender could be kept in lawful custody until he could be tried and if found guilty, punished.
The Digest of Justinian, in Roman law, established the custodial principle with the statement that “prison is for confinement, not for punishment”[3]. The coercive function means that imprisonment may be used to command a person to comply with an order made by the Court of law, whether civil or criminal; if he complies, he is released.
The purpose of prison can be clearly said to be as that of the imposition of punishment, rehabilitation of the prisoners and protection of prisoners.
Background
The cutting-edge prison in India began with the Minute by TB Macaulay in 1835. A committee to be specific Prison Discipline Committee was delegated, which presented its report in 1838. The committee prescribed expanded thoroughness of treatment while dismissing every single philanthropic need and changes for the prisoners. Following the proposals of the Macaulay Committee between 1836-1838, Central Prisons were developed from 1846.
The contemporary Prison organization in India is consequently a heritage of British run the show. It is in view of the thought that the best criminal code can be of little use to a group unless there is great hardware for the curse of disciplines. In 1864, the Second Commission of Inquiry into Jail Management and Discipline made comparative suggestions as to the 1836 Committee. In addition, this Commission made a few recommendations with respect to convenience for prisoners, improvement in diet, clothing, bedding and therapeutic care.
In 1888, the Fourth Jail Commission was designated. On the premise of its suggestion, a consolidated prison bill was formulated. Arrangements with respect to the jail offences and discipline were exceptionally analyzed by a meeting of specialists on Jail Administration. In 1894, the draft charge moved toward becoming law with the consent of the Governor General of India.
The Prisons Act, 1894 is the only consolidated framework with regards to jail management and administration which operates across all parts of India. This is an antediluvian act which operates without any amends to it. This act, however, failed to resolve certain issues. The loopholes in the act were subsequently addressed in the report of the Indian Jail Committee 1919-1920 pertaining to the rehabilitation and reformation of offenders, which were recognized to be as the key objective of prison administrator.
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Indian Jail Reform Committee
In the year 1919-20, the Indian jail reform committee, appointed to suggest prison reforms was headed by Sir Alexander Cardew. The committee took a stand on an international perspective after observing the condition of prison across the globe and laid down an inference that prisons should not only have a deterrent effect but also have a reformative approach. The committee emphasized the need for a reformative approach to prison inmates and dejected the use of corporal punishment in jails. It suggested the utilization of an inmate in productive activities. The Committee underlined the need for aftercare programs for the released prisoners for the purpose of rehabilitation.[4]
As a measure of prison reform, the Jail Committee further suggested that the maximum intake capacity of each jail should be set, depending on its shape and size. In the meantime, there was an outcry for retention of solitary confinement as a method of punishment.
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Government of India Act, 1935
The Government of India Act,1935 is an important legislative framework which resulted in the transfer of the subject of jails from the Center list to that under the control and administration of provincial governments. This further condensed the possibility of a uniform prison policy at a national level. Thereafter the States started having their own prison policies, rules and procedure.
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The Reckless Report, 1951
The Government of India invited the United Nations expert on correctional work, Dr. Reckless in the year 1951, to embark a study on the prison administration and to recommend policy reforms. He made a plea of transforming jails into reformation centers through this report titled “Jail Administration in India”. Furthermore, he also laid emphasis on modification to be made in the outdated manuals.
International Legislations
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The Universal Declaration of Human Rights
The General Assembly of the United Nations started a movement in the form of the Universal Declaration of human rights in the year 1948. It lays down principles of administration of justice. Following are few important provisions which have been embedded in the draft-
(1) No one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment.[5]
(2) Everyone has the right to life, liberty and security of person.[6]
(3) No one shall be subjected to arbitrary arrest, detention or exile.[7]
(4) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.[8]
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The International Covenant on Civil and Political Rights (ICCPR)
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 its provisions into domestic law and state practice.[9]
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The International Covenant on Economic, Social and Cultural Rights (ICESR)
The International Covenant on Economic, Social and Cultural Rights (ICESR) states that prisoners have a right to the highest attainable standard of physical and mental health.[10] Apart from civil and political rights, the so called second-generation economic and social human rights as set down in the ICESR also apply to the prisoners.
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Declaration on Protection from Torture, 1975
The UN General Assembly by consensus adopted a declaration on the protection of torture. This declaration acts in tandem with the human rights principles of an individual and protects that person from any kind of torture, or inhuman and cruel behaviour.[11]
The UN standard Minimum Rule also made it mandatory to provide separate residence for young and child prisoners from the adult prisoners. Subsequent UN directives have been the Basic Principles for the Treatment of Prisoners (United Nations 1990)[12] for the Protection of All Persons under Any Form of Detention or Imprisonment (United Nations 1988)[13]
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Convention against Torture and other Cruel, Inhuman or Degrading Treatment
The UN Assembly adopted, a document called Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment wherein the responsibility is shouldered on the state to take steps for effective judicial, legislative and administrative methods. Further, it clearly lays down the rules for interrogation and certain other instructions have been enumerated.[14]Though this is a concrete piece of legislation but unfortunately India has yet not ratified to it.
International Best Practices[15]
India is no less, no way behind in promoting prison reforms and incorporating them into practice but some practices which are laudable and can be easily adopted by India are mentioned under-
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TeleMedicine Technology
Tele-medicine is a practice where two health professionals, or a health professional and a patient, are in long-distance communication with each other. This may be helpful in cases where it is difficult to transport prisoners, or in far-away rural prisons, or in difficult-to-reach places. Tele-medicine can provide improved security, personal safety, cost savings and access to specialists, which might otherwise be impossible.
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Prison and Probation Ombudsman (Grievance Redressal)
A specialized inspection of prisons takes place every year in the UK. A routine Government follow-up takes place every year. This makes for greater accountability and increased system transparency.
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Yellow Ribbon Project (Community Involvement)
The goal of the yellow ribbon project is to reintegrate and rehabilitate prisoners. It involves prisoners voluntarily giving up all gang associations (including having tattoos removed). Part of the challenge prisoners faces after being released is that of the social stigma of having been in prison. Its objectives are:
(a) Creating awareness of the need to give ex-offenders a second chance;
(b) Generating acceptance of ex-offenders and their families in the community;
(c) Inspiring community action to support the rehabilitation and reintegration of ex-offenders.
Indian Committees and Acts
During the post-independence era various committees and acts have been constituted to tackle the problems relating to prison administration in India. The following entails brief insight into all the important committees and acts.
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All India Jail Manual Committee
The Government of India in the year 1957 accorded its assent to appoint All India jail manual committee to prepare a model prison manual. The committee laid down its submission in the year 1960. The report made forceful pleas for formulating a uniform policy and latest methods relating to jail administration, probation, aftercare, juvenile and remand homes, certified and reformatory school, borstal schools and protective homes, suppression of immoral traffic, etc. Moreover, the report suggested amendments in the century old Prisons Act of 1894 to provide a legal base for correctional work.
The committee prepared the Model prison manual and presented it to the Government of India in 1960 for its implementation. The manual is the basis on which the current Indian prison management is regulated. The Model prison manual paved way for the Ministry of home affairs, Government of India in the year 1972, to appoint a working group on prisons.
In 1972, the Ministry of Home Affairs, Government of India, appointed a Working Group on Prisons which presented its report in 1973[16]. This Working Group brought out in its report the need for a National Policy on Prisons. Its salient features are as under: –
(1) To make effective use of alternatives to imprisonment as a measure of sentencing policy.
(2) Emphasized the desirability of proper training of prison personnel and improvement in their service conditions.
(3) To classify and treat the offenders scientifically and laid down principles of follow-up and after-care procedures.
(4) That the development of prisons and the correctional administration should no longer remain divorced from the national development process and the prison administration should be treated as an integral part of the social defence components of the national planning process.
(5) Identified an order of priority for the development of prison administration.
(6) The certain aspects of a prison administration are included in the five-year Plans.
(7) An amendment to the Constitution be brought to include the subject of prisons and allied institutions in the Concurrent List, the enactment of suitable prison legislation by the Centre and the States, and the revision of State Prison Manuals be undertaken.
In 1980, the Government of India set-up a Committee on Jail Reform, under the chairmanship of Justice AN. Mulla. The basic objective of the Committee was to review the laws, rules and regulations keeping in view the overall objective of protecting society and rehabilitating offenders. The Mulla Committee submitted its report in 1983[17]. The All India Jail Committee focuses on bringing equilibrium between States and Union territories on the legal framework concerning prison administration.
The Committee suggested setting up of a National Prison Commission as an enduring body to bring about modernization of prisons in India. The Committee also made a proposition that the existing dichotomy of prison administration at Union and State level should be removed. It recommended a total ban on the atrocious practice of associating together juvenile offenders with hardened criminals in prisons. The Committee also recommended separation of mentally disturbed prisoners and their placement in mental asylums. Another recommendation of the Jail Committee was a vis-à-vis classification of prisoners on the scientific and rational basis[18].
Some of the prominent recommendations of the Mulla Committee are:
- The condition of prisons should be improved by making adequate arrangements for food, clothing, sanitation, ventilation etc.
- The prison staff should be properly trained and organized into different cadres. It would be advisable to constitute an All India Service called the Indian Prisons &Correctional Service for recruitment of Prison officials.
- After-care, rehabilitation and probation should constitute an integral part of prison service. Unfortunately, probation law is not being properly implemented in the country.
- The media and public men should be allowed to visit prisons and allied correctional institutions periodically so that public may have first-hand information about conditions inside prisons and be willing to co-operate with prison officials in rehabilitation work.
- Lodging of undertrials in jail should be reduced to bare minimum and they should be kept separate from the convicted prisoners. Since under trials constitute a sizable portion of the prison population, their number can be reduced by speedy trials and liberalization of bail provisions.
- The Government should make an Endeavour to provide adequate resources and funds for prison reforms [19].
The Government of India in the year 1987 appointed the Krishna Iyer committee to carry out a study on plight of the women prisoners in India. It has recommended the induction of more women in the police force with a view of their special role in controlling women and child offenders. The committee submitted its report in the year 1988 to the Government of India.
Subsequent Developments
The Supreme Court in Ramamurthy vs. State of Karnataka[20] laid directions to bring about a unified national consolidated framework on prison laws and to prepare a draft model prison manual, subsequently a committee was set up in the Bureau of Police Research and Development (BPR&D).
In 1999, a Draft Model Prisons Management Bill was circulated to replace the Prisons Act, 1894 by the Government of India but the bill is still limping to find its place.
The All India Committee on Jail Reforms (1980-1983), the Supreme Court of India and the Committee of empowerment of women (2001-2002) have all pressed on the need for a comprehensive revision of the prison laws but the process of revision and implementation have a remorseful future.
Prisoners Rights
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Constitutional Provisions
The rights of all human beings are safeguarded by our constitution. Ironically, the prisoners are treated differently; not par with non- prisoners and their rights are denied and neglected.
This is a major concern which needs to be addressed to protect the edifice of the constitutional provision. The Supreme Court in its various judgments has declared prisoners as a natural as well as a legal person. It is the responsibility of the Courts to protect these détentes from torture, harassment and provide them with justice.
(a) Right to life and personal liberty
Right to life is much more than mere physical existence. Furthermore, the Supreme Court has widened its horizon while interpreting Article 21 of the Constitution by the inclusion of right to life with human dignity. Mere animal existence is not the criteria. The Supreme Court held that right to life is one of the basic human rights, guaranteed to every person by Article 21 and not even the State has authority to violate it.
(b) Right to health and medical treatment
The Supreme Court in various cases has declared the right to medical care comes under the ambit of Article 21 of the Constitution.
It imposes an obligation on the state to preserve life. This right is a basic human right. But we still find instances where the prisoners’ health is neglected, and no proper healthcare facilities are accorded. This can be clearly termed as a violation of one’s fundamental rights by the state. The state has a moral duty cast upon it to preserve and protect the life of the ailing convicts.
(c) Right to a speedy trial
The Supreme Court has considered the right to a speedy trial as one of the essential ingredients of Article 21 of the Constitution. Delay in the disposal of cases is a denial of justice, so the Court is expected to adopt necessary steps for expeditious trial and quick disposal of cases.[21] The Supreme Court has stated guidelines for affecting the right to a speedy trial but unfortunately, it has ignored the time frame for the trial of these offences. The right to a speedy trial can be demanded by the accused at any time during proceeding i.e. investigation, inquiry, and appeal and so on. The time limit for the offence changes with various circumstances. The Court comes to conclusion in the interest of natural justice that when the right to speedy trial of an accused has been infringed the charges of the conviction shall be quashed.[22]
The unreasonable detention of the prisoners is clearly violative of Article of 21. The constitutional guarantee of speedy trial is an important safeguard to prevent undue and oppressive incarceration prior to trial; to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delays will impair the ability of an accused to defend him.
(d) Right to free legal aid
Right to free legal aid is one of the facets of Article 21 of the constitution which casts a duty upon a state to provide legal recourse. The State is under a constitutional mandate to provide legal redressal to the ones who are unable to afford it. The state cannot sway away from its liability on the ground of unavailability of funds and deformities in administration.
The only pre-condition for providing free legal aid is that the accused who is charged with an offence, the conviction of that being imprisonment, and the social need requires that he been given free legal aid. But there may be some cases such as economic offences, prostitution, where social justice requires that the accused must not be given free legal aid. The prisoners should also have access to legal justice without any interference from the prison authority. Any arbitrary procedure to regulate the interviews between the prisoners and the legal advisor is completely unjustified. Regarding the right of free legal aid, Justice Krishna Iyer declared that “this is the State’s duty and not Government’s charity”. If a prisoner is unable to exercise his constitutional and statutory right of appeal including Special Leave to Appeal for want of legal assistance, the Court will grant such right to him under Article 142, read with Articles 21 and 39A of the Constitution.[23]
(e) Right to reasonable wages for work
The notion behind the payment of reasonable wages to the prisoners for the work is that it will create a healing effect on the minds of the prisoners. It is not only the legal right of a workman to have wages for the work, but it is a social imperative and an ethical compulsion.
The wages should be equitable to fulfil the objective of rehabilitation of the prisoner and the compensation to be paid to the victim. Fair and equitable wages if not paid would result in bonded labour and further would violate the fundamental right enumerated in Article 23 of the Constitution. In order to decide the quantum of wages to be paid to the prisoners, the state should constitute a wage fixation body and allow suggestions and recommendations from that body.
(f) Directive Principles of State Policy
Article 39A of the Constitution of India deals with the obligation of the State to provide free Legal Aid to such accused prisoners both in the prison and outside, as are unable to engage a lawyer due to lack of means to defend themselves in the Court for the criminal charges brought against them.
The bail ought to be allowed to the persons when there is no sensible worry with respect to the accused that he will flee and will evade the appearance under the steady gaze of the Court. Bail can be an extremely helpful apparatus for mingling a detainee. In addition, the bail candidate should have the capacity to set up his protection more productively than one who stays in jail custody. This advances the social and open equity as well as maintains a strategic distance from the extensive open costs in keeping the under trial in custody, where no threat or unsettling influence or vanishing on the substance of the record.
Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served and accommodation of suitable nature.
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Right against Arbitrary prison punishment
In the Right against Arbitrary prison punishment, the prisoner has a right to entitlement in case of disciplinary violation to have precise information as to the nature of violation of prisons Act and Rules, to be heard in defense, to communication of the decision of disciplinary proceedings and to appeal to the Inspector General of Prisons as provided in the rules under the Act.
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Right to leave and special leave (Furlough and Parole)
Right to leave is matter of right of the prisoners granted only after a condition prescribed in various manuals, acts etc. Ironically there is no national framework which prescribes the number of days for which the parole or furlough is to be granted. The grant of parole is discretionary in nature and depends on the facts and circumstances of each case.
Special Treatment
The law extends its protection to the most vulnerable section of the society, i.e. the youth and women offenders who are in actual need of security, safety.
The element of security and safety in the lockups, prisons have to be given it due accord while considering the female suspects.
Further, the Court directed that the concerned prison authorities should take into consideration before sending the prisoner to jail that all reasonable facilities of ensuring pre- natal and post-natal care for the mother and the child are provided.
The children of the women prisoners should be provided with facilities of health care, education and recreation. Facilities such as crèches, foster homes can add to the better care and custody of the child.
The youth offenders if kept with the adult offenders will impact the mindset of these youth.
It is very important to keep in mind, is that the younger the offender the greater the care he needs and the more tactful and sympathetic has to be his handlings.[24] The young offenders should be sent to borstal school where the young offenders are endowed with opportunities of educational and vocational training to reform them. These schools can be precisely described as “Reformative schools”. The facility of foster care also has to be given an impetus to enhance the reformation in the youth offender.
Approaches
The prisoners are human beings like us. The society still looks down upon them. They are socially outcast from every sphere of society. It is not only the prisoners’ reformation which is required but most importantly it is the mindset of the society which needs reformation. If the society neglects it then it fails to accord equal status to human being irrespective of various terms. Society, as an important institution, endeavours the development of an individual. The aftercare programmes will give an impetus to the growth and development of an offender. Community basis participation will help the offender to interact with the community and to pace his degree of rehabilitation and reformation.
The mechanism for achieving this revolution in approach to prisons is to confer responsibility for education and freedom to design their own curriculum. Education will be a key part of prison life. The educational approach will not only help the illiterate ones but also the literate ones. Incarceration should not act as a hindrance in the overall development of the personality of the offender. The prisoners should be provided with ample opportunities to pursue his education and furthermore if any training or special teaching is required for pursuing; the same should be made available. The Universities should collaborate with prison authorities and can start ahead with distance learning programs, degree courses, etc. so that the prisoners do not feel differentiated from being a citizen who has right to education.
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Reformative and Therapeutic Approach
India still holds and believes in its spirit, the reformative theory of punishment. The reformative approach is a holistic one and focuses on reforming the individual through various channels. This approach has been devised to reform the individuals to repent for a crime committed and it works as a device of self- realization of one’s mistake. Furthermore, the therapeutic approach deals with the offender being under the continuous supervision and care of the counsellor or the psychoanalyst. In this way, the prisoner will share his grievances and his behaviour will be understood in a clear manner. The alternative of meditation can help achieve mental peace to the prisoners, it can be sought to construe as a channel of relief for them. This approach merely revolves around the concept of mental study of the human mind. The concept of psychological analysis is briefly discussed as under
Psychoanalysis is a school of psychology founded by Sigmund Freud. This school of thought emphasized the influence of the unconscious mind on behaviour.
Freud believed that the human mind was composed of three elements:
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The id – The id consists of primal urges
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The ego – The ego is the component of personality charged with dealing with reality.
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The superego – The superego is the part of personality that holds all the ideals and values we internalize from our parents and culture.
Freud believed that the interaction of these three elements was what led to all the complex human behaviors. Freud’s school of thought was enormously influential, but also generated considerable debate. This controversy existed not only in his time but also in modern discussions of Freud’s theories.[25]
Recreational activities should be given equal impetus. These activities include outdoor activities like sports, cultural programs, handling prison industries. The prisoners who are interested in developing a career through these activities should be supported. These activities not only would develop prisoners’ physique but would refresh his mental state and would serve as a break from the tiresome work and would imbibe in him a spirit of sportsmanship. The inclination towards the literature should be given due consideration by making available various books on self-help, motivation, novels, etc. The library should be available 24*7 to the prisoners. The most innovative is the idea of setting up souvenir shops and handling the prison business; this would not only serve as an activity but would also generate income for the prison.
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Alternatives to Punishment
Parole is thus a grant of partial liberty or lessening of restrictions to a convicted prisoner, but released on parole does not, in any way, change the status of the prisoner. Parole is a penal device which seeks to humanize prison justice. It enables the prisoners to return to the outside world on certain conditions. The main objects of the parole as stated in the Model Prison Manual are:
- a) To enable the inmate to maintain continuity with his family life and deal with family matters
- b) To save the inmate from the evil effects of continuous prison life.
- c) To enable the inmate to retain self-confidence and active interest in life.[26]
Fines are a common punishment for an assortment of violations, particularly for less serious offences committed by first-time offenders. Offences that are normally rebuffed with fines incorporate minor drug possession, fish and game violations, traffic violations, first-time drunken driving cases. In more serious offences or where the litigant has a criminal record, many judges combine fine with other punishment, for example, detainment, community service, suspended sentence and probation.
As another option to detainment, a judge can issue a suspended sentence where he or she either forgoes passing on a sentence or settles on a sentence yet avoids doing it. This is by and large saved for less serious offences or first-time offenders. Suspended sentences can be unconditional or conditional.
Another alternative to prison is probation. Like a suspended sentence, probation discharges a defendant back into the community, but he or she does not enjoy the same level of freedom as a normal citizen. Courts normally allow probation for first-time or low-risk offenders. Statutes decide when probation is conceivable, yet it is up to the condemning judge to decide if to really allow probation.
Probation accompanies conditions that confine conduct, and if the probationer disregards one of those conditions, the Court may repudiate or change the probation. Courts have a great deal of watchfulness while probation conditions.
Restitution is like a fine, but the payment made by the culprit goes to the victims of that crime rather than to the Court or municipality. This was suggested in the 78th Law Commission Report[27]. Judges usually order restitution in cases where victims endured some sort of monetary loss due to the crime committed. The payment is intended to make the victims whole and restore them financially to the point they were at prior to the commission of the crime.
For example, a litigant who harmed the victim in a fight might be asked to pay the victim for his medicinal expenses.
Judges can condemn litigants to perform unpaid community work called “community service” to compensate an obligation to society for having committed the offense. The litigant might be required to perform community service notwithstanding getting some other type of punishment, for example, probation, a fine, or compensation.
Certain sort of offences and offenders may qualify for programs that bring about having charges rejected if the respondent completes indicated conditions. It can be called diversion or deferred adjudication; these projects take out the respondent from the common procedure of indictment so he or she can complete certain conditions. When he or she is done, either the prosecutor or the Court expels the charges.
The objective of diversion programs is to permit a litigant a chance to show that they are fit to act responsibly, and this method is commonly used for drug offences or first-time offenders. Normally the conditions imposed include counseling or probation.
Problems
The Supreme Court, in its landmark decision in Ramamurthy v. State of Karnataka[28] has identified nine major problems which need immediate attention for implementing prison reforms.
The Court observed that the present prison system is affected with major problems of-
India’s prisons are overcrowded with an occupancy ratio of 14% more than the capacity of the prisons. Due to severe overcrowding in these prisons, the segregation of serious criminals and minor offenders has turned out to be difficult, which can, in turn, cause bad influence over minor offenders. They might turn into professional offenders due to their continuous contact with hard criminals. Prisons in India have a sanctioned strength of 49030 of prison staff at various ranks, of which, the present staff strength is around 40000.
According to what statistics represent, 67% of the people in Indian jails are undertrials. Under trials refer to those people who are detained in jail amid trial, investigation or inquiry yet not indicted of any crime in the Court of law. The share of the jail populace anticipating trial or sentencing in India is commendably high when compared to other countries.
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Torture and Ill-treatment
The prisoners including the undertrials are forced to do severe labour without any remuneration and treated with utmost torture and are made to do rigorous work which is barred by law. There has been a continuous rise in the custodial deaths due to torture and ill-treatment towards prisoners in jail. Women prisoners are more vulnerable to abuse.
While 33% of the aggregate prerequisite of jail authorities still lies vacant, right around 36% of opening for regulating officers is yet unfulfilled. The ratio between the prison staff and the prison population is approximately 1:7. It means only one prison officer is available for 7 prisoners, while in the UK, 2 prison officers are available for every 3 prisoners.
Without adequate prison staff, overcrowding in the prisons prompts widespread savagery and other criminal exercises inside the prisons.[29]
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Neglect of Health and Hygiene
The prisoners in India suffer from severe unhygienic conditions, lack of proper medical facilities and consistent risk of torment and misuse. Women prisoners suffer more in these prisons due to lack of hygiene facilities. It may be at the time of their pregnancy or other complications.
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Insufficient food and Inadequate clothing
Food and clothing provided in the prisons are barely enough to survive. It is inadequate and insufficient for the prisoners which lead to harsh effects on their health.
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Deficiency in Communication
The prisoners are left to live in isolation without any contact with the outside world, their family members and relatives. They remain uninformed about the lives and wellbeing of their family.
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Management of Open-Air prisons
It becomes very difficult to manage open-air prisons due to the prevailing overcrowding scenario in the prisons, staff crunch and weak management in prisons.
Lack of inspection and crude usage of oversight mechanisms transform prisons intro startling wrecks with poor living conditions. This rot in the criminal justice framework affects the psychological condition of the prisoner. It causes adverse psychological effects such as depression, claustrophobia, anxiety and panic attacks, stress etc. it makes the prisoner more vulnerable than before to criminal penchants. The prisoner leaves the prison more demolished than improved.
Another issue confronting the Indian justice system is the absence of transparency. It is seen that the Right to Information (RTI) Act is thoroughly out of the ambit of the legal framework. Hence, in the working of the judiciary, the significant issues like the nature of equity and responsibility are not known appropriately.
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Disparity in Laws and Dispensing Justice
It is evident that disparity exists in the implementation and application of the law. There is a lack of uniformity in the remission laws governing each state. The quantum of punishment differs at varied length.
Remedies
The remuneration given to the prisoners should be enough to suffice their sustainable living.
The prisoners languishing in jail should be given legal aid at the earliest by accelerating the pace of the criminal justice system.
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Separation of Under Trials, women offenders, first-time offenders and youth offenders
Under trials are usually people who haven’t been convicted of the offence yet and such prisons should be kept in a separate prison cell, away from hardened criminals so that they do not get influenced by such offenders.
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Increasing to number of prisons
To deal with the problem of overcrowding the number of prisons should be increased in the country and prisoners should be transferred from overcrowded prisons to prisons where there are prisoners are sparse. People should be appointed with such management skills that are required to deal with overcrowding. Imprisonment should not be the punishment but should be substituted with high penalty in case of petty offences.
The transparency in the judicial system should be increased to understand the actual scenario in the prisons. Transparency can be brought by NHRC inspections and Court mandated inspections and mainly the follow up of these would serve the purpose.
Suggestions
- Touch-screen Kiosk Application: There are numerous touch-screen kiosks around the prison for prisoners to use. At these kiosks’ prisoners can access their PDR, remission earned, prisoner property and cash details, parole/furlough application status, transfer status and under-trial detention alarm. Most prisoners are literate, but those, that are not, can get education classes inside the prison, including how to read and write in English.
- A mobile complaint box should be installed outside the prisoner’s cell to ensure the problems of the prisoners are taken into consideration. The key to such should be only with the bodies which will inspect the prison.
- The prison waste which is collected should be turned into a biofertilizer and sold to various companies and the profit should be shared with the prisoners.
- Mentally ill should be accommodated in the psychiatric wing if such wing exists in the prison hospital, or he should be sent to the nearest mental hospital for treatment. Further, if the prisoner fails to recover from mental illness even after completing half of the maximum term of conviction, the State Government should consider his case for release.
- Campus placements to the ones who have completed their education in the prisons.
- Prisoners Welfare Fund with Government contribution shall be created in all the States to undertake various welfare measures for Discharged Prisoners and their families.
- To set up a State Board of Visitors to visit prisons at regular periodicity and to report on conditions prevailing in the prisons for consideration of the State Government;
- Sanitation and hygiene: Some of the important recommendations in this area are properly equipped laundries for washing, disinfecting and fumigating clothes and beddings; ratio of latrines should be 1:7 prisoners; cubicles for bathing at the rate of 1:10 prisoners; covering of open gutters in prisons; inspection of every prison by the local Public Health Officer periodically.
- Inspection shall be carried by the advisory body at regular intervals without interference from the prison authorities. The prison administration should be brought under the ambit of the Right to Information, Act 2005.
- Use of Technology: For people on parole and for first-time offenders, it would be better if, instead of imprisoning them, the State could simply put an ankle tracker on them and provide them with a relative degree of freedom. This would also cost the State far less money to house, feed and care for them. While the state has the technical capability to do this, it does not yet have the system to monitor and ensure that people on GPS software are doing what they are supposed to do.
- Installation of CCTV cameras in the cells.
- Appointment of the Welfare Officer
- Extensive use of Probation Services in deserving cases by amending the appropriate provisions of the Probation of Offenders Act, 1958, adequately strengthening the infrastructure of the Probation Services and arranging sensitization programs regularly for judicial Officers, Prosecuting Officers and Police Officers.
- Insertion of a new Section 357-A in the Cr.P.C, 1973 for the payment of compensation to the victims of crime out of the earnings of the Prisoners under Wage Earning Scheme.
- Amending the existing Section 53 of the Indian Penal Code to include the Community services as one of the punishments prescribed under this Section.
- Amending suitably the existing Section 433 of the Cr.P.C to consider and release under the Advisory Board Scheme the Lifers who offer a good prognosis for reformation and rehabilitation even before the completion of 14 years of actual imprisonment say 8-10 years.
- Allowing NGOs and Philanthropists who are really interested in the welfare of Prisoners liberally in all the treatment programs in Prisons like Classification, Education, Vocational training, Medical and Health care, Sanitation and Hygiene, Recreation Activities etc.
- As per the existing provision, the duties, rights and privileges of Prisoners should be printed in bold letters in vernacular language and pasted at several prominent places inside the Prison to make the prisoner aware of the same. Ahead of this, marquee of the above with picturization may be installed in conspicuous places for better understanding and learning of the prisoners.
- To alleviate the misuse of Adolescent offenders by the Adult Prisoners in Prisons they may be segregated and confined in Borstal Schools (Remand).
- There should be a minimum fixed tenure for the investigating officers to ensure timely completion of investigation and trial.
- Role of National Human Rights Commission should be widened.
Conclusion
Prison is the important wing of administration of crime and criminology in the country. Ironically the research in the development of it is still in infancy. There are many hurdles to cross for the prisons to be a reformative institution than a custodial home of torture. The progress is mainly hindered by factors such as resource allocation, deterrent functions of punishment and rehabilitation approach. Prisons in the country shall endeavour to reform and re-assimilate offenders in the social milieu by giving them appropriate correctional treatment. Though there have been suggestions and recommendations by various committees, the major concern in India stands to be that of actual enforcement.
In conclusion it must not be overlooked that the issue of prison administration and reformation of prisoners is just a piece of the bigger picture of social recovery. The jail organization alone can’t effectively reform the prisoners. It can just try its modest endeavours to set right the prisoners; however, endeavours will succeed only when our economics, education, social institution and values are appropriately coordinated into a cogent and congenial whole in view of the learning of the human establishment.
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[1] “Prisons” <http://Oxforddictionaries.com/definitions/english/prison?q=prison> last seen on 05/10/2019
[2] P Diwan and P Diwan, Human Rights and the Law (Deep & Deep Publications 1996) 169
[3] Heinrich Oppenheimer, “The rationale of punishment” (1970) Core <https://core.ac.uk/display/9063232 > last seen on 5/10/2019
[4] Paranjape NV, Criminology & Penology with Victimology, (Sixteenth Edition, Central Law Publications, 470,479 (2014)
[5]Universal Declaration of Human Rights, 1948, Art 1
[6]Ibid., Art 3
[7]Ibid., Art 9
[8]Ibid., Art 11
[9]U.N. General Assembly, The International Covenant on Civil and Political Rights,1966, Res. 2200, Sess. 22, U.N. Document A/RES/2200XXI available at https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf last seen on 7/10/2019
[10]U.N. General Assembly, The International Covenant on Economic, Social and Cultural Rights, 1966, Res. 2200. Sess. 23, U.N. Document A/RES/2200XXI available at https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf last seen on 7/10/2019
[11]The Declaration on Protection from Torture, 1975, Art 2 and 3
[12] U.N. General Assembly, Res 45/111 (14th December 1990), UN Document A/RES/45/111 available at https://www.unodc.org/pdf/criminal_justice/UN_Standard_Minimum_Rules_for_the_Treatment_of_Prisoners.pdf last seen on 07/10/2019
[13] U.N. General Assembly, Res 43/ 173 (10th December 1984) UN Document A/RES/43/173 available at https://www.unodc.org/pdf/criminal_justice/UN_Standard_Minimum_Rules_for_the_Treatment_of_Prisoners.pdf last seen on 07/10/2019
[14] U.N. General Assembly, Convention against Torture and other Cruel, Inhuman or Degrading Treatment, Res 39/46 (1984), UN Document A/RES/39/46 available at https://redress.org/wp-content/uploads/2018/10/REDRESS-Guide-to-UNCAT-2018.pdf last seen on 07/10/2019
[15]National Consultation on Prison Reform, Report on the National Consultation on Prison Reform, 3-4 April 2010, New Delhi
[16]Amarendra Mohanty, Narayan Hazary, Indian Prison Systems, (Ashish Pub. House, 1990)
[17]Zubair Ahmed, “Jail reforms in India in- A study of Indian jail reform committees” 1 International Journal of Multidisciplinary Education and Research, Page No. 01-04, (2016)
[18]Supra note 2, at 481
[19]Ibid, at 482
[20] Ramamurthy v. State of Karnataka, (1997) S.C.C. (Cri) 386.
[21]Kadra Pahadiya v. State of Bihar, AIR 1983 SC 1167
[22]AR Antulay v. RS Nayak, [AIR 1984] SC 1630, again some directions were passed by SC in the case of Common Cause Society v. Union of India, AIR 1996 SC 1619
[23]MH Hoskot v. State of Maharashtra, (1978) 3 SCC 544
[24] Roy, Joy tilak Guha, Prison and Society, 112 (Gian Publishing House, 1989)
[25] Saul McLeod, ‘Psychodynamic Approach’(Simply Psychology 2013) <https://www.simplypsychology.org/Sigmund-Freud.html> last seen on 08.10.2019
[26] Bhikhabhai Devshi v. State of Gujarat, AIR 1987 SC 136
[27]78th Law Commission of India Report, ‘ Congestion of under trial prisoners in jail’ 78, 1979 available at http://lawcommissionofindia.nic.in/51-100/Report78.pdf last seen on 08/10/2019
[28] Supra 20
[29]Basant Rath, ‘Why We Need to Talk About the Condition of India’s Prisons’(The Wire, 26 July, 2017) available at https://thewire.in/uncategorised/india-prison-conditions last seen on 08/10/2019
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