Prison Reforms

FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA :A LEGAL PROSPECTWE MANOJ KUMAR

A- INTRODUCTION The world of Prison i s no longer secret: Prisons have invited members of the public as volunteers to work with them for years but in the t he last two decades this trend has developed i n an impressive way2. This has helped to know about the prisons, its inmates and their problems. Accordingly, i t is evident that the Indian Prison System i s i n crisis. The dimensions of the problems faced by our contemporary prison system are such as require prompj and effective action3. A concerned Supreme Court recently, ordered the expeditious trial of criminal cases pending for more than five years. It may come as a shock to the Judges who passed the order, that there are under trial in our prisons those have spent 20 years or more behind bars, without actually being convicted4. *I. The author is a Research Research Scholar, Scholar, International International Legal Studies. Jawaharlal Nehru University. New Delhi, India. E-mail: [email protected] 2. Comment, Prison Service Journal. September 2000 No 131. P.l 3. There are 1305 prisons in India (Central Jail 93. District Jail257. Sub-Jall 850, Open Jail-2. Special jail 28. Women jail I?. Borstal Institution-13 and Juvenile and Lunatics Camps-13) having the authorized capacity of 214241. Against thts authorized accommodation the actual prison population is 257235 which is dominated by the large chunk of under trial prisoners 1 e.. 73% This proportion

of under trial prisoners is rapidly rap idly is on increase leading to overcrowding in Jail 20% in 1998 agoinst 9.33% i n 1996. The percentage of women prisoners in total prlson population Is increasing on rapid pace especially in Bihar. Madhya Pradesh. Gujrat. Orissa, Andhra Pradesh. Maharashtre and Mizoram, while inDelhi and Haryena it is slightly declining or static in comparison to the year 1996. The problem of overcrobding in jail Is not uniformly prevailing In all StatesIUTs. However is 3.18%. We have the sancl~oned Strength of 49030 of prlson staff at various ranks out of which the present stalf strength i s ?round 40000. The ralio between the prison staff and the prison populatton is epproxlmately 1:7. It means odly one prison officer is available for 7 prisoners. while in UK 2 prlson officers are available only for 3 prisoners. (Statistical profile of Prisons in India prepared by Bureau of Police Research and Development. Ministry of Home Affairs, Government of India, New Delhi as on 31.12.1998) 4. Ral Atuk Krishana. Nacked Truth: Under trials doing time without convictions. Hindustan Times, New Delhi, April t g . 2001.

of under trial prisoners is rapidly rap idly is on increase leading to overcrowding in Jail 20% in 1998 agoinst 9.33% i n 1996. The percentage of women prisoners in total prlson population Is increasing on rapid pace especially in Bihar. Madhya Pradesh. Gujrat. Orissa, Andhra Pradesh. Maharashtre and Mizoram, while inDelhi and Haryena it is slightly declining or static in comparison to the year 1996. The problem of overcrobding in jail Is not uniformly prevailing In all StatesIUTs. However is 3.18%. We have the sancl~oned Strength of 49030 of prlson staff at various ranks out of which the present stalf strength i s ?round 40000. The ralio between the prison staff and the prison populatton is epproxlmately 1:7. It means odly one prison officer is available for 7 prisoners. while in UK 2 prlson officers are available only for 3 prisoners. (Statistical profile of Prisons in India prepared by Bureau of Police Research and Development. Ministry of Home Affairs, Government of India, New Delhi as on 31.12.1998) 4. Ral Atuk Krishana. Nacked Truth: Under trials doing time without convictions. Hindustan Times, New Delhi, April t g . 2001.

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2. Hence, over crowding i n Prisons, prolonged detention of under-trial prisoners, unsatisfactory living conditons. lack of treatment programmes and allegations of indifferent and even i n human approach of prison staff have repeatedly attracted the attention of the critics over the years This raises an interest to undertake a careful study about the e x ~ s t i n g Indian Laws in relation to Prisons, to conduct a survey on attempts at prison reforms in our country and to analyze activism on the t he subject, with an objective of ensuring the minimum human rights to the Prisonerss as well. B- THE PROBLEM 3. Crime in lndia is showing an increasing trend while there is an decreasing trend in the reported crime, and there is an overall upward trend in Prison Population Comparatively6. This is a matter needs a careful study with wit h regards to crime reported, procedures for investigation, policies of arrests and award of sentences. A majority of the persons l o d g e d i n p r i s o n s consisted of people belonging to the under privileged sections of society7. Majorities of the prison population consist of first offenders involed in technical or minor violations of law. Half of the prison population is under trial,. which is the main reason for over crowding in prisons. Conditions of living in most of the prisons are sub-human. Mass approach towards various problems of prisoners is in vogue. ,

5. It would not be out of place to mention here that accordtng to the UN Global Report

on Crime and Justice. 1999, the rate of imprisonment i mprisonment tn our country IS very low i.e.. 25 prisoners per one lakh of populatlon In compartson to Australta (98 1 prtsoners). In England (125 prtsoners) i n USA (616 prtsoners) and i n Russia (690 prisoners) per one lakh of population A large chunk of prison populatlon ts domtnated by the first offenders say around 90h The rate of offenders and rectdtvlsts tn prison populatton of lndian Jails i s 9:l whtle In U K i t IS I 2. whtch i s qulte revealing and alarmtng 6. Seq, the National Crime Record Bureau. (NCRB) Gazette and Crime In India, prepared by NCRB. Ministry of Home Affairs. Govt. of India, New Delhi. 7. Realities i n indian Prisons Report of the A l l India Committee on Jail Reform 1980-83, VOI-I. Ch. Ill, PP 18-32.

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4. It is shocking to find that all categories of inmates are huddled together in most of the prisons including; women, children and young offenders and adults8. The plight of women, children and young offenders i n prison is really an issue of grave concerne. [nadequate medical services and absence of psychiatric services in prisons. add to the difficulties of prison administration. i n some jails there are mentally ill persons who have not committed any crime. In the other hand, the existing prison buildings are not functionally suitable. 5. Prison industries and work programs are archaic and devoid of any rehabilitative value for inmates. The insertion of section 433-A i n the t he Indian Penal Code (IPC), making mandatory for the life convicts to serve at least 14 years of actual imprisohment before being considered for premature release has jumped their spirits for improving their behavior and work skilllo. There are allegations about prevalent corruption, mal-practices and mal-treatment of prisoners. Trafficking in drugs, use of intoxicants, favoritism, unwarranted use of office, gangsterism, political influence and deprivations are common things in our prisonsf1. There is no effective system or machinery for looking into even the genuine grievances of prisoners1*. There is no proper free legal aid mechanism to help or guide prison inmates on legal matters. The condition of sub jails and police lock ups is extremely deplorable. They are the most neglected institutions of our criminal justice 8. Carlen Pat, Why study women imprisonment. The British Journal of Criminology. Vol. 1994. PP. 131-140. 9. Scaco Anthory M.. Rape i n Prison. Charles C. Thomas publisher (USA), 1075, P. 127.

10. Restriction on Powers of Remission or Commutation in certain cases. Sarkar on Criminal Procedure, by Prabhas C. Sarkar, Indian Law House, New Delhi 1997. PP. 1264-65. 11. Kaushik Rarnaswamy. No relief for over-crowding Tlhar, Hindustan Times. New Delhi, March 18, 2001, P.2 12. Margaret Carey. Towards the Restorative Prison, Prison Service Journal, Sep. 2000, NO-131, PP. 10-11. Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 179

system.13 The organizational structure of the department of prisons i s inadequate and in effective. The administration of prisons i n the country is still governed by the anti-quoted Prisons Act 1894. The provisions of the Act do not meet the needs of the contemporary correctional thinking. 6. There is a lack of coordination among police, . prosectution, judiciary, prison and probation. Any attempt by voluntary agencies to extend their services for the welfare of prisoners is looked upon with suspicion by prison personnel. Scientific approach towards treatment of offenders has not yet to-be accepted and adopted by prison administration anywhere i n India. To be an efficient unit and center for protection and c o r r e c t i o n a l t r e a t m e n t a p r i s o n must e s s e n t i a llybea scientifically manageable unit. Training of prison personnel has remaini.ng woefully neglected in India. This is essential not only for ensuring efficiency, financial discipline and control but alos for minimizing corruption i n departmentq5. Protective and

, correctional objective of prisons can be achieved only when an atmosphere of wholesome opportunity surcharges with a positive value is created i n these institutions and prisons are exposed t o such an a t m ~ s p h e r e ~ . C. PRISON REFORMS I N INDIA : THE HISTORY 7. The contemporary Prison administration in lndia is a legacy of the British rule. I t i s based on the notion that, the best criminal code can be of a very little use to a community 13. Neeta Sharma, Uncured, ignored, behind bars, Hindustan Times, March 18,2001, P.2. 14, Realities in Indian Prison. Report of the All lndia Committee o n ~ a t Reforms, l 1980-83 Vol. 1. Ch. Ill, PP. 18-32 15. Peter M. Carlson. Prison and Jail Admtntstration : Practical and Theory, Ch. 24. corruption of Prison Personnel. An Asper Publication, Gaithersbung, (1999), PP. 171-77 18. Special issue. Standard for Psychology Services in Jails. Prisons. CorPectional Fac~litiesand Agencies. Criminal Justice and Behavior. Vol.. 27. No. 4. PP. 433-494.

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unless there be a good machinery for the infliction of punishments1?. First time, in 1836 reforms at tndian prisons was initiated upon the recommended by Lord Macaulay. A committee namely: Prison.Discipline Committee, was appointed, which submitted i t s report on 1838. The committee recommended increased rigorous of treatment while rejecting all humanitarian needs and reforms for the prisoners. In 1864 the second Commission of Inquiry into Jail Mangement and Discipline was appointed. While recommending in the same liner as the 1836 Committee, the Commission made some specific sugestions regarding accommodation for Prisoners, improvement diets, clothing, bedding and medical care. In 1877 a Conference of Experts met to inquiry into p r i s o n administration. The conference proposed the enactment-of a prison law and a draft bill was prepared. But no attempt has made at legislating the proposed draft bill. In i 8 8 8 , the Fourth J a i l Commiss.ion w a s a p p o i n t e d . O n t h e b a s i s o f recommendation of the Jail Commission of 1888, a consolidated prison bill was prepared. Provisions regarding the Jail offences and punishment were specially examined by a conferences of experts on Jail Management. In 1894 the draft bill become law by obtaining the assent of Governor General of India. It is the Prisons Act, 1894, on the basis of which the present jail Management and administration is operating in Imdia,Even afte; 100 years of the inception, the archaic Prison Act 1894 has hardly undergone any substantial change. However, the process of review of the prison problems in India continued even after this. In the report of lndian Jail Committee-1919-20, for the first time in the history of prisons the reformation and rehabilitation of offenders were i d e n t i f i e d as the objectives of p r i s o n : adminitratiorP8. Though, the report was radical due t o i t s

reformative approach, but could not be implemented due to 17. Deterrence was the basis of the concept of Prison. Vidhya Bhushan, Prison Adrninistrat~on In India. P. 2 0 . 18. Repo!t of lndian Jail Committee - 1919, P. 32.

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the unfavorable political atmosphere that prevailed during that time. 8. The Government of lndia Act-1935 which resulted in the transfer of the subject of jails from Centre List to the control of provincial government and hence further reduced the possibility of uniform implementation of a prison policy at the national level. I n 1951, the government of lndia took an land mark inititatives by inviting the United Nations expert on correctional work, Dr. W.C. Reckless in order to undertake a study on prison administration and to suggest policy reform, Dr. Reckless prepard a report namely, Jail Administration in India. His report made a plea for transforming jails into reformation centers. The revision of outdated jail manuals and introduction of.16gal substitutes was recommended by himtg. In 1952, the Eighth Conference of the Inspector General of Prisons also supported to recommendation of Dr. Reckless regarding prison reform. ~ c c o r d i n ~ i ~ Govt. of lndia appojnted the All lndia the , Jail Manual Committee in 1957 to prepare a model prison manual. The committee submitted its report in 1960. The report made a forceful pleas for formulating an uniform policy and latest methods relating to jail administration, probation, a f t e r - c a r e , j u v e n i l e and remand homes, c e r t i f i e d and reformatory school, borstals and protective homes suppression of immoral traffic etc. The report also suggested amendments i n the Prison Act-1894 to provide a legal base for correctional work. The committee prepared the Model Prison Manual (MPM) and presented it to the Govt. of lndia in 1960 for implementation. The MPM-1960 is the guiding principle, on the basis of which

the present lndiari prison management is being governed. 9. Both the Central Government and St8te Governments undertook various initiatives in connection to prison reforms

19. Revlew of Prison Reform. Report ofbthe All lndia Committee on Jail Reform. 1980-83, Vol. 1. PP. 7-17

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on the lines of the Model Prison Manual. In 1972, the Ministry of Home Affairs, Governent of India, 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 regards to classification and treatment of offenders and laid down prin&ples. In 1980, the Government of lndia set-up a Committee on Jail Reform under the chairmanship of Justice A. N. Mulla. Basic objective of the Committee was to review the laws, rules and regulations keeping in view the overall objective of protecting the society and rehabilitating the offenders. The Mulla Committee submitted thereport in 1983. The Committee has suggested that the existing di-archy of prison administration at Union and State level should be removed20. The Committee specially recommended a total ban on the heinous practice of clubbing together juvenile offenders with the hardened criminals i n prisons. Consequently, a comprehensive legislation has been enacted for the security and protective care of delinquent juveniles. The Committee also suggested segregation of mentally disturbed prisoners to mental asylums21. 10. Again 1987, the Government of lndia appointed, Justice Krishna lyer Committee to undertake a study on the situation of women prisoners in India. It has recommended induction of more women i n the police force i n view of their special role i n tackling women and child offenders22. Lastly, i n 2000. the Ministry of Home Affairs. Government of lndia appointed a Committee for the Formulation of a M O ~ B I Prison Manual which would be an pragmatic prison manual, i n order to improve the Indian prison management and adminsitration according to the 20. Siddique Ahmad, Criminology; Problems and Perspective. Eastern book Com-

pany. Lucknow (1997). P. 150 21. Summery of Recommendations, ibid, Ch. XXIX. PP. 365402 22. Siddique Ahmad, Criminology : Problems end Persopective, Eastern Books Company. Lucknow 1997. P. 151


international standard. The work of the Committee is under

D,. lndian Prison Legislations : A Survey I . The domestic legislation pertaining to the management and administration of prisons in India are scattered in different Acts at the national level. ~ h e s e as follows : are Existing Laws 1. The Prison Act - 1894. 2. The Prisoners Act 1900.- . 3. The Transfer of Prisoners Act - 1950. 4. The Prisoners .(Attendance in Courts) Act - 1955. Forthcoming Laws 1. The lndian Prisons Bill - 1996, 2. The Prisons Administration and Transfer of Prisoners Bill - 1998. 3. Teh Prisons Management Bill - 1998. 12. Some important provisions of the aforesaid Acts and forthcoming Bills are being discussed in some details below 24 The Prisons Act - 1894 13. The Prisons Act, 1894, streamlines .a general and uniform footing of prison administration throughout the country. I t has provided for separation of prisoners on the basis of age,

23. Data colleted from the Bureau of Polic Research (L Development. Ministry of Home Affairs, Govt. of India, New Delhi.

24. Besides the aforesaid. there has been a number of Acts those plays an important role for the management of prison in India. These are, lndian Lunacy Act 1952. Civil Jail Act 1874, Borstal School Act, Habnual Offenders Act. Young Offenders Act, Probation of Offenders Act 1958, Children Act, Provisions of Jndian Penal Code. Civil Procedure Code and Criminal Procedure Code etc.

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gender, stage of proceeding, nature of crime and p u n i ~ h m e n t~~. The Inspector General (Prison) has made the supreme authority for the general administration, supervision andcoordination of prisons in a state. Each prison generally headed by a Superintendent assisted by other subordinate. The medical officer has made responsible for over all health condition and care of prisoners. According to the provision the sick prisoners can report to Deputy Superintendent of Prison i f there is an genuine problem of health service26. The power of prison executive staff to inflict punishment for prison offences are restricted to maintain discipline. Only the officers equal to the rank of Superintendent and above are empowered for prison punishment. While the Prison Act, 1894 i s based on the principles of deterrent theory of punishment but female and civil prisoners are excluded from punishment of handcuff, bar fetters or whipping. If an inmate commits willful disobedience, assault, use of criminal force, insult, treating immoral and indecent behavior, refuses to work, causes willful damage, tempering, false accusation and conspiring to escape than in order to control them the Act provides for punishments like : warning, labour (7 days), hand cuff, fitter, confinement, penal diet, etc., subject to the exmination and issue of certificate of fit by the medical officer in order to sustain the punishment. In case a prisoner committed a heinous crime, the Act provides for initiation of proces by the District Magistrate upon the recommendation of the Prison Superintendentz7.Besides the above, the Act enumerates comprehensive plans on the issues like, prison administration, health care, clothing, bedding, sanitation, pre-release and employment of prisoners under different chapters. With the aforesaid mandates the Prisons Act since the date of inception i.e., 1st day of July - 1894 has

25. The Prisons Act - 1894. Ch. V. Sec -27-30 26. ibid, Ch. VIII, Sec - 37-39 27. ibid, Ch. 11. Sec - 45-54


been providing a comprehensive legal frame work for the management of Prisons in India. The Prisoners Act 1990 13. The Prisoners Act 1900 consolidate the law relating to prisoners confined by the order of court. I t authorizes the officer in-charge (OIC) of a prison to receive and detain a 1 1 persons duly committed to his custody. After execution the OIC have to return the writ, order, or warrant etc., to the issuing a ~ t h o r i t yPart Ill of the act specifically deals with priosners ~~. i n presidency towns. For the implementation of this provision, a Superintendent of Police to be appointed by the State Government. If any writ, warrant etc. issued by the High Court under criminal jurisdiction, it shalt be executed by a police officer not below the rank of Superintendent af Police appointed for this purpose according and under the Act29. The prisoners Act 1900 applicable to the detention of young offenders in the reformatory school.. It gives authority to the OIC for execution of sentence, order and warrant of subordinate courts and tribunals. In case of doubt, the OIC shalt refer the matter to State Government after detaining the convict or accused for the time beingJ0.Special provision has been made for tunatic prisoners, those to be kept i n Lunatic asylum and could be discharged by the order of State GovernmentJ1.The State Government and Inspector General (IG) of Police has powerto order for removal and discharge of prisoners those granted free pardon according t o t h e recommendation of the High Court3*.

28. The Prisoners Act

- 1900. Part I I , S c, -

e .34 29, 30. 31. 32.

ibid, Sec. 3-4 ibid. Part IV. Sec. 14-18 ibid, Sec. 30 ibid, Part VI 8 Vlll 186 CENTRAL INDIA LAW QUARTERLY

The Prisoners (Attendance i n Courtst Act, 1955 14. The Act provides rules and procedures for the attendance of prisoners in Courts, in persons, for obtaining their evidence or for answering criminal charges. The Civil and Criminal Courts has power under the Act to require the appearnace of prisoners to give evidence or answer any question. Such judicial orders shall be forward to the OIC of the prison by Judicial Officer not below the rank of District Judge as Judicial Magistrates I. This jurisdiction is however limited within a State only33. The OIC of prison shall take the concerned person to the court and cause him to be detained in custody near the court until the completion of ,court process3. If a prisoner could not brought before the court, the Magistrate has power to issue Commission for examination of prisoners inside the jail35. In the other hand, the State Government has power to exempt certain person from personal appearance before court after detention and to make rule in this regard36. The Transfer o f Prisoners Act. 1950 b

15. This Act provides mechanism for the inter-state transfer

of prisoners . The government of the State with the consent of . the other State, by order, can issue a process for the removal of prisoners from the prison of one State to another. The prison officers have to abide by the policy decisions of the both Governrnetn~~~. Forthcoming Laws 16. After years of being tolerated with a mixture of cynicism. 33. The Prisoner8 Attepdance in Courts Act lO55, Sec 3 34. ibld, Sec. 5 35. ibid. SOC. 7 $

36. ibid. Sec. 4 & S . 37. The Transfer of Prisoner Act 1955, Sec. 3 Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 187

and apathy the issue of prison reform become a prime agenda of both Central and State Governments now a days. As a result, several new laws in connection to prison has coming forward at the national level. These are as follows: The lndian Prison Bill- 19963a 17. The proposed lndian Prisons Bill - 1996 is based on an outline prepared by the National Human Right Commission (NHRC) which has been criculated among State governments and Union Territories f ~ their comments, suggestions and r observations. The bill has emphasized an urgent need for bring the existing lndian prison system up to the tune of the modern criminology and penological thinking and to effectively cater

to the changed and changing demands for the society i n transition. 18. According t.o the recommendation of the Mulla Committee a separate chapter about rights and duties of Prisoners has included in the proposed bill. These are namely; right to human dignity, right to access of law and sped trial, duty to obey law full orders and instructions, to abide by prison rgules and regulation, to respect hlrman dignity of fellow prisoners and staff, to refrain from making false and exaggerated allegation, to use government property with due care, to assist prison authorities in performance of their etc. 19. The bill clearly specified that the administration should deal with prisoners in conditions compatible with human dignity. b 38.

~n outline of the lndian Prisons Bill 1996, is prepared by the National Human Right Commission, of India. The Commission a National Conference on Human Rights of Prisoners on Nov. 14. 1995. The Conference recommended to set up a Core Group for the finalization of : AN OUTLINE OF THE INDIAN PRISONS BILL, 1996. This Outline was circulated to various States and Union Territories. This document was not legalistic in its language, contents and form. It was a statement in simple prose of the ideas of the Core Group. 39. ibid. Ch. II, PP. 2-3 188 CENTRAL INDIA LAW QUARTERLY 200 1

It called upon the State Governments to workout definite norms for accommodation of prisoners. For this purpose, it has suggested a comprehensive plan regarding residence, sanitation, health care and fooding40.While recognizing every other aspects of prison management, the Bill specificalby highlighted the need for an effective and adequate aftercare strategy and staff development mechanism in order to maintain a pragmatic prison management policyJ1. The Bill also suggested for the establishment of an Advisory Board for the development of prisons and correctional services under the Chief Secretary of the State to advise the Government on relevgnt issuesJ2. The Prison Administration and Trsatment of Prisoners Bill 1998 20. The basic objective of the bill is to introduce a progressive legislation on prison, i n order to reform the prison administration in the country and to lay greater emphasis on the care and treatment-of prisoners in the line with the current correctional humanism permeating penal sanctions. The Bill while recognizing the fact, that the Parliament has no power to make law for the states with respect to prisons and prisoners, i t explained the untility of Article -249 and 252 of the Constitution in order to legislature Model Prison Laws at the national level and its applicability at the Sate level. 25. A survey on the provisions of the bill shows that, it has

incorporate all basic and relevant points of the previous legislations and manuals on the subject of prison 40. ibid, Ch. V. PP. 6-7 41. bid. Ch. XI1 4 XW, P . 21-23 P 42. ibid, Ch. XVI. P. 25 49. The National Human Rights Commirrion hat formulated a drrlt of THE PRISONS (ADMINISTRATION AND TREATMENT OF PRISONERS) BILL, lOS8. bared on An outline of the Indian Prisons Bitl, 1996 as dlscussed earlier.

.. . . .. .. -.-.

-

Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 189 administration in India. The Bill has given a larger emphasis on the development of prison infrastructure with necessary amenities and to afford the inmates with minimum recruitment and rights of man and the establishment and administration of prisons44.The Bill recognized some new category of prisoners like: security risk prisoners, persons suffering from infectious diseases, mentally ill persons, drug addicted person, person involved in sociopolitical agitation, preventive detenu and person who had courted arrest on any political cause45.On the issue of prison discipline and punishment, the proposed Bill strongly recommended the application Oof rule of national justice, as a pre-condition at the time of punishing the inmates4$.The Bill gives due attention to issues like, after care, rehabilitation of prisoners, open institutions, prison facilities, visitors etc. Most importantly it suggested some amendments in lndian Penal Code and Criminal Procedure Code in connection to punishment and imprisonment under various Sections4. The Prison ~anagement Bill-19984e 22. The Prison Management bill 1998 aims at consolidating and amending the lndian laws in relation to prison. The proposed Bill while recognizing the right and duties of prisoners as of the lndian Prisons Bill-1996, also enumerates the duties of the prison staff. Accordingly, every officers of a prison shall all 6me avoid all contact calculated to unduly irritate or among any prisoners, treat every prisoners with tact, good temper, humanity and strict impartiality, with all necessary kindness, andkonsideration to every prisoner, by maintain strict discipline

U . The Prison Administration and Treatment of Prisoners Bill 1998, Ch. II. P.P. 7-9 45. ibid, Ch. II, PP. 9-10 * 46. ibid. Ch. VIII. Sac. 15 8 16, PP. 37-38 47. ibid, Schedule 3. PP. 69-71 48. This is draft bill prepared by theGovt. of India on the basis of An outline of the Indian Prisons Bill. 1996 and The Prisons (Administration and Treatment of Prisoners) Blll. 1998 prepared by the NHRC. CENTRAL INDIA LAW QUARTERLY

and enforce all laws, rules and regulations in order to discharge all of the duties. assigned to him49. Specific guidelines are suggested t o maintain integrity in the public office holders i n the prison50. The proposed bill has given special attention for the protection of under-trial prisoners. The State Government shall provide to every unconvicted criminal prisoners transport facility to carry them conveniently to the court of taw and adequate strength of police force shall be deptued as t o sufficient for his protection during the period when he is taken out of the prison for such pruposes51. It empowers the State Government to establish open institutions and to prescribe rules for the proper management of the same52.Section-71, identifies the g r o u n d s c o n s t i t u t e prison offences and section-72 prescribes the punishment provisions for the same. The Bill a l s o s u g g e s t e d regulations for welfare of the women, adolescent and life convicted prisoners53. 23 An analysis of the three aforesaid forthcoming prison laws shows that, they could be very effective legal instruments i n order to make our archaic prison laws up-to date as well as according to the; expectations of the international human right standard but, unfortunately even after years of drafting, the

Bills never even introduced i n Parliament for legislation. Therefore, it is the high time that the Central Government should immediately take action towacds this direction without any further delay. E. The Model Prison Manual - 1960 : A Survey on Implementation 24. As discussed earlier, the Model Prison Manual (MPM) L.

49. 50. 51. 52. 53.

The Prison Mangement Bill 1990, Ch. IV. P.4 ibid. Ch. IV, PP. 4-6 ibid. Ch. VI. PP. 8-9 ibid, Sec. 69(1) R. t6 ibid. Ch.XVI. P. 20


d r a f t e d by a Committee appointed i n 1957 upon the recommendation of Dr. ~ e c k i e s s , which came into existence on 1960. This draft model prison manual becomes a model for different States and Union Territories of India for adopting their new prison manual. The administration of prisons is a State subject and hence, the MPM is not of handatory in nature. However, most of the Indian States have fallen in the line with recommendationss4.Some basic tenets of the Model Prison , Manual are being discussed in some details below. 25. The Model Prison Manual is consists of 6 parts and 54 chaptes. Part one deals with issues like : Headquarters organiration and Prison infrastructure. Accordingly, the Prison and Correctional services shall be under the control of the Home Department. The organizational set-up of the ~ r i s o n head-quarters shall be headed by a Inspector General (IG) and the IG to be assisted by around twenty types of subordinate officers including Deputy I.G., Prison Supe-rintendent, Conrrectional Officers e t ~The~ , ~ power and function of the I.G., and other subordinate officers ar specifically recognized i n the MPMs. The Model Prison Manual recognized the importance of the reasonable diversification of prison institution like, s e p a ~ a t einstitution for delingquent children, adolescent offenders, habitual, professional and organized criminals, women offenders, Leprosy unit, TB unit, under trial prisoners, Sub-jail and open institutions. I t has suggested the establishment of central prison for inmates upto 750 specifically for the offenders sentecned for terms o f imprisonment exceeding two years. District prisons to be established for offenders convicted under minor offences and the total

population inside the district prison shall not to be more than 54. Siddique Ahmad. Criminolo@y: Problems and Perspective. Eastern Book Comp8ny, Lucknow, 1997, P. 150 55. The Model Prison Manual, Ch. II, Sac. 1-2, P.9 56. ibid, Ch. II and VIII, PP Q & 3-7 40OS7.part Ill,of the MPM enumerates number of facilities for the Prisoners. These are like: education, work, technical and vocational training, cultural activities, leave and emergency . r e l e a s e , s a n i t a t i o n and hygiene, d i e t , a f t e r c a r e and rehabilitation. The MPM provides f o r physical, health, academic, social, vocational, moral and cultural education of a inmates and suggested a detail course curriculum for the same5$. In the other hand, it has strongly recommended that the prison work and training programme should be fundamentaliy integrated with stafe and national economic policies and suggestdd for payment of appropriate wages t o prison w9rkersS9.Undr chapter XXVl the Manual has highlighted that the cultural and recreational opportunities should be extended to inmates i n accordance with their.institutional behavior and response to institutional regimes0.After care and rehabilitation under the MPM is aimed to help a released person to over come his mental, social and economic difficultiessi. Part IV - A of the MPM classified the inmates on the basis of gender, age. punishment, stage of criminal proceeding and nature of crime etc. It helps for a better prison administration and management. 26. An analysis of the baisc provisions of the M ~ M * s h o w s

that it not only enunciate principles for an efficient managment of prisons but also lay down scientific guidelines for correctiye treatment of various classes of offenders2. However, very few could deny, the fact that the MPM is already half a centruy old and the practice and experience shows that the it lacks broad human right issues and judicial guidelines recognizing the basic human rights for prisoners i n order to make them 57. ibid. Ch. Ill, Sec 1.2 & 3 PP. 13-14 58. ibid. Ch. XXIII. PP. 134-38 59. ibid, Ch. XXI , P. 138 and Sec. 16, P. 150 V 60. ibid, P. 159 61. ibid. C . XXXVlll. PP 270-75 h 62. Report of the All India Committee on Jail Reforms. C . I & 1. P. 12 h 1 ,

VOI XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 193

correctional institutions rather the house of captives. But whatever may be the case: the MPM has served as an effective guideline for the development of state prison manual in different states and Union Territories science its inception. The table below identifies the various State Prison Manuals adopted on the light of MPM 1960.

table -1 A list of State Prison Manuals S. Name of the State Name of the Instrument Year of No. Inception 1. 2. Karnataka Kerala

-3. -4.

-5. 1983

Karnataka Prison Manual, Vol I & I1 Kerala Prison Manual Keral Prison Rule Goa Prison Manual 1965 Daman 8 Diu

Tamil Nadu

Tamil Nadu Prison Manual

6.

Andhra Pradesh 1 hdhra Pradesh Prisons Rules I

I

I 1977 7. and -8.

9. 1968 10. 11. 1996 I 12. 1

Jammu & Kashmir Manual for the Superintendent 2000 Management of Jails in the state of Maharastra Jammu & Kashmir Maharastra Prison Manual 1979 Madhya Pradesh Madhya Pradesh Prisons Rules

Bihar Punjab

I Bihar Jail Manual 1990 I Manual for the Superintendent and

1 Management of Prisons in the punjab( Delhi I Delhi Prison Manual 1 1999

196 2001


The UN Standard Minimum Rules - 1955. 29 The UN standard Minimum Rules for the Treatment of Prisoners was adopted on 30m Aughust 1955. I t consists of five parts and ninety-five rules. Part one provides rules of general applications. I t declares that there shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In the same time there is a strong need of respecting the-religious belief and moral precepts of the group to whicha prisoner belongw. The standard rules gives due consideration to the separation of the different categories of Prisoners. It says that the men and women shall be detained in separate institutions. The under-trial prisoners shall be kept in-separate from convicted prisoners. Further more, there must be complete separation between the prisoners detained under civil law and criminal offences. The UN standard Minimum Rule also made it mandatory to provide separate residence for young and child prisoners than form the adult prisoners i n the Prisonss. 30. On the issue of prison offences and punishment, the standard minimum rule provides clear rules. It states that, no prisoner shall be punished unless he or she has been informed of the offences alleged against him and given a proper opportunity of presenting his defense. . 31. It has recommended that, the corporal punishment, by placing in a dark cell and all cruel, in-human or degrading punishment shall be completely prohibited a s a mode punishment as disciplinary action in the Jail. All such punishment including reduction in diet shall never be inflicted unless the medical officer has examined the ,

64. The UN Standard Minimum Rubs for Treatment of Prisoners - 1955. Rule 6(i) 65. ibid. Par - ll and Rule 8 Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA, 197

prisoners and certified in writing that the prisoner is fit to *sustain itse. q

32. The ,UN Rule has given special attention to under trial prisoners and rules has been provided for their special treatment. It has recognized that un-convicted prisoners shall be presumend to be innocent and shall be treated as such. A number of rights like: right to separate detention, right to have own food and own clothing, right to have opportunity for work, right to procure books, news papers and writing materials and other means of occupation at his own expenses and right to get free legal aid, are recognized b y the UN Rules7. 33. While recognixing the basic principles of punxing the ba ic principles of pun the purpose of punishment is not to torture a person but to reform him and ultimately making him a good citizen. To achieve this objective, Rule, 79-81 of the Standard Minimum Rule provides for social relations and after care provisions. I t says that, from the beginning of a prisoners sentence consideration shall be given to his future after release and he shall be encouraged and assisted to maintain or , establish relations with person outside the institution as may promote the belt interacts of his family and his own social rehabilitati~n~~. Training qf Prison Personnel 34. The UN recognizes the fact that, proper selection and

training of prison personnel is a pre-condition for proper implementation of prison laws and to ensure the minimum human right norms to the prisoners. Hence, the UNs Congress on the Prevention of Crime and the Treatment of Offenders have adopted another resolution on 1st September, 1955 regarding 66.

IbM, Rub 27 6 28 67. ibI4 Rule 84 to 93 68, idib. Rule 60 and 79-81

198


Selection and Training of Personnel for Penal and Correctional Institutions. The Resolution prescribed a comprehensive mechanism for selection of right man for right job i n prisons and their proper trainings9.In the other hand, the UN Resolution on 29 August 1955 on Open Prison and Correctional Instituion provides rules and guidelines for the establishment, and administration of open priosns and correctional institutions. The Resolution considers that the open institution marks an important step in the development 0, modern prison system and represents one of the most successful applications of the principles of the individualization of penalties with a view-to social adjustment70. Other International Initiatives 35. Among the other international initiatives -on the subject the United Nations General Assembly Resolution on Body of Principles for the Protection of All Persnns under Any Form of Detention or Imprisonment 1997 i s a comprehensive documents., It suggests various guidelines regarding treatment of e,very type of person detained by the government authorities including the police, investigating agencies, prison officers and the judical bodies. 36. B e s i d e s t h e above, t h e r e has been a n u m b e r o f international law instruments those indirectly provides rules and recommendatidns for ensuring the human right,for every human being including the prison population at the international level. The International Covenant on Social, Economic and Cultural Rights - 1966 recognizing of the inherent dignity and the equal 69. The UN Congress on the Prevention of Crime and the Treatment of Offehders. Resolution on Selaction and Training of Personnel and Correction Institutions. Sept. 1.

1955. The resolution consist of 24 articles. dealing with variety of Issues regulating prison management. 70. The UNs Congress on the Prevention of Crime and the Treatment OF Offenders on Open Prison and Correctional Institution of 29th Aughust 1955 consists of S articles recommending various guidelines for the establlshment of open prison and correctional institution while highlighting the objectives of such institutions. VOI XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 199

and inaliehable rights of all members of the human family as the foundation of freedom, justice and peace in the world71. The Covenant consist of 31 Articles, is a broad based document highlighting the basic fundamental rights of human being. The basic slogan of the Covenant is that, in every circumstance the fundamental rights of the human being should not be . violated. On the other hand, the International Covenant on Civil and political Rights - 1966, under article - 6, recognizes that, every human being has the inherent right to life to be protected by law. No one shall be arbitrarily deprived of his life.%The Covenant strongly recommended the abolition of death penalty and recognized the right of prisoners to seek pardon, special right of juvenile prisoners and pregnant women72.Further more, the Covenant make the State parties obliged to ensure that,, no one shall be subjected to torture, cruel, in humane or degrading treatment or punishmentt3. A variety of rights of the - under trailed prisoners are also identified by the Covenant7*. I n the same time other international legal instruments like : the Univerrsal Declaration of Human Right 1948 and the -

Convention Against Torture (CAT) - 1976, while recalling all previous developments on the subject provides a better frame . work for maintaining the human right norms for everybody. In this backdrop, i t would to worth noting that, although the international law regime for prison reform are very important but its implementation is totally depends on the mercy of State parties. Until and unless the Sovereign States did not ratified and implemented the same at the domestic level, the aforesaid international legal instruments has no legal value. It can be concluded that, the International Law on the subject consists 71. T C Preamble, international Covenant on Economic. Social and Cultural RiQhts 1966. 72. Part Ill. Article 6 of the International Covenant on Civil and Political Rights - 1866 73. Ibld. Articb -7 74. See Articie - 14 of the International Covenant on Civil and Political Rights - 1966

200 200 1


of certain principles of criminal justice incorporated in the form of rules those are soft law in nature. But, as these lacks an effective implementation mechanism, these rules to be considered by the national courts as merely guideline for the interpretation and l e g i ~ l a t i o at~ ~ domestic level. n the G. T h e Existing Trend i n lndia : Humanization of Criminal Justice 37. The existing judicial and administrative trend in lndia on prison reform is based on the fundamental prinicples of the Indian Constitution and Judical decisions by Supreme Court of lndia and different High Courts. Though, the Constitution does not provides any specific provisions regulating right of prisoners or prison reform but certain Fundamental Rights generally applicable and even recognized by the Court of Law for protecting prisoners right. These are like : Article, 14-Right to Equality, Article, 19-Right to Freedom of Speech, Articl.e, 21 Right to Life and Personnel Liberty and Article, 22- Protection against Arrest and Detention in certain 38. Using the newly established doctrine that one can be deprived of his personal liberty only through a procedure which is fair, just and reasonable, the Judiciary has been taking steps for liberalizing the administration of criminal justice77. In a series of land-mark judgements the apex court have, while laying down the constitutional dimensions and rights available to prisoners and the approach to be adopted in dealjng with j5. Naresh Kumar, Constitutional Right of Prisoners. MiHal Publications, Delhi (1986). P. . 17 .

76. PM Bakshi; The constitution of india. Universal Law Publishing Pvt. Ltd., Deihi (1097), PP, 11-68. 77. An immediate beneflclal impact of Menka Gandhis Case (AIR 1978 S.C.) has been felt in Prison Administration also as cited in Verma S. K. and Kusum, Fifty years of the Supreme Court of india : Its grasp and reach Oxford University Press. new Delhi, 2000, Ch. I.MP, Jain, The Supreme Court and Fundamental Rights, P 26 .


various aspects of custodial justice and administration, invoked article 21 to protect and shield prisoners from prison vices78. On the basis of issues in relation to prison, those identified in the judicial decisions, some important cases of the Supreme Courts and High Courts are being discussed in some detail below. A. Prisoners Rights 39. The growing awareness about the right of prisoners among the prisoners themselves and the others those engaged i n the movement of civil liberty has marked the prison administration i n tndia during last 30 years. I n MH Hoskot V State of Maharastrat7O and Frances V Union Territory of Delhisothe right of access to law and legal facility has recognized by the Supreme Court of lndia. The Court also directed the government to assign a competent council for.the prisoners defense, appeal and recessions1at the cost of the State. In Frances Coralie V Union Territory of DelhiIa2the court has recognized the detenus right to meet with friends and relatives under the scope of Article 14 and 21 of the Constitutions3. 40. T h e right to freedom of speech and expression i s indis,pensable for the development and protection of the creative faculties of human beings. In A. K. Goijaln Vs. State of MaharastraTE4, Prabhakar Pandunga V State of M a h a r a ~ t r a ~ The Prisons Administration and Treatment of Prisoners Bill, 1998, Ch. I P.2 , (1978) 3, Supreme CourtCases (SCC) P. 544 (1981) 1, SCC, P. 608

Also see Khatri V State of Bihar AIR 1984, (SC). Ranjan Dwivedi V Union of lndia AIR. 1983 (SC) AIR 1981. SC. P. 753 The Court observed that of course, the magnitude and content of this right would depend upon the extent of the economic development of the state. But the limitation should not be such, that H will lower the human dignity. AIR, 1950, SC. P. 27 AIR. 1966. SC, P. 424

202 2001


and Prabha Dutt V Union of Indiaga6 court has recognizing the , this right i n favour of prisoners under the scope of the Article 14 and 19 of the Constitution of India. Hence forward, the inmates get an exclusive right to read, write, publish books, articles and journal and to give interviews to journalists and legal advisors, etc. 41 In Rudal Sah V State of BihartE7 Supreme Court while the broadening the doctrine of Act of State (the defense available i n favour of the State not to pay compensation to victims due to State action) recognized the right o f compensation t o prisoners against arbitrary arrest and detention. In the present case damage i n the way of compensation was awarded to a victim for wrongful imprisonment. ~ e c e n Developments t 42. An analysis of some of the landmark judgements of the honourable Supreme Court of lndia and different High Courts regarding Prison reform since the early 1990s shows that, the court of law in lndia has been recognizing a broad range of rights of the prisoners i n the light of recent human right initiatives. .Some of the important rights of the prisoners are like : right to fair treatment and dignity, right to equality, right to basic human needs, and right to the principles of nature justice, etc. 43. I n t h e cases o f Amir Shad Khan V.L. Hmingtiana, Citizens for Democracy V State of Assam, Kewal Pati V State of UP, Murti Devi V State of Delhi, and R.D. Upadhyaya V State of Andhara P r a d e ~ h the ,Supreme Court of lndia identi~~

fied the right to judicial remedy for prisoners. The court observed 86 SCC, 1982. P. 1 87. AIR 1983 SC. 1096 88. (1991) 4 SCC 39,(1955) 2 SCC 743(1955) 3 SCC 800, (19Q8) 9 SCC 604, (2001) I , Sac I 437.

VOI XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 203

that, the authorities are required to act according to the law but the law has been unfortunately respected i n its breach. It said that, the history of liberty is the history of procedural safe guards and hold that, the right to judicial remedy flows from the constitutional guarantee enshrined in Article 14, 20, 21 and 22 of the Constitution. 44. I n the other hand, the Supreme Court has reiterated its voice against unneccessary restriction on the Prisoners right to personnel liberty. I n the cases of Citizens Democracy V State of Assam, and State of A.P.V. Challa Rama Krishna ReddytsS, the court held that the power of the police and prison authority to ensure discipline in the custody and to check the anticipated escape, an inmate is subject to fundamental rights and Judicial guidelines. 46. Right to fair treatment, dignity and equality has been recognizedby the Supreme Court and various High Courts. Accordingly, i t is observed that the right to dignity and fair treatment under Article 21 of the constituion of India is not only available to a living man but also his body after his deathg0. In the same time the court said that, the prison facility like remission and parole should be exercised on the basis of doctrine of equality by the state. If not, then the High Court can quash the unequal facility granted by the State in favour of any group or individualg1. The Prisoners right to basic human needs has recognized by the Kerala High Court in the case of A Convict Prisoner in .the Central Prison V State of KeraIalg2in which the court issued 89. (1995) 3 SCC 743. AIR 2000 SC 2083 and also see High Court decisions like ~ a l l a Pareddy Prajanna V State of AP, 1994 Cr. LJ 2016, and P.D. Gajbbide Vs State of

maharastra 1994 Cr W 2555. 90. Paramananda Kartar V Union of India. (1995) 3 SCC 248 91. State of MP V Mohan Singh. (1995) 6 SCC 321. 204 CENTRAL INDIA LAW QUARTERLY 200 1 direction to the State to build sufficient number of prisons for proper accommodation to effectively implement segregation, to appoint proper prison staff; payment of wages to the prison labour; free legal aid, to rationalizing parole and remission policy; and to broaden the s w p e of educational and recreational facilites.in the Jail. 47. Administration of prison instjtutions and maintenance of discipline i n jails i s subject to the Principle of Natural Justice. The prison authorities should take action and issue order only with the due compliance of the principles of Natural JusticeQ3. Time and again, the Indian Judiciary has recognized the natural rights of prisoners as inalienable right and compelled the government authority to act and practice accordingly. 6. Speedy Trial 48. The long pre-trial incarceration of an accused person in lndia isa dangerous aspect of our criminal justice system. In this context, the Supreme Court of lndia i n the case of Sunil Batra Vs. Union of IndiaQ4 and Hussainara Vs State of BihaP5 o b s e r v e that the speed trial is an integral and essential part o the fundamental right to life and liberty under Artcle.21 of f the Constitution. These cases has resulted i n law taking on a new identify as an instrument of justice responding to the needs of the society as steps towards lowering of the barriers between the common man and courtQ6.According to the court, it is a

crying shame upbn our adjudicatory system which keeps men i n jail for years on end without a trialQ7. While laid down liberal rules for bail and bond it insisted that, a developed jurisprudence 93. Keemat Singh V I.G. Prison. Chandigarh, 1994, Cr. LJ 1884. Ramaswamy V The govt. of A.P., 1997 Cr W 3256 and Sarjerao Pole V State of Maharastra, I999 Cr LJ 1433. 94. Case I. AIR, 1979, SC, P. 1979, Case 1 , AIR, 1980, SC, P. 1585 1 95. AIR. 1979. SC P. 1360 96. Ranl Dhavan Shankardass. punishment and the Prison: Indian and International Perspectives, Saga Publication, New Delhi (2000). ch. 9 Pushpa Kapila Hingorani, The problem of Under trial: Hussainara Khatton and Public interest litigation, P. 197 97, Kadra Pahadiya V State of Bihar, AIR. 1882. SCP. 1167


of bail is integral to a socially sensitized judicial processga. 49. I n brief, i t can be concluded that, t h e c o u r t has . recognized that separate cadre of investigation agency enjoined with the reponsibility of production of witness, production of accused and assisting the prosecuting agency will facilitate speedy trial. The lack of coordination between the investigating and the prosecuting agencies should be rectified. In cases of offences c,ommendable by the agreement of the parties, the proceedings may be terminated by recording the compromise, and the accused be releasedsg. C. Solitary Confinement, Bar fetters a n d Handcuffing 50. There is no denying to the fact that maintenance of security and discipline in prison is an important ingredient of the smooth functioning of prison administration. Hence, the Prison Act 1894 and the Model Prison M-anual has prescribed . specific provisions about the scope and power of the prison officers for the purpose. On the other hand, some of themode: of preserving discipline like : solitary confinement, bar fetters and hand cuffing etc., has provoked much debateto0i n the background of the growing allegation of human right violation. , In Sunil Batra V D e M Administrationlol the Supreme Court of lndia laid down a detail guideline regarding the practice of solitary confinement i n Indian Jails. Terming s o l i t a r y confinement of extremely cruel, and dehumanizing the cqurt said that, there is no reason t 4 permit the same punishment to be smuggled intothe prison system except in extreme case 98. Babu Singh V Uttar Pradesh, AIR 1978: SC: P. 527-520 _

99. H. Syed Mathani, The right to speedy trial. The Hindu. New Delhl. 24 April, 2001. 100. Section 73. 74 of IPC and Section 30. 46 of Prisons Act 1804 recognizes solitary confinement. But the Law Commission of lndia in its 42 Report favoring the abolition a of the same. .101. SCC (1978) P. 494, also see Kishor Singh V State af Rajasthan. AIR 1981 (SC). P. 825

206 200 1


of necessity. In the same time, in the case of Charles Sobhraj V Supdt., Central Jail and Prem Shankar Shukla V Delhi Administrationlo2 the court hag restricted the use of handcuffing and fetters for the safe custody of prxioners in jail. The court observed that, the treatment of human beings which offends human dignity, imposes avoidable torture and reduces man to the level of animal would certainly be arbitrary. Hence, section36 regarding use of fetters, of Prisons Act-1894 is unjustified. On the issue of hand cuffing the court described the practice as inhuman and over harsh, to be employed only in exceptional circumstances and accordance with the judicial guidelineslo3. D. Torture 51. The apex court in number of cases iaises concern against police torture, and brutality on prisoners, under trials and accused personslo4.In Kishore Singh V State of Rajasthan the Supreme Court has held that, the third degree method being used by the police in custody or prison is violative of Article 21 of the C o n s t i t ~ t i o nCustodial death and violence ~~~. is one of the worst crime in a civilized society governed by rule of law. In D. K. Basu V State of West Bengal the Supreme Court has observed that the power of the executive should not only be derived from law but also the same should b e limited by law106. While recognizing the fact that arrest can cause irreparable injury to an individuals reputation and self-respect, the court of law observed that arrest should not be made merely on suspicion but after attain reasonable satisfaction about the genuinenes of the complaint107. The supreme Court recognizing 102. SCC. 1978. 104. Criminal Law Journal (1980). P. 930

103. Also see Sunil Batra AIR (1978) and Khatri V State of Bihar. AIR 1981 (SC) 1675 104. Raghubir Smgh V State of Haryana, AIR 1980 SC 1087 8 1088. Kartar S~ngh Stale of V Punjab, 1994 SCC 56, Nilabati Behera V State of Orissa AIR. 1993 SC. 1960 105. AIR 1981, SC 625 106. AIR 1997, SC. 610 107. Joginder Kurnar V State of U P AIR 1994, SC 1349 .s Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR I N D M 207 the principle that a person do not become non-person after = c o n v i c t i o n and s e n t e n c e d t o j a i l . Hence, e v e n a f ter imprisonment he is still entitled for Fundamental Rights in order to maintain his dignityto8. 52. The issues of delayed execution and cruel punishment has repeatedly raised in various courts. I n Sher Singh V State of Punjab log, Supreme Court agreed with the view that i n the case of proolonged detention on the ground of delay i n execution of death sentence i s a ground to invoke Article 21. I n Bachan Singh V State of Punjabllo the court observed that the inhuman and cruel punishment infringes the fundamental human rights guaranteed under part Ill of the Constittuon. .Hence, cruel punishment ought not to be imposed except the gravest of cases subject to judicial scrutinylll. The court has recognized the right to fair treatment and dignity of the prisoners as a tool against the alleged acts of torture by police and jail . authority. I n the cases like: State of Maharastra V. Revikemt

and R.D. Upadhya V State of Andhara Pradeshll* the Supreme Court hasheld that every prisoners are entitled for the right to fair treatment under the scope of Article 14,20,21 of the Constitution. E. Prison Labour and Wages 53. Prison labour i n India always viewed as a mode of punishment. In the same time, there are movements i n order t o eliminate free labour rendered by prisoners. The Indian Judiciary promptly reacted towards eliminating free labour T.V. Vathees Waran V State of T. N., AIR 1983, SC, 361. Prem Shankar V. Delhi Administration, AIR 1980, sc 1535 AIR 1983. SC 465 AIR 1980. SC 898 Also see Trivenal Ben V State of Gujrat, AIR 1989. SC 142. Francis Coralie V Union Territory of Delhi. AIR 1981. SC 746 1991, 6 SCC 321 AND 2001, 1 SCC 437

208 2001

CENTRAL INDIA LAW QUARTERLY f

V practices in jails. In the case of Mohammad ~ i a s i d d i n State of Andhra Pradesh13 and Dharambir V State of U.P.l14, the Supreme Court of lndia held that the prisoners are entitled to fair wages for the work done by them. The court of law analyzed the scope of section 53 of the Indian Penal Code and said that section talks about hard labout* but not free labour for the rigorous imprisonment115 Recently, in the case of state of Gujarat V High Court of Gujarat1.16, the Supreme Court of lndia while recognizing the fact that the jail authorities are enjoying by law to impose hard labour on prisoners who have been sentenced tp rigorous imprisonment. It also directed all the State Governments to take a policy decision on the matter without any further delay and recommended that, until such decision, every prisoner must be paid wages for the work done at the rater or revised rates at the government concern fixes. 54. The problem of human rights of persons in custody is the main theme of prison reforms in the country today. In this background, it can be concluded that, the current trend on prison reform in lndia is guided by the following considerations: + There are certain rights and freedoms those are f u n d a m e n t a l to h u m a ~ x i s t e n c e . They a r e n o t e privileges, nor gifts given at the whim of a ruler or a government. Neither they can be taken away by any arbitrary power. They can not be derfied, nor can they be forfeited because an individual has committed any offenceor broken any law. + Human right initiatives and obligations under the constitution of lndia as well as international conventions

are now an important feature of the day to day conduct 113. 1977, SCC 287 114. 1979, 3 SCC 645 115. Prison Reforms Enhancement of Wages of Prisoner. AIR 1983 Kerala 261 116. 1998, 7, SCC 392


of the government in order to promote and to protect a wide variety of human rights. Prisons are no more considered as a House of Captives but they are correctional institutions. Prison regimehelp the prisoners to lead law abiding, self-supposing, reform and socially rehabilitated life. A p e r s o n c o m i n g t o p r i s o n does not become a non-person. Prisoners have all constitutional rights except those limited due to their imprisonment. Human rights are a basic element of correctional justice based on assumptions that hate-the crime, not the criminal. A prisoner should have human rights i n order to learn and respect the human rights of others after release. Debarring a prisoners from human rights would pose a direct threat to our own humanity and civilization. Prisoner is sent to prison as a punishment, but not for the p ~ n i s h f n e n t . ~ Conclusion Programmes for reformation and rehabilitation of offenders, for making them useful citizens, must find a place in our national plansIi8. In this context, there i s no denying to the fact that an effective and adequate prison reform policy i n the light of fast developing and widely recognized principles of human rights i s one of t h e most unfailing tests of the 117. Data collected from the Bureau of Police Research & Development. Ministry of Home Affairs, Govt. of India, New Delhi. 118. Dr. Hira Slngh, Prison Administtation in India. Contemporary Issue PP. 112-122 as

cited in the book Punishment & the Prison; Indian and International Perspective, edited by Rani Dhavan Shankerdev. Saga Publications. New Delhi. 2000.

210 2001


civilization of every country. However, even after 50 years of independence the conditions of prison and prisoners i n lndia appear not to have improved wuch. There is large network of criminals, officials, and non-officialsin the prison: the house of correction and drug racket, alcoholism, smuggling, violence, theft, un-constitutional punishment by way of solitary cellular life and transfer i n other jails are not u n - c o m m ~ n l The. law ~~ has an important role to play towards achieving the noble goal of maintaining the human right standard in Indian Jail. The role of judiciary, legislature, press and most importantly the participation of people cannot be sidelined for formulating a comprehensive prison management policy at the national level. The government have to promptly make endeavor for the Formulation of New Model Prison Manual by replacing the archaic model prison manual of 1969. The proposed Model P r i s o n M a n u a l s h o u l d b e s t r o n g l y on t h e l i n e o f t he recommendation of the All lndia Jail Reform Committee. The standard minimum rules for treatment of Prisoners of the United Nations could b e an important tool towards this direction. The changed jurisprudential towards prison system i s based on therapeutic approach rather deterrent theory of punishment. T h i s should be adequately r e f l e c t e d i n the proposed legislature on prison reform. To achieve this end, the state have to undertake legislative reform as a first step towards achievirig the goal. The Directive Principles of State policy on prisons should be formulated and be embodied i n Part IV of the C o n s t i t u t i ~ n ~ ~ ~ . 56. The suject of prisons and allied institutions should be included in the Concurrent list of the Seventh schedule of the constitution of India121. All the Acts pertaining t o -prison

119. Justice Krishna lyer in Sunil Batra V. Delhi Administration All lndia Reporter. 1980. Supreme Court. P. 1586. 120. Chapter XXIX. Summary of Recommendations Report of the All lndia Jail Reform Committee, 1980-83. PP 365-66. 121. ibid

VOl XIV FORMULATING A PRPGMATfC PRISON POLICY FOR INDIA 2 i

administration should be complied and a new uniform and comprehensive legislation should be enacted by the government of lndia for the entire country. The government of lndia should prepare a Model Bill to be adopted by all the States and Union Territories for this purpose722. The State governments and Union Territories should take prompt action to frame rules under the prison statute. The domestic laws iike: Young offenders Act, Borstal School Act, Pxobaticn of Offenders Act, Children A c t Habitual Offenders Act, Juvenile Justice ActTz3 and the lndra;: etc Penal Code andcrime Procedure code should be amended ,n the light of the provisions of the new Model prison manual arid All lndia Jail Reform Committee Report. The article hopes that by implementing all the aforesaid suggestions, lndia could be a model state for most of the Afro-Asia developing countries in the field of prison reform in the new millennium. lndian prison could be the center for correction by providing mental. mbtal and vocational training, so that the offenders can rehabr!rtate themselves after their release from prisons and to enjoy !heir normal life as a sensible citizen of this great country. The study i d e n t i f i e d c e r t i a n p r i o r i t y areas for p r i s o n r e f o r n s as enumerated below: 4Need to provide adequate exposure to prison staff both at the national and international levels. + Finding the best prison practices and implementing the same in the lndian-context. 4Proper recognition to Indian prison service and cadre1 career planning for prison officer at the nattonal level. + Development of correctional training in order to have

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