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“Remember those in the prisons as if you were their fellow prisoners, and those who are mistreated as if you yourselves were suffering.” ~Hebrews
The issue of state of prisoners in India has been seen recently in news as the activists as well as the newspapers are pointing out the precarious condition of the prisoners. The COVID 19 pandemic has just added fuel to the fire. The issue of the prisoners is important but it should not be seen in isolation because the reforms in prisoner’s life are dependent on the reforms in prisons of India. The prison reforms are further heavily dependent on the improvements in criminal justice system.
According to the report by Amnesty International, the prisoners in many countries are forgotten during the time of pandemic and subsequently they have to live an inhumane life which is against their fundamental rights. Some incidents were reported in which prisoners lost their lives due to violence between the inmates.
Various committees have been set up to suggest reforms in prisons. These committees include Justice Mulla Committee 1983, Justice V. R. Krishna Iyer committee on women prisoners 1987. These committees suggested reforms like establishing separate institutions for women offenders etc. India is on the path of prison reforms but the stark reality is that the state of prisoners as well as the state of prisons remain grim in India.
The issue of prison reforms is not limited to India but this issue has captured the global attention especially in COVID times. There are various reports and documents on international level also which cater for rights of prisoners and the prisons.
This article in due course will highlight some problems faced by prisoners and the rights which they have to sacrifice during their imprisonment. Various case laws will be analysed to put forth the arguments.
Problems with prisoners in India
- Overcrowding in prisons:
The 25th report published by NCRB paints bleak picture of the prisons in India. According to the report, the total capacity of the Indian Jails is four lakhs but the total number of the prisoners are 4.8 lakhs. The total number of the jails were increased from 1339 in 2018 to 1350 in 2019, but the prisoners were not relieved from precarious condition even after increasing the number of jails. The occupancy rate of the jails was also increased from 117.6 in 2018 to 118.5 in 2019. This increase in the occupancy rate is despite the fact that the total number of the prisons have been increased. The highest occupancy rate was reported by Delhi which was followed by Uttar Pradesh and Uttarakhand respectively.
Among the total number of prisoners, most of the peoples who are currently in jail are under trials. They are being incarcerated even before their offence is proved. This fact has also been highlighted by the report which says that 69.05% were under trail prisoners while 30.11% were convicts. The report records an increase in the number of under trials from 2018. The report mentions a drop in the number of convicts who are dying, but the decrease was very minimal. The total number of deaths in 2018 were 1845 which came down to 1775 in 2019. Hence the report paints the perfect picture of the prisons and the prisoners in India.
The main reason for the under trials prisoners being stuck in jails is their background. Most of the under trial prisoners belong to the poor family and hence they cannot pay the hefty fees demanded by the lawyers and they end up wasting large number of years in Jail. In a recent ruling of the Supreme Court bail was granted to 13 persons after they have spent 14 years of their life in inhumane conditions of prisons despite the fact that it has been proved that they were juveniles at the time of crime. This portrays perfect picture of the Criminal Justice system of India.
The over crowing of the jails also results in the poor facilities to the inmates in this pandemic time. It has been seen that the total number of the prisoners who have been tested positive for COVID 19 were 2191 and the prisons which have more occupancy rate have the more inmates tested positive for Corona Virus. Thus the issue of overcrowding of the jails became pertinent in the Corona pandemic. The overcrowding of prisons generates prison violence, various types of diseases, poor sanitation facilities etc.
Another important issue which creates the perilous state of the prisoners is understaffing. Out of the total capacity of the prison officials, 33% of the seats are lying vacant. The number of police officers in India i.e 181/lakh prisoners is much less than the limit prescribed by UN i.e 222/lakh. According to the report of NCRB, only 68.5% posts were filled at the end of 2017. The state specific data of understaffing shows that Jharkhand has filled only 33.5% posts and stood at lowest podium. Due to this problem, the prisoners have to spend almost 23 hours in a day in prisons only which effects the mental health condition of the prisoners. The lack of adequate staff is also a reason which make the prisoners addictive because they get easy access to the psychotropic substances. The increased violence adds to the already grave problem.
- Lack of Funding
Indian prisons also lack in proper funding due to which the infrastructure of the Indian prisons is very bad. The problem of underfunding also leads to the problem of understaffing because if the government itself is lacking the proper resources then it cannot afford appointing new prison officials and paying them. Thus, the prison should be funded adequately to ensure the wellbeing of the inmates.
- Lack of Socialising:
In India, being lodged in prison is considered as a taboo. Once an individual goes to jail then the society also become apprehensive about him/her. But the true position is that, the prisons are for reformation of criminal and not for confinement. The data from NCRB shows that the prisoners who are cut from family and friends have 50% more chances of committing suicide. Hence, the best situation is to reform inmates without cutting them from society. In this stance, the idea of open prisons is a welcome step. Currently, there are 86 open prisons in India but the number of inmates in these prisons are very less. Some states do have the prisons but they still do not have any inmate in them. The concept of the open prisons is that the person should be reformed without being separated from the society. The open prisons are prisons without boundaries. In open prisons, the person is allowed to stay with his/her family and is also allowed to engage in some kind of work. The person can go to work in day and have to return in evening. This system will not cut the prison from the society and the prisoner will not face any difficulty to mingle with the society after the completion of the imprisonment. The concept of open prisons will reduce the metal suffering of the prisoners.
Apart from these problems there are various other problems in Indian prisons like lack of basic facilities for women inmates, poor medical health care etc. The poor condition of the prisons has also become an issue in extradition of fugitives under UN convention. This issue is highlighted by the case filed by India to bring Kin Devvy back from Denmark and in this case India has to bear loss. 
Prisoner’s Right under International Conventions:
United nation grants some rights to the persons in the form of Universal Declaration of Human Rights. Under this declaration, everyone has the right to life and liberty, no one can be subjected to torture or detention. This declaration also prohibits the derogatory treatment with any person. Another convention which talks about the prisoner’s right is ICCPR (International convention on civil and political rights). India has ratified this treaty in 1979 and hence India became and obligatory to this convention. Article 6(1) of the convention grants right to life to all human beings regardless of being prisoner. Article 10 of the convention is the most important article dealing with right of the prisoners. This article says that the persons who have been deprived of their freedom should be treated with dignity and respect. Apart from these conventions, there exist United Nation Standard Minimum Rules for the treatment of the prisoner’s which are commonly called as Mandela’s rules on prison reforms. These rules include the provisions related to food, provisions related to clothing among other things.
The other treaties/conventions which cater for the prisoner’s right are: The International Covenant on Economic, Social and Cultural Rights (ICESR), Declaration on Protection from Torture, 1975 and convention against torture and other cruel, inhuman and degrading treatment. These are some of the international legislations which have provisions relating to prisoner’s. Next section of the article will focus upon the rights of prisoner’s in India.
Rights of the prisoners in India:
The main contention which arises is that whether the prisoners will have fundamental rights or not? The answer to this question can be found in the case of Charles Sobraj v. The Superintendent, Central Jail, Tihar, New Delhi. In this case, Justice Krishna Iyer held that the Fundamental Rights of the prisoners do not cease to exist in jails. He also held that if the atmosphere is of constant fear and violence, denial of opportunity to improve oneself, then under such situations the jurisdiction of the courts will become operational on the basis of Article 19. Hence, from this judgment it is clear that the prisoners do have fundamental rights which they can claim in case anyone violets them.
There are various fundamental rights which our constitution guarantees for prisoners. Article 14 of the constitution guarantees right to equality to all its citizens. It provides equality before law and equal protection of laws to all the citizens. This article ensures that the prisoners are to be treated at par with other individuals because they are also citizens of India. Article 21 of the Indian Constitution which deals with right to life grants right to live life with human dignity. This right is very broad in its sense and it also enshrines other rights such as right to environment, right to food, right to shelter, right to speedy trial etc. The scope of Article 21 was further broadened in the case of Maneka Gandhi v. Union of India, which said that “life” in the section includes right to live with human dignity. Supreme court in the case of Parmanad Katara v. Union of India stated that when it comes to the human life then the difference between a criminal and innocent person does not make any sense. Further, article 22 of the constitution prohibits solitary confinement of the individuals. All rights which are granted by the constitution to the inmates are for their protection and to allow them to lead a happy and peaceful life. It is the duty of the government authorities that these rights should be granted to them and there should be no violation of these rights.
The court has also granted Right to privacy to the prisoners in the case of Rohit Shekha v. N.D Tiwari. In this case the court held that nobody could be compelled to any technique even when it is a part of investigation. The court was of view that such techniques will result in violation of privacy of individual. The court has gone to extent of granting right to privacy of the prisoners and their spouses in the case of Rahmath Nisha v. Additional Director General of Prisoner and Others. In this case, the prisoner was granted leave to meet his wife but by the time he reached home his wife has been transferred to hospital owing to her ill health. The police officials did not allow the man to go to the hospital because the permission was only granted to visit the house and not the hospital. This petition was heard by Madras High Court and the court said that the man can meet his wife in the hospital. The court also said that the meeting between the wife and husband should go monitored. The court did so to protect the rights to privacy and dignity of the prisoner.
Supreme Court in the case of Sunil Batra v. Delhi Administration, highlighted that Solitary confinement should be granted in the very exceptional cases where it is extremely essential to keep the prisoner in the solitary confinement. This is because in solitary confinement, the inmate is kept in another cell separate from other inmates and living in such situation can aggravate the mental health of the prisoner.
The court in the case of AR Antulay v. RS Naik, laid some guidelines for prisoners. This case also recognises the right to speedy trial of the prisoners. The court held that the right to speedy trial is available to all and it ensues from Article 21. But as highlighted by the NCRB report, the under trial prisoners occupy largest number of the prisons and some of them have been there for very long period of time. This shows that the prisoners are not able to exercise this right. Another right which is related to this right is right to legal aid. As a principle of natural justice, every person should be heard, but the large number of the prisoners belong to the poor group and cannot afford legal service, the principle of natural justice as well the right to representation stands violated.
These are some of the constitutional rights available to the prisoners. But the prisoners also have some statutory rights under The Prisons Act, 1894. Section 4 of the Act provides for sanitary conditions and accommodation to the prisoners. Section 7 of the act provides for safe custody of the prisoners who are exceeding the number of prison capacity. Section 35 of the same act provides for the under trials, parole, and release of the prisoners. Apart from these there are various rights which are granted by the Prisons Act 1984.
Recommendations by the prison reform Committees:
In 1980 a committee chaired by Justice Mulla was set up to suggest reforms in prisons. The Committee recommended that a National Prison Commission be established as a permanent organisation to modernise India’s jails. The Committee also proposed that the existing disparity in jail administration between the Union and the States be eliminated. It called for an outright prohibition on the atrocious practise of putting juvenile offenders in prison with hardened criminals. The committee recommended that the mentally disturbed patients should be separated. Apart from this the committee also recommended that conditions of the prisons are to be improved by providing proper facilities to the prisoners. The media and public men should have access to the prisons so that the public have the correct information about the condition of the prisons. The under trials prisoners should be kept separate from the convicts and the government should provide adequate funds for prison reforms.
After the Justice Mulla committee, the government established Justice Iyer committee to conduct a study on women prisoners in India. The main recommendation of the committee was that more women police force should be inducted to take care of the women and child offenders. This committee also recommended to establish separate institutions for women offenders.
In 2005 a committee under the chairmanship of director general of Bureau of police research and development was established. This committee It also drafted a National Policy on Prison Reforms and Correctional Administration, 2007 which included enacting comprehensive laws in matters of prisons.
In 2018, Supreme Court appointed Justice Amitava Roy Committee on prison reforms. The committee submitted its report in 2020 with some recommendations. The committee suggested that every new prisoner should be allowed to call their family members once in a day free of cost for the first week of the term. To curb the problem of understaffing, the committee suggested that the trial should be held at video conferencing as this would require less work force. The committee also recommended to improve the lawyer prisoner ratio which is there should be one lawyer per 30 prisoners. The committee recommended setting up of fast track courts as such courts will help in reducing the crowd of the prisons.
There is strong need for making a comprehensive law of prisons and prisoners as the law which is currently in practice is more than a century old and this law fails to address some of the contemporary issues. We have to look at the recommendations of the committees to make a holistic law which will suit the current situations of the country.
The prisoners are the persons who have conflict with the present laws of the country but this does not mean that they are not entitled to enforce their fundamental rights. The recommendations made by committees and the report published by NCRB shows that there is lot which has to be done to make the life of the prisoners meaningful. It requires investment to time to shift the focus of our criminal justice system to reformation from custodial torture of the inmates. But we cannot ignore reforms in prisons only because the fact that it demands great efforts because prison is the important wing in the criminal process. There are many hurdles in the path of the reformation but starting from the baby steps can also bring change in the society. We have to work on making a comprehensive law on prison reforms and in this process the law making bodies should keep in mind the recommendations of the committee and such laws should also comply with the international standards. India is on the path of making reforms in the life of prisoners but it is a very long path which India have to travel.
- The Constitution of India
- The Prisons Act, 1894
- Charles Sobraj v. The Superintendent, Central Jail, Tihar, New Delhi
- Maneka Gandhi v. Union of India
- Parmanad Katara v. Union of India
- Rohit Shekha v. N.D Tiwari
- Rahmath Nisha v. Additional Director General of Prisoner and Others
- Sunil Batra v. Delhi Administration
- AR Antulay v. RS Naik
- Tikam vs State of Uttar Pradesh
- Universal Declaration of Human Rights, 1948
- International convention on civil and political rights, 1966
- The International Covenant on Economic, Social and Cultural Rights
- Declaration on Protection from Torture, 1975
- Convention against torture and other cruel, inhuman and degrading treatment
- Legal Backdrop of Prison Reforms, available at: https://blog.ipleaders.in/legal-backdrop-prison-reforms/ (last accessed on July 21, 2021)
- Prison Reforms in India, available at: https://blog.forumias.com/prison-reforms-in-india-21st-november-2020/ (last accessed on July 20, 2021)
- Rights of prisoners and major judgments on it, available at: https://blog.ipleaders.in/rights-prisoners-major-judgments/ (last accessed on July 21, 2021)
- National Crime Records Bureau, “Crime in India”
- National Crime Records Bureau, “Prison statistics India 2019”
- Government of India, “Report of All India Committee on Jail reforms”
- Government of India, “Expert Committee on ‘Women Prisoners”
- Bureau of Police Research & Development, “National Policy on Prison Reforms and Correctional Administration”
- Sumit Sen and Naresh Singaravelu, “Data | Overcrowded jails and the COVID-19 contagion” The Hindu, July 29, 2020
- Vivek Narayan Sharma, “Prisoners’ Right in India” The Times of India, October 20,2018
- Vinay Kumar, “Danish court says ‘no’ to Kim Davy’s extradition” The Hindu, September 19, 2016
- Prisoners forgotten in COVID-19 pandemic, as crisis grows in detention facilities, available at: https://www.amnesty.org/en/latest/news/2021/03/prisoners-forgotten-in-covid-19-pandemic-as-crisis-grows-in-detention-facilities/ (last accessed on July 21, 2021)
- Supreme Court panel recommends several prison reforms, available at: https://www.thehindu.com/news/national/supreme-court-panel-recommends-several-prison-reforms/article30746675.ece (last accessed on July 21, 2021)
 Prisoners forgotten in COVID-19 pandemic, as crisis grows in detention facilities, available at: https://www.amnesty.org/en/latest/news/2021/03/prisoners-forgotten-in-covid-19-pandemic-as-crisis-grows-in-detention-facilities/ (last accessed on July 21, 2021)
 Legal Backdrop of Prison Reforms, available at: https://blog.ipleaders.in/legal-backdrop-prison-reforms/ (last accessed on July 21, 2021)
 National Crime Records Bureau, “Crime in India” (2019)
 Sumit Sen and Naresh Singaravelu, “Data | Overcrowded jails and the COVID-19 contagion” The Hindu, July 29, 2020
 Prison Reforms in India, available at: https://blog.forumias.com/prison-reforms-in-india-21st-november-2020/ (last accessed on July 20, 2021)
 Supra note 3
 Supra note 7
 National Crime Records Bureau, “Prison statistics India 2019” (Ministry of Home Affairs, 2019)
 Vinay Kumar, “Danish court says ‘no’ to Kim Davy’s extradition” The Hindu, September 19, 2016
 Universal Declaration of Human Rights, 1948
 International convention on civil and political rights, 1966, art. 6(1)
 ibid, art. 10
 Rights of prisoners and major judgments on it, available at: https://blog.ipleaders.in/rights-prisoners-major-judgments/ (last accessed on July 21, 2021)
 1978 AIR 1514
 The Constitution of India, art. 14
 ibid, art. 21
 1978 AIR 597
 (1989) 4 SCC 286
 The Constitution of India, art. 22
 Supra note 16
 (1978) 4 SCC 409
 AIR 1988 SC 1531
 The Prisons Act, 1894, s.4
 The Prisons Act, 1894, s.7
 ibid, s.35
 Government of India, “Report of All India Committee on Jail reforms” (Ministry of Home Affairs, 1980-83)
 Government of India, “Expert Committee on ‘Women Prisoners” (1986-87)
 Bureau of Police Research & Development, “National Policy on Prison Reforms and Correctional Administration” (Ministry of Home Affairs, 2007)
 Supreme Court panel recommends several prison reforms, available at: https://www.thehindu.com/news/national/supreme-court-panel-recommends-several-prison-reforms/article30746675.ece (last accessed on July 21, 2021)
Author: Khushboo, National Law University Delhi
Editor: Kanishka Vaish, Senior Editor, LexLife India.