Context

• In an acknowledgement that the more than a century-old system of prisons in India needs repair.
• In this context, the Supreme Court formed a committee on prison reforms.  Headed by former Supreme Court judge, Justice Amitava Roy, it is to look into the entire gamut of reforms to the prison system.
• But this is not the first time that such a body is being set up, examples being the Justice A.N. Mulla committee and the Justice Krishna Iyer committee on women prisoners (both in the 1980s).
• While marginal reforms have taken place, these have not been enough to ensure that prison conditions are in tune with human rights norms.

Reasons for Overcrowding in Jails

• In India, the publication, Prison Statistics India, brought out by the National Crime Records Bureau will provide food for thought for the Justice Roy Committee.
• In 2015, there were nearly 4.2 lakh inmates in 1,401 facilities, with an average occupancy rate of 114% in most.
• About 67% of total inmates were under trials, a commentary on the speed and efficiency of India’s criminal justice system.
• Occupancy by undertrials– 67% of the people in Indian jails are under trials which is extremely high by international standards like it is 11% in UK, 20% in the US and 29% in France. Males at 400,855 make up 95.8% of prisoners while females at 17,681 represent 4.2%.
• Judicial backlogs-Due to 1 crore cases (2016) pending in various courts of the country, jails across the country will remain overcrowded in the absence of any effective systemic intervention.
• Inadequate prison capacity- Most Indian prisons were built in the colonial era, are in constant need of repair and part of them are uninhabitable for long periods.
• Restricted access to legal representatives-Many inmates are unaware of their rights and cannot afford legal aid, limited ability to communicate with lawyers from within the jail premises hampers their ability to defend themselves.
• Problems in acquiring bail – For poor and marginalized it is also difficult to get bail which leaves them no option but to stay in jails and wait for courts final order.
• Unnecessary arrests: Over 60 per cent of arrests were unnecessary and such arrests accounted for 3 per cent of jail expenditure.

Issues with prisons in India

1. Overcrowding: According to Centre’s reply in response to a question in the Lok Sabha in 2017, 149 jails in the country are overcrowded by more than 100% and that 8 are overcrowded by margins of a 500%. Overcrowding takes affects the already constrained prison resources and separation between different classes of prisoners difficult.
2. Under-trials– More than 65% of the prison population in India are under trials. The share of the prison population awaiting trial or sentencing in India is extremely high by international standards; for example, it is 11% in the UK, 20% in the US and 29% in France.
3. Lack of legal aid: Legal aid lawyers are poorly paid, and often over-burdened with cases. Further, there is no monitoring mechanism to evaluate the quality of legal aid representation in most states.
4. Unsatisfactory living conditions: Prison structures in India are in dilapidated condition. Further, lack of space, poor ventilation, poor sanitation and hygiene make living conditions deplorable in Indian prisons.
5. Shortage of staff: The ratio between the prison staff and the prison population is approximately 1:7. In the absence of adequate prison staff, overcrowding of prisons leads to rampant violence and other criminal activities inside the jails.
6. Torture and Sexual abuse: Prisoners are subjected to inhuman psychological and physical torture. Sexual abuse of persons in custody is also part of the broader pattern of torture in custody.  The National Human Rights Commission observes custodial violence as “worst form of excesses by public servants entrusted with the duty of law enforcement.”
7. Custodial deaths: In 2015, a total of 1,584 prisoners died in jails. A large proportion of the deaths in custody were from natural and easily curable causes aggravated by poor prison conditions. Further, there have been allegations of custodial deaths due to torture
8. Underpaid and unpaid labor: Labor is extracted from prisoners without paying proper wages.
9. Discrimination: According to Humans Rights Watch, a “rigid” class system exists in Indian prisons. There is rampant corruption in the prison system and those who can afford to bribe, often enjoy luxuries in prison. On the other hand, socio-economically disadvantaged prisoners are deprived of basic human dignity.
10. Inadequate security measures and management:  Poor security measures and prison management often leads to violence among inmates and resultant injury and in some cases death.
11. Health: In prison the problem of the overcrowding, poor sanitary facilities, lack of physical and mental activities, lack of decent health care, increase the likelihood of health problems. Further, mental health care has negligible focus in Indian prisons.
12. The condition of women prisoners: Women prisoners face a number of challenges including poor nutritional intake, poor health and lack of basic sanitation and hygiene. Further, there are alleged instances of custodial rapes which generally go unreported due to the victims’ shame and fear of retribution.
13. Lack of reformative approach: Absence of reformative approach in the Indian prison system has not only resulted in ineffective integration with society but also has failed to provide productive engagement opportunities for prisoners after their release

SC Judgements

Through a number of judgements {like Maneka Gandhi case (Right to life and personal with dignity), Ramamurthy vs. State of Karnataka (on conditions of prisons) Prem Sankar Shukla vs. Delhi Administration (no handcuffing), Sunil Batra I and II vs. Delhi Admin (rights of prisoners)} on various aspects of condition of prisoners and prison administration, the Supreme has upheld three broad principles regarding imprisonment and custody

1. A person in prison does not become a non-person;
2. A person in prison is entitled to all human rights within the limitations of imprisonment
3. There is no justification for aggravating the suffering already inherent in the process of incarceration.

Legislations

1. The Prisons Act, 1894: It contains various provisions relating to health, employment, duties of jail officers, medical examination of prisoners, prison offences etc.
2. Transfer of Prisoners Act, 1950 – The Act deals with the transfer of a prisoner from state to another state
3. Repatriation of Prisoners Act, 2003: The act enables the transfer of foreign prisoners to the country of their origin to serve the remaining part of their sentence. It also enables the transfer of prisoners of Indian origin convicted by a foreign court to serve their sentence in India
4. Model Prison Manual 2016: It aims at bringing in basic uniformity in laws, rules and regulations governing the administration of prisons and the management of prisoners across all the states and UTs in India
5. Legal service Authority Act, 1987: According to the law, a person in custody is entitled to free legal aid.

Committees and Recommendations

Various Committees and Commissions have been constituted by the State Governments as well as the Government of India to study and make suggestions for improving the prison conditions and administration.

Mulla Committee, 1983

• The major recommendations of the committee included:
• The setting up of a National Prison Commission to oversee the modernization of the prisons in India
• Putting a ban on clubbing together juvenile offenders with the hardened criminals in prison and enacting a comprehensive and protective legislation for the security and protective care of delinquent juveniles
• Segregation of mentally ill prisoners to a mental asylum
• The conditions of prison should be improved by making adequate arrangements for food, clothing, sanitation and ventilation etc.
• Lodging of under trial in jails should be reduced to bare minimum and they should be kept separate from the convicted prisoners

Krishna Iyer Committee, 1987

• The committee mandated to study the condition of women prisoners in the country, recommended induction of more women in the police force in view of their special role in tackling women and child offenders.

In 2005, the Government of India constituted a high powered committee under the chairmanship of Director General, Bureau of Police Research and Development (BPR&D). This committee used the reports of Justice Mulla Committee Report & Justice Krishna Iyer Committee and made several additional and new recommendations. It also drafted a National Policy on Prison Reforms and Correctional Administration, 2007.

Steps taken

1. Modernization of Prisons scheme: The scheme for modernisation of prisons was launched in 2002-03 with the objective of improving the condition of prisons, prisoners and prison personnel. Various components included construction of new jails, repair and renovation of existing jails, improvement in sanitation and water supply etc.
2. E-Prisons Project: It aims to introduce efficiency in prison management through digitization
3. Draft National Policy on Prison Reforms and Correctional Administration:

India’s International Obligations

International Covenant on Civil and Political Rights (ICCPR):

It is the core international treaty on the protection of the rights of prisoners. Key features include:

• It imposes a requirement of separation of prisoners in pre-trial detention from those already convicted of crimes.
• It states that there is a requirement that the focus of prisons should be reform and rehabilitation, not punishment
• It bans torture or other cruel, inhumane or degrading treatment

International Covenant on Economic, Social and Cultural Rights (ICESR):

• It acknowledges that the prisoners have a right to the highest attainable standard of physical and mental health. Further, second-generation economic and social human rights as set down in the ICESR also apply to the prisoners.

United Nations Standard Minimum Rules for the Treatment of Prisoners or Nelson Mandela Rules:

Fundamental principles on Nelson Mandela Rules are:

• Prisoners must be treated with respect for their human rights and dignity
• No torture or inhumane practice towards prisoners
• Set an objective to prevent recurrence of crime
• Everyone in the prison should be safe at all times
• There should be no discrimination and administrators should take into account needs of individual prisoners especially the vulnerable ones

UN Convention against Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT): India signed UNCAT in 1997. However, has not yet ratified it.

International Best Practice

Prison System- Norway:

Norway’s incarceration rate is only 75 per 100,000 people. Further, it has one of the lowest recidivism rates in the world at 20%. The criminal justice system in Norway focuses on the principle of restorative justice and rehabilitating prisoners. 30% of prisons in Norway are open and all prisons ensure healthy living conditions, vocational training and recreational facilities.

Prison Reforms are not coming for Implementation:

• The question often asked by governments is, in these days of extreme fiscal stress, why should state resources be diverted to a ‘negative exercise, whose benefits are dubious’?
• There are those who believe that if you keep improving prison conditions, there is likely to be an attendant impact on the incidence of crime.
• This accounts for the reluctance of many criminal justice administrators to employ or enlarge non-prison alternatives such as community service.
• The offshoot of all this is growing numbers of prisoners and the woeful incapacity of governments to build more and larger prisons.
• This is why jail officials are often asked to ‘somehow manage’ with existing modest facilities.

Way Forward

1. There is a dire need to address the issue of overcrowding in Indian jails. Further, sincere efforts should be made to improve living conditions which include better sanitation and hygiene, adequate food and clothing.
2. There should be an urgent focus on addressing health issues and ensuring access to medical care among prisoners. Women’s health needs, covering mental, physical, sexual and reproductive health, require particular attention.
3. Efforts should be made to reform offenders in the social stratification by giving them appropriate correctional treatment. Initiatives should be taken to impart vocational training to prisoners and ensure proper rehabilitation and social inclusion after release
4. The government must take initiative to improve the conditions of under trial prisoners which can be achieved by speeding of the trial procedure, simplification of the bail procedure and providing effective legal aid
5. Issues related to custodial violence and sexual abuse should be dealt with effective monitoring and stringent punishments of those involved in such violence.
6. Open prison as an effective institution for rehabilitation of offenders has been highlighted by Supreme Court as late as 1979 in Dharambeer v State of U.P case. The open prisons should be encouraged as a correctional facility.
7. It is also important to address the issue of inadequate prison management by recruiting more prison staff, imparting proper training and undertaking the modernization of prisons.

Conclusion

• More than a century-old system of prisons in India needs urgent repair.
• Overcrowding, number of undertrials than convicted prisoners, delayed justice, inhumane conditions, brutality and lack of basic human need facilities are some of the major issues in Indian prisons.
• Justice Amitava Roy committee is a ray of hope in the direction of prison reforms, but without political reforms in India’s criminal justice system are impossible