Neglected reforms

Several committees have over the years made recommendations for improving the conditions in Indian prisons, but these remain unimplemented.

Prisoners making use of a petition box in the Tihar Jail in New Delhi. A file picture.

Smita Chakraburtty's inspection of Bihar’s 58 prisons and her subsequent report emphasise, more than anything else, the need for periodical study of India’s prisons by objective, independent and committed observers and publication of their findings in order to monitor the extent to which the human rights of prisoners are respected.

In the late 1700s, the British reformer John Howard toured Europe to observe the conditions in prisons. His book The State of the Prisons in England and Wales (1777) influenced the passage of a law that led to the construction of prisons designed partly for reform in the United Kingdom. It is too early to say whether the publication of the Bihar State Legal Services Authority’s (BSLSA) landmark report “Prisons of Bihar”, will lead to similar awakening among our lawmakers and the Central and State governments to act on the recommendations made by independent institutions.

The appointment of the All India Jail Committee (1919-1920) was a landmark in the history of prison reforms in India. It identified reformation and rehabilitation of offenders as one of the objectives of prison administration. The constitutional changes brought about by the Government of India Act of 1935 resulted in the transfer of the subject of prisons from the Centre to the control of provincial governments, and this reduced the possibility of uniform implementation of the jail committee recommendations.

Some eminent freedom fighters who had first-hand knowledge of the conditions in prisons succeeded in persuading the governments of States such as West Bengal, Tamil Nadu and Maharashtra, to appoint committees to inquire into the conditions in prisons and suggest improvements in consonance with their local conditions.

When India gained independence in 1947, the memories of the horrible conditions in prisons were still fresh in the minds of political leaders. So on assuming power, they embarked on prison reforms. A number of jail reforms committees were appointed by the State governments to achieve a certain measure of humanisation of prison conditions and to put the treatment of offenders on a scientific footing.

On invitation from the Central government, Dr W.C. Reckless, a United Nations Expert on Correctional Work, visited India in 1951-52 to study the prison administration and suggest ways and means of improving it. He made a plea for transforming prisons into reformation centres and advocated establishment of new prisons. With India’s republican Constitution choosing to place prisons in the State List of the Seventh Schedule of the Constitution, the problem of ensuring uniformity in prison reforms across the States remained. Although some organisations have suggested that the subject of prisons should be in the Concurrent List so that Parliament and the State Assemblies will have concurrent jurisdiction to legislate on the subject, the governments at the Centre and in the States have not shown sufficient interest in the proposal so far.

Mulla committee recommendations The All-India Committee on Jail Reforms under the chairmanship of Justice A.N. Mulla (1980-83) made 658 recommendations. These were circulated to all the States and Union Territories for implementation. The committee suggested the need for an immediate national policy on prisons. Among the modalities, it suggested incorporation of the principles of management of prisons and treatment of offenders in the Directive Principles of State Policy, and a uniform and comprehensive legislation embodying modern principles and procedures regarding reformation and rehabilitation of offenders.

The committee recommended a proper mechanism to ensure that no undertrial prisoner is unnecessarily detained. This could be achieved by speeding up trials, simplifying bail procedures and holding periodic review of cases.

It recommended that the government endeavour to provide new alternatives to imprisonment such as community service, forfeiture of property, payment of compensation to victims, and public censure. It also recommended that the living conditions in every prison and allied institution meant for the custody, care, treatment and rehabilitation of offenders should be compatible with human dignity in all aspects such as accommodation, hygiene, sanitation, food, clothing and medical facilities.

The Mulla Committee report said prolonged incarceration had a degenerating effect on prisoners and was not necessary either from the point of view of their reformation or from that of the protection of society. The term of sentence for life in such cases, it recommended, should be made flexible in terms of actual confinement so that such a person might not have to necessarily spend 14 years in prison. Unfortunately, even the Supreme Court has sought to dilute this recommendation by justifying imprisonment beyond 14 years as an alternative to imposing the death sentence.

The committee underlined the importance of opening up the prisons to some kind of positive and constructive public discernment. Selected eminent public persons should be authorised to visit prisons and give an independent report on them to appropriate authorities, it had recommended.

Among the other recommendations of the committee, which remain unimplemented, are the ones relating to the setting up of the national prison commission to modernise prisons and the complete separation of juvenile offenders from adult prisoners, although the Juvenile Justice Act provides for it. A specific proposal of the committee to amend the preamble of the Indian Penal Code to make reformation and rehabilitation of offenders as objectives of punishment was rejected by the Central government because the Law Commission had not made a similar proposal.

Colonial law In 2003, the Central government requested State governments to pass resolutions under Article 252 of the Constitution to enable Parliament to enact a new law to replace the outdated Prisons Act, 1894. It did not receive the much response from State governments. Thereafter, the Ministry of Home Affairs, through its Bureau of Police Research and Development (BPRD), published its Model Prison Manual (MPM) in 2003. In 2007, the BPRD, in a paper on National Policy on Prison Reforms and Correctional Administration, supported the view that the enactment of a uniform and comprehensive legislation on prisons by Parliament would be possible as India is a party to the International Covenant of Civil and Political Rights, 1966. Ratification of international treaties can confer legislative jurisdiction on Parliament, even if the subject of the entry falls under the State List.

According to the BPRD, the low political and budgetary priority prisons have received can be attributed to the lack of awareness among the public of the state of correctional services within the four walls of prisons.

The MPM asked State governments to constitute a board of visitors comprising official and non-official members at district and subdivisional level to monitor the correctional work in prisons. Although the board should include two social workers, one of whom must be a woman. The fact that they may be appointed by the State government does not inspire the confidence of those seeking prison reform.

In 2007, a 13-member committee set up by the Centre under the chairmanship of the then Director General of the BPRD, N.C. Joshi, made several recommendations to humanise prisons. Although some of the recommendations are controversial, many of them were found to be prisoner-friendly. As most of the committee members were prison or police officials, with only one from the National Human Rights Commission (NHRC), it was indicated that there would be no resistance from the prison administration if the recommendations aimed at humanising prisons were implemented.

The NHRC has made several recommendations through seminars conducted by it in 2011 and 2014 to reform prisons. It found that State governments were lagging behind in implementing them. The recommendations relate to prison administration, modernisation, undertrial prisoners, health, sanitation and hygiene in prisons, infrastructure issues, welfare measures for prisoners and their families and issues affecting women prisoners and their children kept in prisons.

In 2013, the Supreme Court used a letter written by a former Chief Justice of India, Justice R.C. Lahoti, in his capacity as a citizen, to the then Chief Justice of India, about the inhuman conditions in the 1,382 prisons of the country as the basis of a public interest litigation (PIL) petition. Justice Lahoti wrote in his letter that even goods are subject to the law of bailment; the bailee is bound to take so much care of the goods as a man of ordinary prudence would take of his own goods. How can the state disown its liability to the life and safety of a prisoner taken into its custody? he asked.

Among the issues he dealt with in the letter were overcrowding in prisons, unnatural deaths of prisoners, who could have unravelled large-scale criminal conspiracies and provided names of high-profile persons involved in them, and non-compliance with the Prison Manual and the rules.

The hearing of the PIL has brought to light how access to justice depends on the socio-economic strata of the accused and their inability to furnish a bail bond. The Supreme Court is currently monitoring, through the National Legal Services Authority, the progress of the States in securing the release of those undertrial prisoners who are eligible for release but are unable to furnish a bail bond.