“It is said that no one truly knows a nation until one has been inside its jails.”[1]
-Bharat Ratna late Dr Nelson Mandela, Former President of Republic of South Africa.
For the topic of prisons and prisoner’s rights, who is more authentic than this gentleman, who was in prison for more than a quarter of a century and also the President of the nation which boasted the racial discrimination as it’s USP, once upon a time?
In India the prisoners’ rights have been always a bone of contention between the state and the Human Rights Organizations, irrespective of the political party in governance.
India gained independence on 15th August, 1947 and the rule of law according to the Indian Constitution started from 26th January, 1950.
The constitution conferred the fundamental rights on every citizen according to Part III, Articles 12-35. The prisoners, as defined under section 3 (2) and section 3 (3) of the Prisons Act, 1894 are also citizens and as such, have same rights as the general public, just with reasonable geographical restrictions on movements.
Over the years if we accumulate the complaints made by the prisoners, we can conclude that they are basically of inhuman living conditions, of deplorable quality of food, clothing, shelter space and hygiene.
Every prison has these facilities provided by the state for a specific number of prisoners but the sheer overcrowding of the prisoners coupled with limited resources play the spoil sport.
So, in the battle of protecting rights of the prisoners, the efforts should be two pronged-
(A) first to assess correctly the number of probable inmates for at least next thirty years and (B) at the same time, try to restrict the number of prisoners to the minimum by using innovative ways to punish an offender with alternative arrangements to the actually detaining him in prison.
Now the first part is a comparatively easy exercise, the second being bit trickier as it requires so many conducive elements, ranging from better economy, cultured citizens, better employment opportunities to healthy social and family atmosphere and integrity of character.
- Assessment of correct number of probable inmates for at least next thirty years.
The following table gives the population and occupancy rate of prisons in India annually:[2]
| Year | No. of Inmates | Occupancy Rate | ||
| Male | Female | Total | ||
| 2009 | 122.8% | |||
| 2010 | 115.1% | |||
| 2011 | 356,902 | 16,024 | 372,926 | 112.1% |
| 2012 | 368,184 | 16,951 | 385,135 | 112.2% |
| 2013 | 393,804 | 18,188 | 411,992 | 118.4% |
| 2014[ | 400,855 | 17,681 | 418,536 | 117.4% |
| 2015 | 401,789 | 17,834 | 419,623 | 114.4% |
| 2016 | 414,505 | 18,498 | 433,003 | 113.7% |
| 2017 | 450,696 | 115.1% | ||
| 2018 | 446,842 | 19,242 | 466,084 | 117.6% |
From the table, the median number of increases per annum works out to be 13308. If we want a planning for next 30 years, it comes to 399240. So, on an average approximately, 4 lakh prisoners will be added and we have to plan accordingly. This planning will subsume the current overcrowding also.
That is easier said than done with present limited financial allocation by the government. Innovative concepts like building the new prisons with help of private partners in form of corporate contributions is the way to be explored. Incentives like treating this contribution under Corporate Social Responsibility (CSR) should be offered.
- Restricting the number of prisoners –
Here the biggest culprit is the undertrials. The simple reason is the pendency at District sessions level and under. There is pendency of trials at High Courts and Supreme Court also, but the numbers at the district and sub-district levels are mind boggling.[3]
Uttar Pradesh, Maharashtra, Bihar, West Bengal and Rajasthan have a total of 1.96 crores of pending cases, half of them, i. e. nearly 1 crore are criminal cases, which have a potential to add burden on the prisons already creaking.
Out of the prisoners locked in prison, 70% are undertrials.[4] They simply await their turn for the trial to commence, conviction or acquittal being a very distant thing. Their stay at the prison’s ranges from a few days to few years. In fact, the number of undertrials who are in prisons for more than a year went up in the years from 2000-2019.
So, for protecting the prisoners right at fundamental level, it is very necessary to control and keep tabs on the number of undertrials.
All the judicial heads need to put on their thinking caps and suggest novel ways to faster the trials of petty offences which have punishment terms ranging under 1 year.
The main culprit here is the overloading of the judges and Magistrates. The Civil Judge in the morning session doubles as Sessions one in the afternoon. The government thinks of saving salaries of one sanctioned post by allocating his load to other. But for the society, this proves to be a very costly saving, directly affecting the number of undertrials adversely and compromising their rights.
The crime rate in society reflects its overall well-being, or lack of it. Merely passing of ordinances, acts and laws does not alter the ground reality. The crime increases in direct proportion to the wrong acquittals on flimsy grounds of high and mighty, idolized by the public and if unchecked, the state police compensate it with equally wrong convictions or plain arrests on equally flimsy grounds.
Both scenarios are detrimental to not only prisoners’ rights but rights of every citizen.
Robust backing of sanctions and respect from the public to the rule of law out of positive fear of sanctions is the key to safeguarding of prisoners’ rights.
So, prisoners rights earnestly are not independent of rights of free people, but they derive from the same.
To sum up, a quote from Justice Anthony M Kennedy of USA is very apt.
“A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society”[5]
― Justice Anthony M. Kennedy
[1] https://www.azquotes.com/quote/363682
[2] “Prisons Statistics India 2016” (PDF). National Crime Records Bureau. Retrieved 12 May 2019.
[3] https://www.bloombergquint.com/law-and-policy/indias-pending-court-cases-on-the-rise-in-charts#:~:text=overburdened%20judicial%20system.-,India%20now%20has%20almost%204%20crore%20pending%20cases%20spanning%20the,1%2C%202020.
[4] https://www.thehindu.com/data/data-70-prisoners-in-india-are-undertrials/article32569643.ece
[5] https://www.goodreads.com/quotes/10099413-a-prison-that-deprives-prisoners-of-basic-sustenance-including-adequate
Author: Mahesh Govind Karmalkar from Lokmanya Tilak Law College, Solapur.
Juris Centre 