“Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner’s prejudice, this Court’s writ will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law.”
– Charles Sobraj v. Superintendent Central Jail, Tihar, New Delhi, AIR 1978 SC 1514.
Chapter One: Introduction
Prisons are often placed at the extreme end of the criminal justice system. They inevitably become forgotten institutions that confine persons either facing trial or convicted of crimes. The role of justice is commonly believed to have ended when the accused is convicted and sent to prison to undergo punishment[1]. Yet, time and again, the Courts have intervened to reiterate the obvious: a prisoner does not cease to remain a human being even after punishment. The restriction on liberty imposed by law does not take away one’s right to dignity enshrined under the Constitution of India. She/he is entitled to basic human rights behind bars.
In India, prisons are governed by State laws[2]framed under a century old parent legislation, the Prisons Act of 1894. Very few States/Union Territories such as Andaman & Nicobar Islands, Arunachal Pradesh, Bihar, Daman & Diu, Delhi, Goa, Sikkim, and West Bengal have acts/rules/manuals which were formulated in the 21st century. The changes brought in these state legislations have contributed little in the development of a legal framework which, inter alia, provides for rights of prisoners. This lacking of a rights based approach in the statutory law on prisons is remedied by the Courts through recognition of rights of prisoners in their judicial pronouncements. CHRI’s Rights Behind Bars series aims to document and present to the reader, the progress made by the Courts in developing a rights based jurisprudence on prison administration. Merely changing the nomenclature of prisons to ‘Correction Homes’, as the Supreme Court of India has said, “will not resolve the problem[3].
The past decade has witnessed considerable discussion, debate and work on developing the objectives of incarceration. Today, it includes the concepts of reformation and rehabilitation. However, prisons conditions in general are far from being conducive to serve these objectives. Modern day independent India has inherited its prison system from the colonial rule wherein the objectives were largely limited to deterrence and retribution. However, Indian judiciary has made considerable attempts to challenge these conservative theories of incarceration. For instance, in 2017 the Supreme Court stated “what is practised in our prisons is the theory of retribution and deterrence and the ground situation emphasises this, while our criminal justice system believes in reformation and rehabilitation…”.[4]
The Courts have an indispensable role in ensuring that those behind bars are afforded all rights and protections that are enshrined under the Constitution, statutes and in the international human rights framework. As custodians the State has a duty to protect and uphold rights of those confined. This duty is to be carried out by the Court in the event of the State’s failure to do so. The functions of the judiciary to uphold rule of law extend to prisons too, including prisoners as well those who manage prisons. As the Supreme Court has noted, “The management, conditions of living and future responsibilities of the inmates inside the jails etc., cannot be left to the sole desire or discretion of the executive.”[5]
Bridging the gap between an evolving criminal justice system and text of prison laws thus becomes a significant role that the Court serves, in addition to ensuring that constitutional rights are not abrogated in a prison setting. Judicial pronouncements of the constitutional courts, the High Courts and the Supreme Court constitute ‘law of the land’[6] in India and the executive agencies governing the prisons are duty bound to follow them. As the Supreme Court has said in a famous case[7] on inhuman treatment to a prisoner,. “Whenever fundamental rights are flouted or legislative protection ignored, to any prisoner’s prejudice, this Court’s writ will run, breaking through stone walls and iron bars, to right the wrong and restore the rule of law.”
Chapter Two: Major Problems of Prisoners Relevant in India[8]
Despite the generally low number of people in jail compared to many other countries in the world, there are some very common issues across detention facilities in India. The situation is likely to be the same or worse in many developing countries. Overcrowding, prolonged detention of undertrial detainees, inadequate living conditions, lack of rehabilitation programs, and allegations of indifferent and even cruel behavior of prison staff have repeatedly drawn the attention of critics over the years.
1. OVERCROWDING
Overcrowding in prisons, particularly among under trials, has been a source of concern[9]. The Law Enforcement Assistance Administration National Jail Census of 2020 revealed that 52% of the prison inmates were awaiting trial. If jail overcrowding is to be reduced, the under-trial population must be significantly decreased. This, of course, cannot happen without the courts and the police working together. The three wings of the criminal justice system would need to act in harmony.
2. Conditions in Jails
Tumultuous conditions prevail in UP prisons. There is severe overcrowding, understaffing, and widespread corruption affecting the administration. The State Jail Department data shows that there are 85000 detainees in 62 prisons in the state, as opposed to the capacity of almost 44000. In some prisons like Shahjehanpur, Moradabad, Fatehgarh, and Deoria, the number of inmates exceeds the capacity multiple times. Even as ten new prisons are under construction, the existing ones are as old as over 150 years and in need of extensive modernization, according to a senior department official.
3. Corruption and Coercion
Blackmail by jail staff and the less aggressive form, guard corruption, is common in prisons worldwide. Given the significant power that guards wield over prisoners, these issues are predictable. However, the low salaries that guards are generally paid worsen the situation.
4. Unacceptable Living Conditions
Overcrowding itself leads to unacceptable living conditions. Although some prison reforms have focused on issues like diet, clothing, and cleanliness, unacceptable living conditions persist in many detention facilities across the country.
5. Staff Shortage and Poor Training
Indian jails have an approved strength of 49030 jail staff at various positions, but the current staff strength is only around 40000. This means that only one jail official is available for every 7 detainees, while in the UK, there are 2 jail officials for every 3 detainees.
6. Inadequate prison programs
Despite issues such as overcrowding, lack of staff, and other regulatory challenges, some detention facilities have adopted creative activities. For example, the Art of Living has been implementing a SMART program in Tihar Jail. This program includes two courses each month and regular follow-up sessions.
7. Lack of legal assistance
In India, legal assistance for those who cannot afford counsel is only available at the time of trial and not when the detainee is brought to the remand court. Since most detainees, both in lockups and in jails, have not been tried, the lack of legal aid until the time of trial significantly diminishes the value of the country’s system of legal representation for the poor.
8. Abuse of detainees
Physical abuse of detainees by guards is another on going issue. Some countries continue to allow beating and the routine use of leg irons, shackles, and chains. In many prison systems, brutal beatings are a regular part of prison life. Female detainees are particularly vulnerable to custodial sexual abuse.
9. Health problems in correctional facilities
The overcrowding, poor sanitary facilities, lack of physical and mental activities, and inadequate healthcare.
Chapter Three: Legal Framework of the Rights of Prisoners in India
The extent to which basic freedoms are respected and protected within the context of criminal procedures is a significant measure of society’s development. In India, the harsh prison conditions, prolonged detention, and abuse of under-trial detainees have become the subject of intense debate. When India is considered among countries where basic freedoms are essentially non-existent, then any talk of being the largest democracy in the world begins to sound hollow. In detention facilities and police lock-ups, individuals are not guaranteed the protection they deserve.
Constitutional Protection
The Constitution is the supreme rule in a democratic setup. All laws must conform to the provisions of the Constitution, or else they will be illegal. The Preamble establishes the essence and spirit of the constitution and envisions, among other things, justice, equality, and the dignity of the people. Part III of the Constitution contains an extensive list of fundamental rights that are essential for the realization by the individual of their full, enlightened, moral, and spiritual status.
Protection Against Self-Incrimination
A fundamental rule of the Criminal Justice system is that an accused cannot be compelled to give evidence against themselves. The principle has been recognized in the Indian legal framework. The constitutional protection of this right in India is that no person accused of any offense shall be compelled to be a witness against themselves. The principle aims to eliminate the possibility of a third-degree method being used against the accused person to coerce a confession or any other information from them. Certain provisions in the Evidence Act and the Criminal Procedure Code also seek to achieve a similar objective.
Protection Against Double Jeopardy
It is a well-established principle of the Criminal justice system that no person shall be punished twice for the same offense. The principle is expressed in the well-known adage, “Nemo debit bis vexari; si constat curiae sit genius una et eadem causa.” The principle has been incorporated in the Indian Constitution as follows:
“No person shall be prosecuted and punished for the same offense more than once[10].”
THE PRISONS ACT,1894
The Prisons Act, of 1894, established various boards under the orders of the judiciary to improve the condition of prisoners. The main objective of these boards was to make prisons a better place for both men and women serving sentences. Some of these boards include The Prisons Act, of 1894, which outlines the framework for prison management and administration in India. Although this Act has undergone a few significant changes, the review process of prison issues in India continued. In 1919-20, the Indian Jail Committee published a report emphasizing the ‘reorganization and rehabilitation’ of offenders as the primary goals of prison administration. The need to comprehensively revamp and strengthen the laws relating to prisons has been consistently highlighted.
The current prison management and administration in India are based on The Prisons Act, of 1894, which has seen minimal changes. The report of the Indian Jail Committee 1919-20 marked the first instance in the history of prisons where the ‘reorganization and rehabilitation’ of offenders were identified as the objectives of prison management. Furthermore, various committees and commissions appointed by both local and state governments after Independence have emphasized the humanization of conditions in prisons. The need for a complete overhaul and consolidation of prison-related laws has been consistently underscored.
The Government of India Act 1935 led to the transfer of the subject of prisons from the central list to the control of provincial governments, further reducing the possibility of uniform implementation of a prison policy at the national level[11]. Consequently, state governments have their own regulations for the daily administration of prisons, maintenance of inmates, and formulation of policies.
The Prisons Act, of 1894, which currently governs the management and administration of prisons in India, was primarily based on punitive principles more concerned with prison administration than with the treatment of inmates. However, certain sections of the Prisons Act address the fundamental rights of inmates and their welfare in the modern sense.
Section 27: Partition of Prisoners
1. In a jail containing females, they should be detained in separate structures or separate parts of the same structure to prevent interaction with male detainees.
2. Young detainees should be kept separate from adults.
3. Unconvicted detainees should be kept separate from convicted detainees.
4. Civil detainees should be kept separate from criminal detainees. It is important to address any violations of Section 27 and take appropriate legal action against prison staff who violate these rules. Sexual exploitation and manipulation of young people by adults is inhumane and must be prevented.
Section 29: Isolation
No cell should be used for isolation unless it is equipped to allow the detainee to communicate with a jail official at any time. Any detainee confined in a cell for more than 24 hours should be visited at least once a day by the Medical Officer or a medical staff member.
Section 33(1)
Every civil detainee and unconvicted criminal detainee unable to provide themselves with adequate clothing and bedding should be provided with necessary clothing and bedding by the Superintendent.
Section 39
In every jail, a hospital or suitable place for the care of sick detainees should be provided.
Section 40: Visits to Civil and Unconvicted Detainees
Visits by friends and family to detainees are essential for their well-being. These visits should not be denied, except as necessary for security reasons. The purpose of imprisonment is to rehabilitate, and facilitating such visits helps achieve this goal. Section 56: Control in Irons
Confinement in irons should only be used in the gravest of circumstances. Chaining detainees in irons is brutal and should only be done when ensuring their safety is impossible.
Section 58: Mechanical Limitations
No detainee will be placed in irons or under mechanical limitations by a jailor except in cases of dire need, in which case the Superintendent must be notified immediately.
Chapter Four: Conclusion, Suggestions, and Implications
The concept of human rights is free from all limitations, and everyone has a natural right to access human rights, whether they are a detainee or freeman. A detainee is an individual who has a conflict with the law, and they should have access to all human rights and limited legal rights. No one should arbitrarily withdraw the rights of detainees. Our nation has a history of bondage and lack of slave rights, and the conditions of detainees today are similar to those of slaves. The government and judiciary need to take concrete steps to protect the rights of detainees who are under legal authority or are facing trial.
To protect their rights, our authorities need to take the following steps:
– Synchronize the available prison management with the current Indian criminal provisions, punishments, and justice system to improve its efficient and effective use.
– The government needs to establish more committees to audit all the management and use of resources provided to the administration, and prison management should submit an annual report to the committee to create a proper record.
– Authorities need to focus more on young offenders aged between 18-21 years since they are the future of our nation and undergo significant mental development. Prison authorities need to address their development.
– Arrange and manage different detainees based on their crimes, charges, and punishment. This will help maintain the prison reform system and reduce the crime rate.
-Many jails are dealing with overcrowding issues, leading to inadequate facilities and insufficient supervision of inmates.
The government needs to build more jails in different cities to address this problem. The challenges in handling abuses in police custody and prisons are worsened by the decentralization of authority in India. Simply addressing these abuses at the central government level is not enough. The governments of the various states must commit to ending police torture and the mistreatment of lower-class Indians, who make up the majority of the prison population and enforce these decisions.
[1] The convict thereafter has the right to appeal against his conviction and sentence to superior courts (Accessed: 6 June 2024).
[2] ‘Prisons’ fall under State List in the Seventh Schedule to the Constitution of India. The management and administration of Prisons is in the exclusive domain of State Government. Prisons in each State are categorised as Central Prison, District Prison, Sub-jail (also known as Revenue Prisons in some states), Women Prison and Special Prison (Accessed: 8 June 2024).
[3] Order Dated 15.09.2017 in In Re-Inhuman Conditions in 1382 Prisons v. State of Assam and Ors., WP(C) 406 / 2013(Accessed: 8 June 2024).
[4] Ibid
[5] Jasvir Singh v. State of Punjab 2014 SCC OnLine P&H 22479 (Accessed: 10 June 2024)..
[6] Article 141 of the Constitution of India. The law declared by the Supreme Court is binding throughout the country whereas pronouncements of the High Courts are binding within their respective jurisdictions and have persuasive value as far as other High Courts are concerned(Accessed: 12June 2024).
[7] Charles Sobraj v. Superintendent Central Jail, Tihar, New Delhi, AIR 1978 SC 1514(Accessed: 12 June 2024).
[8] Aishwarya Malhotra and Dr. Ekta Gupta, “Behind Bars in Bharat : legal insights into prisoner’s Rights and Wellbeing”, Volume IV Issue II , 505 , Indian Journal of Integrated Research In Law ( 2024) (Accessed: 16 June 2024).
[9] Overcrowding of Prisoners in India. Available at https://www.freelaw.in/legalarticles/Overcrowding-of-Prisons-in-India(Accessed: 16 June 2024)..
[10] State v Orth 359 S.E.2d 136 (1987) (Accessed: 18 June 2024).
[11] https://home.rajasthan.gov.in/content/dam/pdf/StaffCorner/Training-Material/Useful-Presentations-And-Videos/Overview%20of%20prisons%20in%20India.pdf/(Accessed: 18 June 2024).
Author: Kanishka Rathore
Juris Centre 