Updated: Jun 19, 2020
Author: SHIFA QURESHI,
Aligarh Muslim University
A recent data report of 2018 says India’s judge-population ratio was 19 judges per 10 lakh and more than 2 Crore cases pending in the courts and almost 67% of people in the Indian prisons are ‘Undertrials.’ Hence it becomes necessary to improve the pathetic conditions of prisons and prisoners. Prisons have become a place of torture where they not only suffer physical and sexual abuse but are denied basic necessities and human rights to which every citizen is entitled. There should be the creation of educational, vocational, meditation, and yoga centers for them. Despite government dismal efforts to deal with the conditions, these initiatives will provide prisoners enjoy certain human rights, which they are entitled to.
In the literal sense, a prisoner refers to any person who is kept under custody in jail or prison because he/she has committed an act that is prohibited by the law of the land. Section 3(2) of The Prisons Act, 1894 defines, “‘criminal prisoner’ means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or by order of a Court-martial.” And even further Section 3(4) defines “civil prisoner” means any prisoner who is not a criminal prisoner.”
Indian Constitution nowhere expressly states provisions for the protection of prisoners or prison justice, but the framers of our constitution have guaranteed certain rights in Part III i.e. Fundamental Rights of Indian Constitution for the prisoners to avail because a prisoner is also a ‘person.’
Article 14 of the Indian Constitution, assures its citizens that “The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.” and also provides the concept of reasonable classification. It says that like should be treated alike. These can be especially useful to determine various categories of prisoners and their classifications with the object of reformation.
When a person is convicted or put in prison his status is different from that of an ordinary person. It’s obvious that a prisoner cannot claim all the fundamental rights that are available to an ordinary person their need to be some restrictions. Indian citizens have six freedoms under Article 19 of the Constitution. But out of these prisoners can never enjoy three freedoms such as ‘Freedom of movement’, ‘Freedom to residence and to settle’, ‘Freedom of Profession’. Whereas they can avail, ‘Freedom of Speech and expression’ and ‘Freedom to become a member of an association.’ Other than the above mentioned, provisions of some article are relevant though they don’t talk about prisoners right, among them are, Article 20 (1&2), Article 21 and Article 22(4-7).
In Charles Shobraj v.Superintendent, the Court held that ‘Like you and me, prisoners are also human beings. Hence, all such rights except those that are taken away in the legitimate process of incarceration still remain with the prisoner. These include rights that are related to the protection of basic human dignity as well as those for the development of the prisoner into a better human being’
‘Sunil Batra v. Delhi Administration’ is a case where the court comprehensively recognized the rights of prisoners. The judgment held that: “No prisoner can be personally subjected to deprivation not necessitated by the fact of incarceration and the sentence of the court. All other freedoms belong to him to read and write, to exercise and recreation, to meditation and chant, to comforts like protection from extreme cold and heat, to freedom from indignities such as compulsory nudity, forced sodomy, and other such unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self-expression, to acquire skills and techniques. A corollary of this ruling is the Right to Basic Minimum Needs necessary for the healthy maintenance of the body and development of the human mind. This umbrella of rights would include the Right to proper Accommodation, Hygienic living conditions, Wholesome diet, Clothing, Bedding, timely Medical Services, Rehabilitative, and Treatment programs.’
RIGHTS OF PRISONERS
Article 21 of the Constitution of India implicitly provides the following basic rights to prisoners:
· Right of inmates of protective homes
· Right to free legal aid
· Right to a speedy trial
· Right against cruel and unusual punishment
· Right to a fair trial
· Right against custodial violence resulting in death in police lockups or encounters
· Right to live with human dignity
Apart from the above-mentioned rights, Constitution of India also provides the following rights to the prisoners: -
· Right to meet friends and consult a lawyer
· Rights against solitary confinement, handcuffing and bar fetters (protection from torture)
· Right to reasonable wages in prison
PROBLEMS OF PRISONERS IN PRISON
The major problems the Indian prisons and prisoners face are as followings:
· Overcrowding in jail
· Delay in Trial
· Torture and ill-treatment
· Neglect of health and hygiene
· Inadequate food and clothing
· Deficiency in communication
· Streamlining jail visit
· Management of open-air prison
In Rama Murthy V State of Karnataka honorable Supreme Court of India specified nine problems that the Indian Prisons are afflicted with. These problems also contribute to the sufferings of prisoners.
· 80% of prisoners are undertrials
· Delay in the trial.
· Sometimes prisoners are not released even if bail is granted.
· Lack of or insufficient provision of medical aid to prisoners
· The callous and insensitive attitude of jail authorities
· Punishment carried out by jail authorities not coherent with the punishment given by the court.
· Harsh mental and physical torture
· Lack of proper legal aid
· Corruption and other malpractices
Despite so many rules and judgments passed by various courts, there is a continuous violation of the rights of these prisoners. The practice of torturing the prisoners in prison has been highly prevalent in India from time immemorial. They use physical force upon the prisoners in the name of extracting confessions and investigating crimes.
Joginder Kumar v.State of UP and Ors is a case where the Supreme Court said that –
· “The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law.” (Para 10)
· “The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests”. (Para 8)
· “A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties, and privileges, on the one hand, and individual duties, obligations, and responsibilities on the other; of weighing and balancing the rights, liberties, and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violator or the law abider” (Para 9)
1. Abuse of Prisoners
Abusing prisoners physically by guards is one of the incessant problems. They are subjected to untold suffering in prisons. In many cases, prisoners are beaten to death by the prison authorities. Even more awful is that the authorities can obtain false certificates from doctors to prove that the deceased had committed suicide.
Jail authorities adopt many forms of abuse (to fulfill their motive) which include,brutal assault, Solitary Confinement, blindfolding them with Glycerine soaked clothes, making them bend for long hours, frightening them with sudden bursts of teargas shells, making them stand in water for hours, forcing them to remove their mustache or tonsure from their heads, keep them nude, frightening them with sudden gunshots, not providing them water, food or medical facilities, and even forcing them to sign papers composed in a language unknown to them. Women prisoners have to deal with sexual assault in India. Prisoners with their hands bound behind their backs are dragged to main grounds and beaten. Numerous prisoners are rotting in jails without trial for trivial offences.
2. Death in Jails
Death in prisons can be broadly classified into two categories i.e. natural deaths and unnatural deaths. Here unnatural death includes Suicide, Murder by co-prisoners, death due to firing, death due to negligence or excesses by prison personnel, etc.
Death of a prisoner should be a matter of grave concern for prison administration due to its increasing numbers. Even sometimes public protest against such deaths driving media, NGO and Human Rights Commission attention. These cases are quite intriguing because there have been no steps by the authorities to correct the same. There are no such serious efforts to go deep into such incidents and to find factors leading to such tragedy. There should be an identification of such prisoners under stress and they should be provided counseling by welfare officers or by counselors of NGOs. For example: due to increasing suicide cases prison authorities have set up ‘Gumsum Panchayat’ in every ward to help stressful people.
Furthermore, after the screening, observation, and identification of such prisoners, these prisoners should be placed in a safe place with a visit of a qualified mental health professional, who could determine the degree of risk, the appropriate level of help and supervision needed and could provide an appropriate course of mental health treatment.
3. Inadequate living conditions
Many governmental reports have pointed out the inhumane conditions prisoners live. They do not have access to basic necessities and needs. Some of the prevalent issues which came to the limelight are diet, clothing and cleanliness, unsatisfactory living conditions. Overcrowding of jails is in itself a major problem that contributes to the sufferings of prisoners. This issue further creates more problems like sanitation, shortage of medical facilities, lack of hygiene, etc. Since these prisons do not conform to the structurally standards appropriately, they are not able to provide humane conditions when the prisons are overcrowded. The majority of Indian prisons have been housing double the number of prisoners they should accommodate.
There is no sufficiency of water for daily use, and hence as a result many inmates can’t bath for weeks and even months. The Model Prison Manual specifies one toilet for every 10 inmates whereas if we see the actual number it’s 75 inmates are forced to use a single toilet in most of the Indian prisons. Even though there is ample space available still adequate toilets are not constructed. Prison authorities claim regular medical checks and strict monitoring of communicable diseases in prisons but if we see the numbers, we get to know that inmates continue to live under the ever-present threat of contracting AIDS or TB resulting in death. Today many cases of such diseases could pass from one person to another, in Indian prisons. Overcrowding further escalates the problem.
4. Poor Spending on Healthcare and Welfare
In Rasikbhai Ramsingh Rana v. State Of Gujarat, the High Court of Gujarat gave a judgment revolving around that the ‘Right to medical treatment is the basic human right’. The petitioners, in this case, were convicted prisoners and were suffering serious ailments in the Central Prison, Vadodara. They were deprived of proper and immediate medical treatment. As a result, the court directed the jail authorities to take proper care of ailing convicts.
The honorable SC in many cases has held ‘Right to health care’ is an essential ingredient under Article 21 of the Constitution. Article 21 imposes an obligation on the state to preserve life. But still, ignorance prevails when it comes to the health of prisoners and their wellbeing.
There are many factors which affect their health, which include physical and mental health, like lack of nutrition or physical exercise, excessive lock-up hours due to lack of staff, heavy smoking, and widespread anxiety among the inmates, illegal cooking inside the barracks or cells and unhygienic living conditions. Since they are prison, they have no connection with the outside world especially they don’t know about their dear ones. This increases the level of trauma. They should be allowed a communication way, with restrictions.
Article 12 of the International Covenant on Economic, Social and Cultural Rights states” the Right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” All those prisoners possess these rights but the matter of fact is they aren’t even any kind of medical care. It’s found that health problems like TB, HIV, STI’s and Tuberculosis are very common in prisoners because usually, they come from the most disadvantaged socio-economic strata of society, where no one cares about their health and enter the prison and transmit it to others. Hence it becomes necessary to take all necessary precautions to prevent the spread of these transmissible diseases. All the prisoners must undergo a medical examination and health screening needs to be done on entry individually.
But are these steps taken? No, the reason is obvious the jail authorities try to put off all the liability on government for lack of funds and the government imposes liability on the jail authorities. Rather liability lies on both governments as well as with the jail authorities.
Various committees have been already set up to seek that there is the protection of prisoners’ rights in India. One of the most important is the Mulla Committee.
Ø A committee was formed in 1980 by the Government of India on jail reforms under the chairmanship of Justice A.N.Mulla, which submitted its report in 1983. Following were its most important suggestions:
Ø In the view of the fact, that ‘Prisons’ is state subject, and the government has little say in it, therefore it should be moved to the Concurrent List.
Ø There should be a total ban on the heinous practice of clubbing together juvenile offenders with hardened criminals.
Ø Setting up of:
§ National Policy on Prisons
§ Department of Prisons and Correctional Services (in every state and UT)
§ Indian Prisons and Correctional Service
Ø Specifically referring to ‘Undertrial prisoners’ the committee said that they should be kept away from convicts in jails. They should not languish in the jail and there should be a procedure for speedy trial and simplified bail process.
Ø Suggested government with an alternative to imprisonment like community service, forfeiture of property, payment of compensation to victims, public censure, etc.
Ø Proposed that living conditions in prison, custody care, rehabilitation centers, should be compatible with human dignity in all aspects such as accommodation, hygiene, sanitation, food, clothing, medical facilities, etc. Furthermore, they should be provided with adequate opportunities for education, development of habit & skills, modification of behavior, and imbibing social and moral values. As well as remunerating them for the work done.
Krishna Iyer Committee was constituted in 1987 for women prisoners which emphasized on correctional aspect through counseling programs by experts and change in the mindset of the prison staff. The report pointed out that due to the living conditions and all the things which they go through, many prisoners come out of jail as hardened criminals rather than a reformed individual.
Prisons constitute critical institution which protects the society from criminals and crimes. There are many obstacles to the implementation of reforms after their identification. Some of these are resource allocation, deterrent functions of punishment, the notion of rehabilitation, and internal control. Even we need to understand that if we think to improve prison conditions does not mean that prison life should be made easy, it means, it should be made humane and sensible.
From the analysis of the conditions of the prisoners, it comes to know that life of prisoners is not merely but an animal existence but the souls behind the bars can’t be denied the right to life guaranteed to every person by Article 21 of the Constitution.  PTI India, India has 19 judges per 10 lakh people: Data, The Hindu Business Line (September 24,2018)
 Rahul Tripathi, Jails at 14 per cent over capacity, two in three prisoners undertrial, The Indian Express (April 10,2018)
  1978 AIR 1514 , 1979 SCR (1) 512
 1978 AIR 1675 , 1979 SCR (1) 392
 1997 S.C.C. (Cri) 386
 1994 AIR 1349, 1994 SCC (4) 260
 Bureau of Police Research and Development (Ministry of Home Affairs), Model Prison Manual For The Superintendence And Management Of Prisons In India, (2003), Page37-38
 Shodhganga Inflibnet, The Problems Of Prisoners: An Analysis, Page76
 1999 CriLJ 1975, (1999) 1 GLR 176