Articles, Human Rights

The Forgotten Human Rights of Prisoners in India

-By Shivam Tripathi*

The Indian criminal justice system has undergone drastic changes in the last few decades, and the old idea of deterrence has evolved towards a more reformative approach to incarceration that addresses human rights and reinsertion into society. Indian prisons are governed both by central and state legislation, namely The Prisons Act of 1894, Transfer of Prisoners Act of 1950, Delhi Prisons Act of the year 2000 and Prisoners [Attendance in Courts] Act of 1955, as well as respective state rules.  In addition to this legislation, the Indian judiciary has played a crucial role in how prisoners are being treated at a state level. In fact, the Supreme Court has time and again reiterated that the rights of prisoners need to be protected. For instance, in the famous case of D.B.M. Patnaik v. State of Andhra Pradesh, the court stated that merely because a person is imprisoned, it must not be assumed that they should be deprived of all fundamental rights enshrined in the Constitution of India. Moreover, India is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which casts a supra-national duty upon the central government to guarantee human rights to prisoners (Article 6, 8 and 10 ICCPR). In Sunil Batra v. Delhi Administration, the court recognised this duty by referring to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations and held that steps should be taken to implement more holistic and human rights adhering prison policies.   

Indeed, prisoners in India are granted several rights, including constitutional rights and statutory rights mentioned in The Prisons Act of 1894. However, prison conditions across the country remain very poor. The major issues faced by prisoners are long periods of detention for those awaiting trial (otherwise known as ‘under trial prisoners’), few instances of bail, inadequate time to consult with attorneys, limited right to meet friends and family (Dharambir v. State of U.P), overcrowding, lack of proper administration, poor sanitary conditions, and poor food and clothing facilities. In the 2013 landmark judgement Re-inhuman conditions in 1382 prisons v. State of Assam, the Supreme Court addressed four of these issues, namely overcrowding, custodial deaths, lack of staff and lack of training of prison personnel. The court issued a number of guidelines to ensure proper enforcement of the rights of prisoners in India, emphasizing that an Under Trial Review Committee should be formed in every district to take steps to seek the release of eligible under trial prisoners under section 436A Code of Criminal Procedure. With the order dated 02nd August, 2018 the court said that the committee was set up in every district or were at least expected to be set up soon as stated.

Despite this ruling, the condition of prisoners has not changed considerably, even after the implementation of the recommendations. In its latest report, the National Crime Record Bureau stated that 69% of the total prison inmates are prisoners still undergoing trial, spread across 1339 prisons. Over 36.2% of the prisoners awaiting trial remain in jail for 3 months before being released on bail and over 21.4% are held in custody for over 6 months. Additionally, the occupancy rate has increased from 115.1% in 2017, to 117.6% in 2018. The prisons are overpopulated by almost 250% and cells of 8×10 feet house almost 21 people, an obvious breach of the UN specification of 6×12 feet per person. A total of 1,845 deaths were reported in 2018 as compared to 1,671 in 2017 (Prison Statistics in India, 2018). These conditions are also in contravention of the United Nations Standard Minimum Rules for the Treatment of Prisoners of 2015 popularly known as the Mandela Rules (rule 10), which makes sovereign states responsible for ensuring that life in prison is not drastically different from life in liberty. 

Major concerns such as overcrowding and custodial death remain a pressing issue in India. The reason behind the persistence of such problems is that, even when bail is granted, prisoners are not released due to their inability to pay the surety amount. Moreover, there is an insufficient provision of medical aid and a lack of proper legal aid services for indigent persons (Prison Statistics in India, 2018). In addition to these major roadblocks to the proper implementation of the 2013 judgement, another key issue is that since the Constitution of India demarcates allocation of powers between the centre and state governments in Schedule VII into three categories viz. the union list, the state list and the concurrent list, with the central government having exclusive powers to legislate on the subject matter contained in Union List, likewise the state government having an exclusive power to legislate on the subject matter contained in the state lists, while both centre as well as states having the power to legislate on the subject matter contained in the concurrent list. Prison policy in India falls under the legislative competency of states, i.e. state list, granting states an exclusive power over prison policies (Entry 4 List II Schedule VII Constitution of India). Therefore, factors such as a difference in state policy structures, as every state has its own rules governing prisons and their administration, and differing political environments can lead to situations where states neglect prisons because they are starved of funds. For example, one primary reason why states lack funds is firstly the lengthy procedure of release of funds by the centre for schemes introduced by states (Prisons in India: An overview of reforms and current situation),  and additionally, many schemes are introduced by the centre (which have an indirect effect on a state’s specific budget dedicated to prison policy) without allocating any extra funds to the state for that particular scheme thereby increasing pressure on the existing state funds. For instance, the Centre recommended the states to link prison inmates with Aadhaar, a national scheme for verification of residents or passport holders of India, without allocating any extra funds for the said scheme to the state governments. For change to happen, prisons and all allied institutions should, therefore, be inserted into the concurrent constitutional list, which grants decision-making powers both to state-level government and central governments (Article 246 clause 2 Constitution of India), but allows central law to prevail if legislation is conflicting (Article 254 Constitution of India). Alternatively, prison legislation should be added to the union list granting the union government exclusive power to legislate and thus empowering the centre to enforce prison legislation on a state level (Article 246 clause 1 Constitution of India).

The concept of open prisons should also be promoted. There are currently 77 open prisons in India with a capacity of 5,667 prisons combined, which amounts to almost 1.21% of the total prison population (Prison Statistics in India, 2018). These prisons, unlike others, provide prisoners with more freedom and dignity by allowing them to roam in and around the prison vicinity, taking up employment outside of prison and also have lesser security personnel. This model would resolve problems of overcrowding, protracted incarceration and reduce the staff needed to operate facilities, thus reducing overall state costs. India is therefore still at the beginning of a long journey towards creating more human rights abiding prison conditions, and the judgement in ‘Re-inhuman conditions in 1382 prisons v State of Assam’ has been a small step towards better prison system management and administration.

The author* is a final year student at Maharashtra National Law University, Nagpur.

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