We Droit Penale: ILJCC have taken an initiative of starting our blog "Droit Penale NewsLetter" this shall be maintained by few members of our organisation.
This blog shall have the latest updates regarding legal facets of the societies at large. We invite bloggers to connect with us and share views or submit articles which can be posted and shared through this blog.
The Author is Ekta Varshney, 2nd year law undergraduate at Department of Law, Aligarh Muslim University.
It is an unhappy reflection, charged with
pessimism and realism, that governments have come and governments have gone,
but jails largely manage to preserve the macabre heritage and ignore the
the crime, not the Criminal" - Mahatma Gandhi
reforms have undergone several changes in the last few decades which led to the
remodelling of perception of people towards Prisoners. The earlier concept of
crime, criminal and convict have totally changed. In India, the government has
adopted several measures to introduce rehabilitative and reformative changes in
the life of prisoners. A prisoner is a person deprived of liberty against his
will. A person as a prisoner can not be sieged of all his rights. But there are
certain rights and liberties which remain intact to prisoners.
historical account of ancient India, clearly proves that Hindu and Islamic
civilizations are in no way inferior to European-Christian civilization in
protecting the human rights of prisoners. In Ancient time, crimes and wrongs
were chastened with religious ordain or secular punishments but the notion of
Prison was there to maintain law and order. For instance, Brahaspati laid stress on closed prisons whereas, in the Vedic Period, the administration of justice
was not part of state duties. Dharma was not a passed legislature instead it
was based on shrutis and smritis. King was its head, it was his duty to punish
the wrongdoer and if he failed todischarge
his duties then he had to suffer. Early prisons were only the place of
detention of wrongdoers. In ancient times, the main aim of punishment was to
keep evil away from society and to punish him for the wrong he had committed.
The conditions of inmates in Pre-Buddhist time were terrible as
they were kept under chains. After the Maurya dynasty, Jatakas gave a clear description that political prisoners were
released at the time of war and were forcefully employed in the army. Emperor
Ashoka implemented reformative measures in prisons. As per the
life-records of hsuan Tsang, prisoners were given harsh punishment and were
treated as slaves.
In the Medieval period, the condition of prisoners remained
as it was in ancient times. There was no reformation in the condition of prisoners
but during the rule of Tipu Sultan in 1783, he came to an
agreement with Britishers for the release of war prisoners.
Before 1the 970s, there was no such right conferred to
prisoners but it is after the 1970s and 1980s that human right agencies took
the charge of providing justice to the prisoners, by putting aside the factor
of criminality in them and considering them as human. Justice Krishna Iyer in Rajendra Prasad v State of U.P. "every
saint has a past and every sinner a future. A prisoner is a human too and he
too should be given rights eliminating a few as he should not be given full
freedom because of the wrong he committed."
In Charles Sobhraj
v Superintendent Central Jail, Tihar, New DelhiJustice Krishna Iyer held,
“..imprisonment does not spell farewell to fundamental rights although, by a
realistic re-appraisal, Courts will refuse to recognise the full panoply of
Part III enjoyed by a free citizen”.
In Kharak Singh v
State of U.P., Court held
that "life in Article 21 is more than the mere existence".In Maneka Gandhi v Union of India,
The court broadened the scope of Article 21 and constructed a wall on the state
that the power used bythe state
should be just and reasonable. Prisoners are not only given constitutional
rights but are bestowed with statutory rights too. Such statutory rights are
preserved in the PrisonersAct,1894.
favour of Prisoners
Injustice anywhere is a threat to
justice everywhere -Martin Luther King Jr.
With the wake of Human Rights, concern towards prisoners
gets a hype, legislations scope was broadened and many new legislations made in
favour of prisoners. As per the recent NCBR report, India at present have
around 4,50,696 inmates out of which 3,08,718 are under trials or people who
have yet to be found guilty of the crimes they are accused of. This suggests
that the high proportion of undertrials in the overall prison population may be
the result of unnecessary arrests and ineffective legal aid. Out of this
statics, there are around 18873 women
Indian Constitution guarantees Fundamental Rights to its
Citizens as well as to Persons. Prisoners do not become less of a person just
because they’ve committed a crime. Everyone is entitled to basic human rights,
prisoners are deprived of certain liberties such as ‘freedom of movement, freedom of profession and freedom to settle’.However,
they are guaranteed rights like “Right to
equality”,“Freedom of speech and expression”, “Protection in respect of conviction for the offence”, “Right to life and personal liberty” and “Protection against arrest and detention in
"All the rights secured to the citizens under the
Constitution are worth nothing, and a mere bubble, except guaranteed to them by
an independent and virtuous Judiciary"- Andrew Jackson.
Role of Judiciary as the guardian-protector of the
constitution and the fundamental rights of the people makes it more respectable
than the other two organs. Judiciary which acts as the protector against the
possible excesses of Legislative and Executive have been always a step ahead in
providing basic rights to inmates.
InIssma v State of
'the person arrested may himself make an application for grant of bail. He may
also be permitted by the court to argue his bail application in person'.
In Tara Singh v
State of Punjab, the court
held ‘It is the right of the accused to be defended by a lawyer of his choice’.
In Hussain Ara
Khatoon v Home Secretary, State of BiharThe
court held ‘that the State is under a constitutional mandate to provide a
lawyer to such accused if the need for justice is so required’.
ENACTMENT & RULES
The Prisons Act, 1894 - This is the first statue concerning the administration of
Prisons in India. Section 4 of the Prisons Act provides for accommodation and
sanitary conditions for Prisoners. Section 7 laid down provision for shelter and
safe custody of the excess number of prisoners who cannot be safely kept in any
prison. Section 24(2) provides for examination of prisoners by qualified
medical officers. Section 31 and Section 33 furnishes provision for separation
of prisoners containing female and male prisoners, civil and criminal prisoners
and convicted and undertrial prisoners and every civil and unconvicted
prisoner, unable to provide himself with sufficient clothing and bedding, shall
be supplied with such clothing and bedding respectively.
The Prisons Act, 1900 - Section 30 says,it
is the duty of the Government to release the prisoner of unsound mind detained
under any offence and to be provided proper treatment.
The Transfer of Prisons Act,1950 - This act was enacted to transfer prisoners from one state to
another for rehabilitation or vocational training and to free overcrowded
shells within the state.
The Prisons (Attendance in Courts)
Act,1955 - This act was enacted to provide for
attendance in court of persons confined in prison for obtaining their evidence
or answering criminal charges.
From the time tome, the Government, Judiciary and various
commissions provided advisories, suggestions, for the proper and efficient
administration of Prisons.
The Government set-up a Committee on Jail Reforms under the
Chairmanship of Justice A. N. Mulla, popularly known as Mulla Committee. The
committee submitted a report in 1983.
Some of the prominent mentions of the committee are:
●Ban of clubbing juvenile offenders with hardened criminals
●Improving prison condition by making available proper food,
●The prison staff to be properly trained and organized into
●Setting up an All India Service called the Indian Prisons
& Correctional Service.
●After-care, rehabilitation and probation to be an integral
part of prison service.
●The press and public to be allowed inside prisons, so the
public can have information about the conditions of prisons.
●Undertrials constitute a sizable portion of the prison
population. Their number to be reduced by speedy trial and liberalization of
Krishna Iyer Committee: constituted in 1987 adequately for
women prisoners, it advocated the induction of more women personnel in the
police force in view of their special role in tackling women and child
Other Recommendations :
●Supreme Court inDilip K. Basu vs State of West Bengal
that "The State Governments shall take steps to install CCTV cameras in
all prisons in their respective States"
●The Model Prison Manual 2016 provided a chapter on 'Legal
Aid" to facilities to undertrials viz. legal defence, interview with
lawyers, signing of Vakalatnama, application to Courts for legal aid at
Government cost etc.
●In 2017 Law commission endorsed that under-trials who have
completed one-third of their maximum sentence for offences attracting seven
years of imprisonment be released on bail.
●In 2020, directions were issued for the behavioural changes
in the attitude of Prison Officers such as sympathetic and patient with inmates
will act as an emotional support base to inmates.
●Introducing a system of rewarding, to the deserving inmates
will help them in the path of correction. The exemplary conduct of Prison
Personnel will go a long way to encourage prisoners to return to society at
large and make it a better place for posterity.
●The Ministry of Home Affairs has taken steps to address the
issue of overcrowding. Sec 436A has been inserted in (Cr. PC) which provides,
"Undertrials are to be released on a personal bond if they have undergone
half of the maximum term of imprisonment they would have faced if
●Data showed only 929 undertrials were being released out of
1,557 who were found eligible. Research by Amnesty India has found that police
personnel are often unaware of this section and unwilling to apply it, to
terminate this trouble an advisory was issued for the instalment of E-Prisons software
to enlist the data about inmates to assist in identification.
●The Government had also introduced the concept of plea
bargaining through Section 265-A of Cr.P.C. which enables pre-trial negotiation
between the defendant and the prosecution during which the defendant agrees to
plead guilty in exchange for certain concessions by the prosecutor. States/UTs
are requested to make use of this provision.
●The Supreme Court in W.P. No.406/2013 also reiterated to
authorities to address the issue of overcrowding and under-trials in prisons
with the aid of the UnderTrial Review Committee.
Though a number of committees, court orders and laws have
been made to remodel the prison system but not employing these recommendations
have put the prison justice to shame and shaken people's faith in the firm
fighting functionality of the judicial process.
A new form of Prison System has been developed in India
known as OPEN Prisons or semi-open prisons. The concept of open prisons was
first developed in the UK in the 1930s. TheFirst All India Jail Committee
was appointed in 1836, to review the prison administration., but no result was
achieved. The Second Jail Committee recommendation in 1877 was accepted and has
since been in practice. Due to these open prisons, there has been a tremendous
decline in the overburden of the prisons as petty-crime offenders are now
separated from heinous-crime offenders, it has also reduced the cost of
security as open prisons don't need many forces, the prisoners are allowed to
find employment in and out of the prison.
There are currently 69 Open Jails. In Open Jails, inmates
stay in a dormitory and are free to walk around. There are no handcuffs, no
cells, lock-ups or armed security – the inmates lead a self-disciplined life.
Healthy and disciplined inmates from the state’s central jails who have been
allotted regular parole and have completed three years of imprisonment in a
closed jail are eligible to be admitted in open jails. Prisoners are selected
by a selection committee. Habitual offenders, convicts serving death sentences,
terrorists, those convicted for heinous crimes against women and children, and
those charged under the POCSO Act are not considered for the open prison.
The immediate consequence that follows a criminal act is
punishment. Punishment should not be of a nature that even after the completion
of the term, the prisoner suffers from its impacts. Its effect should come to
an end after the completion of the term. The prisoner should not be targeted
mentally and should be given lessons so that he can wash off the wrong in him.
He should be given a chance of rehabilitation. The authorities have beaten the
drum for many changes but desired results have not been achieved. There is a
need for bringing a firm rule for implementing these suggestions effectively
and efficiently. As there are sufficient proposals for setting an example to
the world of the finest system of Prisons in India.
Rajendra Prasad v State of U.P, 3 SC, 916(1979)
Sobhraj v Superintendent Central Jail, Tihar, New Delhi, 63, DLT, 91(1996)