Prisoners Right: Need for Reforms

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 Mahatma's message.
"Hate the crime, not the Criminal" - Mahatma Gandhi
Penal 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.


The 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 to discharge 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.[1] "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 Delhi[2] Justice 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.[3], Court held that "life in Article 21 is more than the mere existence".In Maneka Gandhi v Union of India,[4] The court broadened the scope of Article 21 and constructed a wall on the state that the power used by the 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 Prisoners Act,1894.

Legislature in 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 prisoners.

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 certain cases”.

"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.
In Issma v State of U.P.[5] Court held '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[6], 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 Bihar[7]The 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’.


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 in prisons.
       Improving prison condition by making available proper food, clothing, sanitation;
       The prison staff to be properly trained and organized into different cadres.
       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 bail provisions. 

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 offenders.

Other Recommendations :
       Supreme Court in  Dilip K. Basu vs State of West Bengal & Ors[8]ordered 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 convicted."
       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. The  First 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.

[1]Rajendra Prasad v State of U.P, 3 SC, 916(1979)
[2] Charles Sobhraj v Superintendent Central Jail, Tihar, New Delhi, 63, DLT, 91(1996)
[3] Kharak Singh v State of U.P, 1SCR,1295( 1963)
[4] Maneka Gandhi v Union of India, 2,SCR, 597(1978)
[5]Issam v State of U.P., CriLj, 2432(1993)
[6] Tara Singh v State of Punjab, SCR, 441(1951)
[7] Hussain Ara Khatoon v Home Secretary, State of Bihar, 3,SCR, 532(1979)
[8] Dilip K. Basu vs State of West Bengal & Ors, CRL.M.P. NO.16086 (1997)