It's high time govt paid attention to condition of prisons and rights of prisoners in India

Santosh Upadhyay of Bandi Adhikar Andolan (Prisoners’ Rights Movement) was a student of History at the Banaras Hindu University. During his studies, he somehow started reading about the conditions of the prisoners. Whenever he saw any prisoners being taken away, they looked more like cattle, not human. And therefore, soon after completing his studies in History, he decided to devote his life to the rights of individuals behind bars.

He filed a petition in the Nainital High Court (Santosh Upadhayay and others vs State of Uttarakhand- 136/2020) arguing that about 1100 prisoners in different prisons of Uttarakhand are serving sentences without any proper policy about their release. He asked via his lawyers (Adv. Charlie Prakash, Allahabad High Court) why there was no policy in the state for timely release of prisoners. The court ordered the state to come up with a policy.

Following the order, the state government formed a new policy on February 12, 2021, following which the prisoners are to be released on January 26, 2022. Now, there is an ongoing discussion in the same court on over-crowing in jails, open jails, understaffed jails, and the situation of female prisoners among other issues.

What is important here is to check the situation of Indian prisons, and the prisoners waiting to be released. The various issues and circumsatnces rising due to the Corona pandemic has not only emphasised on the need to get rid of the congestion in prisons but have also provided many lessons about strengthening the right to bail/Justice and the right to life of prisoners.

In several cases, the Supreme Court of India has reiterated the significance of bail because the detention of an individual impacts their right to personal liberty. Therefore, while interpreting the provisions of the Code of Criminal Procedure 1973 pertaining to arrest, courts should respect the constitutionally protected liberty unless detention becomes a necessity.

According to India’s Prison Statistics, 1350 prisons accommodate 478,600 prisoners, and the all-India average occupancy rate is 118.5 per cent. A closer look shows that prisons in some States are more overcrowded than others; for example, Delhi has reported the highest occupancy rate of 174.9 per cent, followed by Uttar Pradesh with 167.9 percent and Uttarakhand with 159.0 percent. There is a gap between the number of prisoners eligible to be released and actually released, under Section 436A of the Code of Criminal Procedure.

Section 436A provides undertrials to be released on a personal bond if they have undergone half of the maximum term of imprisonment they would have faced if convicted. In 2016, out of 1,557 undertrials found eligible for release under Section 436A, only 929 were released. Amnesty India has found that several prison officials are frequently unaware of this section and many are unwilling to apply it.

The number of “unnatural” deaths in prisons has doubled between 2015 and 2016, from 115 to 231. The suicide rate among prisoners had also increased by 28% (from 77 suicides in 2015 to 102 in 2016). The National Human Rights Commission in 2014 also gave a grim reality that on average, a person is one-and-a-half times more likely to commit suicide in prison than outside.

In India, the prisons are extremely overcrowded. It is impossible to provide for hygiene requirements and maintain social distancing norms. The 25th report published by NCRB paints a depressing picture of the prisons in India. The total capacity of the Indian Jails is four lakhs (4,00,000) however, the total number of prisoners is 4.8 lakhs. The total number of jails was increased from 1339 in 2018 to 1350 in 2019, but it did not help with the situation of over-crowdedness. The occupancy rate of the jails was also increased from 117.6 in 2018 to 118.5 in 2019. Delhi had the highest occupancy rate followed by Uttar Pradesh and Uttarakhand.

Among the total number of prisoners, most of the individuals who are currently in jail are under trials. Even before their offence is proved, they are being put in prison. The report also highlighted that 69.05% were under trail prisoners while 30.11% were convicts. The report mentions a minimal drop in the number of convicts who are dying. The total number of deaths in 2019 was 1775, as compared to 1845 in 2018.

We need to look at the recommendations of several committees set up to suggest reforms in prisons. These committees include Justice Mulla Committee 1983, Justice VR Krishna Iyer committee on women prisoners 1987. The reforms suggested by them included establishing separate institutions for women offenders etc.

Retired Indian Police Service Officer Shailendra Pratap Singh says that “Indian prisons have severely understaffed. As compared to prisons in developed countries such as the USA, the prisons here have a toxic environment. The appointed doctors serve both at the police lines and the prisons, and many times the doctors visit prisons only for some hours. Furthermore, there are no activities or open time for prisoners to feel human. In the USA where I had the chance to visit a prison, I saw prisoners playing basketball in the courtyard.”

His arguments are well supported by the fact that out of the total capacity of the prison officials, 33% of the seats are vacant. The police officer prisoner ratio is also quite bad. The UN has prescribed that for every one lakh prisoners, there should be 222 police personnel. However, in India, it is only 181/lakh. The NCRB report tells that only 68.5% of posts were filled at the end of 2017.

This affects the total time spent by the prisoners inside the cell. They have to spend almost 23 hours in a day in prisons, which has a direct impact of their mental health. The lack of sufficient staff also leads to prisoners getting addicted as they can have easy access to psychotropic substances. Furthermore, it adds to the increase in violent activities. Our legislations are from the British era, with the changing circumstances they do not fit properly. Funny thing is that even those regulations are not being followed to their capacities due to various reasons. As per the Prison Act, 1894 and Prisoner Act, 1900, there should be a welfare officer and a law officer in each jail but recruitment of these officers is still pending. Political and budgetary priorities are cited as some of the reasons behind the problem.

In India, being boarded in prison is considered taboo. Society becomes apprehensive about those individuals who go to jail. There are almost no social or political movements trying to accommodate these individuals back in society. Allahabad High Court lawyer Ajay Singh Nikumbh says that it is due to our social structure. “our families are supposed to be the last resort. The problem is for those prisoners who don’t have families or whose families have abandoned them.” The data from NCRB shows that the prisoners who are cut off from family and friends have 50% more chances of committing suicide.

Another major challenge, argue Santosh Upadhayay, Advocate Charlie Prakash, and Dr Lenin Raghuvanshi, is the lack of legal aid. Those who cannot afford to retain counsel get legal aid only at the time of trial. When the detainee is brought to the remand court, they do not get legal aid. The majority of prisoners in lock up, and in prisons but waiting trial are the worst affected due to lack of legal aid. K K Rai, Senior Advocate of Allahabad High Court says that speedy trials, increasing legal literacy of prisoners, sensitization of prison administration are among some suggestions to deal with this problem.

In the case of Charles Sobraj v. The Superintendent, Central Jail, Tihar, New Delhi, Justice Krishna Iyer held that the Fundamental Rights of the prisoners do not cease to exist in jails. And that, if the atmosphere is of constant fear and violence, denial of opportunity to improve oneself, then under such situations the jurisdiction of the courts will become operational on the basis of Article 19. Dr Lenin Raghuvanshi asserts that our society’s opinion towards prisoners needs to change. He says that “Article 14 of the constitution guarantees right to equality to all its citizens. It provides equality before law and equal protection of laws to all citizens. And, we cannot say that prisoners are not citizens.”

Santosh Updhayay cites Article 21 of the Indian Constitution, which deals with the right to life with human dignity. The Supreme Court in the case of Parmanad Katara v. Union of India said that when it comes to human life then the difference between a criminal and innocent person does not make any sense. Furthermore, Article 22 prohibits solitary confinement of individuals. All rights which are granted by the constitution to the inmates are for their protection and to allow them to lead a happy and peaceful life. It is the duty of the government authorities that these rights should be granted to them and there should be no violation of these rights. Advocate Govind Singh Chauhan gets upset while talking about it. He cites the case of Anand Mohan in Bihar arguing that political vendetta is a big reason for people spending longer time inside prisons. He adds that the law must be followed equally for all, without any biases.

In the case of Sunil Batra v. Delhi Administration, Supreme Court stressed that solitary confinement should be granted in very exceptional cases where it is extremely essential to keep the prisoner in solitary confinement. The court in the case of AR Antulay v. RS Naik recognised the right to speedy trial of the prisoners. The court held that the right to a speedy trial is available to all and it ensues from Article 21. Section 4 of the Prisons Act, 1894 provides for sanitary conditions and accommodation to the prisoners. Further, Section 7 provides for the safe custody of the prisoners in case of overcrowding/excess number of prisoners as compared to available spots. The Prisons Act, 1984 also provides various rights to prisoners.

Santosh Upadhyay says that we need to look at what is happening in some developed countries, learn from them, and improve the condition of prisoners in India.

With several guidelines, and numerous court decisions, there seems to be a light at the end of the tunnel, but given the gap between policies and their implementations in our country, we have a long way to go!

(With inputs from Akash Singh)