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Home , Prisons in India

AS A PUNISHMENT OUTLOOK FOR THE 21 ST CENTURY IN

Introduction

Public participation in prevention of crime and treatment of offenders must be made a part of our National Policy on . An intensive public education drive should be taken up to make the society aware of the role it can play in the prevention of crime and the treatment of offenders [emphasis added] Chapter XXI Report of the All India Committee on Jail Reforms (Mulla Committee) Ministry of

Home Affairs, , 1983

especially those that relate to the delivery The is the most opaque institution of justice. The existing indifference to the of the State which means no one can just ethical management of institutions of walk into a prison and ask to be taken custody surely needs to be questioned. around as one would in the State’s Courts This paper would wish to suggest why and of Justice, or State schools or hospitals. how this should be done with some new Practitioners all over the world will give a logic and a drive to think outside the box long list of reasons for this policy of both by practitioners and the public. exclusion: some are valid, the rest are either intended to create a mystique about Many of the reasons for the present state of the prison in the mind of the public, or affairs in prisons lie in the intrinsic nature simply excuses to cover up a lot of of this institution which is about one set of ignorance and lack of professionalism in persons locking up another set of persons – running a prison. If qualitative change in all in the name of the law, and as an prison management forms any part of the integral part of a full time job. Quite aside objective of good governance the above from the institution itself not being recommendation of the Mulla Committee interrogated, a wholesome definition of is probably the most essential ingredient this ‘job’ has never been undertaken for that change suggesting as it does that except through referencing and quoting society too has a role in prison and sections and sub-sections from obsolete reform. That the debate about rule books (Jail Manuals, Prisons Acts) prisons generally is at a nascent stage all most of which date back to the nineteenth over the world, and that in India it is century. almost non-existent, is both a cause and a result of the general ignorance and Recommendation: The absence of a indifference that surrounds the theory and search for a proper description of the job practice of imprisonment especially in of a prison functionary in the present unequal and differentiated societies. As a climate of greater emphasis on human large democratic system India can least rights than ever before needs to be afford to be sloppy about its institutions addressed and acted upon .

In implementation terms it means punitive net. Then as now most of those providing such specific and concrete locked up were the socio-economic features that would be able to unite the ‘undesirables’ of society and the rules of abstract list of qualifications and managing them were framed accordingly. requirements with the personal qualities The incentive to change has got diluted in needed for performing requisite tasks most differentiated societies. inside the prison environ today. Recommendation: A detailed knowledge Background: of who is in prison (offences, socio- economic backgrounds, personal details, Having had origins in a criminal justice sentencing experience) needs to be system that was designed in colonial times available in the public domain to ensure for the colonial purposes of instilling fear transparency and public debate . and keeping control, in its present incarnation Indian prisons still have many Unfortunately the ethos of the present features of being essentially products of prison administration still remains rooted those British colonial motivations and in the old motivations even when two rationales that underlay the processes for dramatic changes have occurred that administering India. To meet above all else should affect this situation: (a) the (colonial) agenda of law and order now a sovereign democratic republic with through control the entire structure of a constitution that spells out fundamental criminal justice was meticulously prepared rights and duties for all citizens, and (b) a to be effective for this end alone. voluntarily set up world organisation (UN) The main rule book for criminal offences exists that has provided universal and their corresponding punishments today standards and guidelines and monitoring is the (Act 45 of 1860) mechanisms for ensuring that institutions drafted and passed when the objective of of the state like prisons, adhere to humane punishment was as suggested above and ethical standards. clearly stated by the authors of the Code as ‘instilling fear’ and exercising control over Recommendation: Rules for prison native populations. And year after year management must move away from old thereafter even when India shook off the articles of faith and be commensurate with colonial yoke the State (both central and constitutional provisions and UN provincial) has simply added more and standards at all levels. more offences to the list as and when circumstances demanded. The repertoire of Access to equal and impartial justice in all punishments that were set out in the 150 its manifestations is high on the agenda for year old Penal Code however remains all UN bodies that deal with human rights exactly as it was. and justice systems throughout the world. Standards and guidelines have been in Related to this is the reality that this place for prison management for sometime criminal justice system declared equal and now and as aberrations are highlighted by impartial through codification was neither reform groups more formulae and courses equal nor impartial given its ability to of action are prepared collectively by incorporate in its functionality several international experts to address features of the prevailing unequal social shortcomings in the criminal justice injustice in the region. Punishment was systems of many regions so that they are declared the same for all but the real commensurate with the ultimate goal of question was always which people were justice for all. One example of a neglected more likely to and did get caught in the area that has been overlooked thus far even

2 at the international level has been the treatment of vulnerable groups at the hands Clearly from a time when prison was of the justice machinery and the penal considered necessary and useful (albeit for systems around the world. Recently in vested interests and primarily to 2010 the General Assembly of the UN warehouse undesirables) society and the adopted the Rules for the Treatment of state have reached a point when the Women and Non-custodial institution’s glaring shortcomings need to measures for Women (known now as the be seriously reviewed, reanalysed, Bangkok Rules). Intended as detailed revisited and reassessed on several fronts. guidelines for addressing the treatment and But who would do this review and needs of this one vulnerable group in the reassessment of shortcomings? There are criminal justice it also serves as an no mechanisms that have a role as example of the need for further independent monitoring bodies that will investigations into other groups with inspect places of to focus on special needs (children, the elderly, what exists and what does not, or even to mentally ill). prevent violations of human rights or cruelty and torture. The National Human Realities of incarceration: Rights Commission of India does have a theoretical and practical mandate that gives it the authority to enter and inspect institutions and highlight Without going into all the principles and violations. But the role for action is still theories that underlie the aims and limited. The importance of and openness purposes of punishment and its most of closed institutions can never be prevalent form, imprisonment (deterrence, emphasised enough. How often do we hear retribution, restoration, etc.) it is clear that quotes suggesting that the degree of the prison has failed to deliver what the civilization on a society can be gleaned State’s criminal justice system professes from looking inside its prisons? The as its primary goal, i.e. social equilibrium. attempt here is to suggest how this What it does achieve is a sense of fear, a reassessment might take the shape of feeling of horror and multifarious ways of change-oriented recommendations for hoodwinking the state, all of which make policy makers. The underlying suggestion no contribution to social equilibrium. In is that while the prison is not going away, fact most of the findings of research bodies it needs the kind of reform-oriented change arrive at some simple conclusions: that is far more fundamental than it has been thus far. And accompanying that is (i) that prisons damage people, albeit the need to explore some effective in different ways and degrees and alternatives to prison. (ii) that prisons serve only a very limited purpose in the quest for Recommendation: The negative effects of keeping society safe as less than incarceration on different categories of 5% of those inside are a threat to prisoners needs to be professionally society. ascertained and made available for public and practitioners to embark on the road to So no matter which aspect of the alternatives, institution called prison is discussed, the ‘why’ of prison creeps up in the discourse at all times.

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“…….no one who has been inside a Jails (127), District Jails (340) and Sub prison, if only for a day, can ever forget Jails (806). Other types are dedicated the feeling. Time stops. A note of institutions for specific purposes: Women’s jails (20), Special Jails (31), attenuated panic, of watchful paranoia, Open Jails (46), Schools (21) and anxiety and boredom and fear mixed into a others. kind of enveloping fog, covering the guards as well as the guarded…. The scale The capacity of these jails is as follows: and brutality of our prisons are the moral scandal of American life…” Type Total Capacity

Adam Gopnic - The Caging of America Why do we lock up so many people? Central Jails (123) 46,648 The New Yorker, 30 January 2012 District Jails (333) 1,24,768 Sub Jails (806) 8,474 Independent India as a republic is a federal Women’s Jails (19) 4,817 Open Jails (44) 4,028 state system with a Central government Borstal Schools (21) 2,438 and 28 State Governments and 7 Union Special Jails (30) 10,331 Territories. States are further subdivided Other Jails (3) 32 into districts (671 in all) which in turn are subdivided into subdivisions , or directly Tabulated from Report of the National Crime into the next unit of administration taluks Statistics Bureau, 2012 or tehsils. The management and administration of prisons is a State subject Unfortunately the above source fails to under the (consisting of 61 provide the corresponding occupancy of items) in Part XI of the Constitution. the different jail categories thus Prisons are governed by the Prisons Act of obfuscating some of the realities relating to 1894 and Prison Manuals the most numbers that constitute a significant important of which date back to British feature in assessing conditions of living India. Updated rules and manuals within jails. There is however, supplement the above regulations. Day to comparative data on capacity and day administration is carried out mainly occupancy for individual Indian States that through these rules and the Prisoners’ Act suggests that occupancy far outdoes of 1900 and the Transfer of Prisoners Act capacity resulting in an overcrowding that 1950. severely stretches all the facilities in the 2 prison . Independent researches and There are 1,394 prisons in India most of programmes do indicate that district jails them positioned and structured more or are the most crowded of all the jail less as they were in . Prisons categories. There is also no precise are all called ‘jails’ in India unlike the UK definition of each of these categories of where they are called ‘prisons,’ or the Indian jails: Prisoners sentenced for a term USA where they are ‘prisons’, exceeding 2 years are sent to Central jails penitentiaries’, ‘jails’, and ‘houses of which are larger and have more facilities corrections’ depending on the than other jails but are still not adequately nomenclature used in different States for provided for the numbers they house. the different categories of prisons. The reality is that most Central Jails also Indian Jails fall into 8 categories or types house pre-trial prisoners (for long and and are located squarely within the short terms) whose numbers far exceed administrative units described above. convicted prisoners. District jails are more These are commonly known as Central numerous although smaller than Central

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Jails in most Indian States, for instance prison ever be beautiful seems a valid has 9 Central Jails and 25 question to ask especially since they still District Jails, and has 5 fail to meet the standards of functioning Central Jails and 53 District Jails. The proclaimed as desirable and ideal by factors that determine which prisoners are national and international policy makers sent to these jails vary – from geographical for the functioning of a democratic world location of the offence and offender, to order. There are other more fundamental type of offence (which in turn decides the problems relating to the institution that are duration of stay), and the length of the a blot on the State’s reputation for ethical sentence awarded by magistrates and standards and good governance. judges. Pending investigation and trial prisoners stay locked up for long periods The problem areas : in all these jails. The resulting problematic is overcrowding and overstretched Thirty years ago the All India Committee facilities in most prisons, and the fallout of on Jail Reforms delineated the most that is a host of issues that defy simple fundamental problem areas relating to answers and solutions. Indian prisons. It set out to address the issue of reform under several different So the answer to ‘what are the Indian ‘heads’ or subjects usually covered by prisons’ is a hotchpotch consisting of the most ‘Standards’ documents that predate types of jails, the structures, the lay out, it, but with the requisite contextual the categories and numbers they house and features added. Broadly these ‘heads’ how they are classified, the personnel were: inside, the activities and functions of all inside – the list is long. Most of these • Prison buildings structural categories have been around • Living Conditions • since colonial times when these jails were Diet • Sanitation and hygiene set up. The design and architecture is not • Clothing and bedding equipment just old but as suggested caters to a • Letters and contact with the outside world philosophy of punishment emanating • Medical and physical facilities straight out of the Victorian era. The • Security and Discipline degree of dilapidation of some of the jails • Diversification and Classification has to be seen to be believed. Many of the • Typology of crime facilities are poor and the explanation • Treatment of Prisoners • often given is ‘so are the prisoners poor’. Work Programmes • Agriculture • Under-trials and other un-convicted But this is not the most glaring problem prisoners relating to Indian (or South Asian) prisons, • Women for if it were then all that the policy • Children makers would need to do is to build newly • Young Offenders designed prisons and things would be • Lifers • alright. In fact under the Central prisoners • Sub Jails Government’s ‘modernisation’ policy • Open prisons funds have been made available for some • System of remission, leave and pre release quite large new prisons to be built in • Community Involvement in Corrections several States in India. They are the pride and joy of prison administrators in these From Chapter classifications in the Report of the States who often boast of having built All India Jails Reform Committee, (Mulla ‘state of the art’ prisons with ‘beautiful’ Committee) Ministry of Home Affairs, landscaping and modern facilities. Can a Government of India, 1983.

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Each Chapter in the Report sets out at A suitable yardstick to ‘measure’ length the standards required for decency the performance of a prison: and dignity in managing and maintaining prisons with a special focus on ensuring Any discussion about prisons anywhere in human rights. Details such as the square the world would need to look first at the footage of space and the cubic foot aims and purposes of prisons and why they requirement of air needed by each prisoner are such a universally accepted form of are clearly worked out in the punishing individuals who have offended recommendations. Among other things the criminal laws promulgated by the State. over use of prisons is questioned and there Not unrelated to the above, a focus on the is a clear suggestion for alternatives to ground realities pertaining to prisons 3 prison. would then be needed to suggest their position on the ‘good’, ‘not so good’ and Unfortunately the Report remains an oft- ‘bad’ scale. These can be labelled the quoted volume that adorns prestigious qualitative and quantitative features in the shelves without finding a formal place in discourse about imprisonment. Translated prison policy and management. It emerged into steps for reform it is the experiences out of political circumstances following of those inside (both staff and prisoners) the declaration of ‘’ in India that should form a yardstick for measuring when prominent leaders sent to jail for the quality of a prison, its standards of various reasons saw the inside of a jail for management and more importantly the the first time and believed jail reform pride of place it gets as the most preferred could become a seductive item in their punishment for offending. Statistical political agenda. The Report was information at any level is unable to welcomed by reformers as the most address the one common and regrettable comprehensive document on the subject so attitude to prison populations anywhere in far and even with its limitations it would the world: ‘Lock them up and throw away have served as an effective tool on the road the key’. We need to examine the to efficient prison management. institution with untainted glasses. Unfortunately too, the Indian State has still not worked out its priorities in the area of What need to be looked into are the criminal justice: while control of crime and adverse qualitative consequences of the maintaining law and order has been, overuse and mismanagement of prisons on justifiably, a priority in the general scheme those who are ‘inside’ and those ‘outside’. of things particularly in today’s fear ridden In any debate on the either the conditions environment, the methods used to achieve in or management of prisons in India the these ends are neither effective nor overload of statistical information has commensurate with the declared adherence mostly been about overcrowding, the to the human rights guidelines set out in absence of amenities and facilities, lack of the international standards documents adequate budgets, poor ratios of staff to subscribed to by all States. Against a prisoner or motor vehicles to prison, or backdrop of a fear neurosis there is an judges to work load and so on. There was a indiscriminate use of the prison and an time when collection of statistics for inability to guarantee that there would be prisons and prisoners was poor in India no mismanagement resulting in aberrations and projects designed to gather this in the area of human rights, thus rendering information were at a premium. Today the the status of all ‘Standards’ oriented National Prison Statistics Bureau produces documents meaningless. So how does one fairly exhaustive albeit clinical statistics address the problematic? relating to prisons in India. Statistical information unfortunately is no substitute

6 for the need to address the fundamental ‘information’ and ‘statistics’ need to be issue of the public’s almost total ignorance underscored if some of our objectives about prisons, nor is it of much value in relating to penal reform are to strike a assessing and measuring the health chord with policy makers. One relates to (including mental health) and fitness of a the actual use made of prisoner statistics prison from a human rights perspective. i.e.: that India’s incarceration rate is low Much more than statistical information is and the fuss and urgency concerning required to enable prisons in India today to prison reform is somewhat unwarranted. reach the standards of decency required of Statistical information often has a way of all state institutions in a democracy. being used to make a case from two sometimes contradictory positions. Prison This ‘more’ would relate to the kind of populations are generally rising in almost research and recommendations set out for every country and the pace differs. The US instance for each section of a prison in the now has a total of 2,193,798 prisoners (this Mulla Committee Report, which would includes those in local and city jails and indicate the nature and degree of excludes the 4,814,200 adults on probation compromise of human dignity in the and parole which brings the total under 5 prison. If there is a shortage of good clean correctional supervision to 6,977,000). water, poor quality of food, unhealthy China has 1,548,498 and Russia has surroundings and sanitation facilities, lack 874,161 prisoners. Countries vary in of health care for different categories of population and for that reason ‘rate of prisoners, disregard of special needs for incarceration’ (prisoners per hundred the old, infirm, women, children and thousand of the population) is considered a disadvantaged and disabled, and lack of more reliable method of relative sensitivity in the handling of prisoners, assessment of numbers. The US is still the then the prison is clearly unfit as a place of highest rate at 743, with Russia at 484, living for anyone. The problem is that as China at 118, England and Wales at 148, things stand ‘prisoners’ are not included in Italy at 108 and France at 101. India’s rate the category ‘anyone’. is 30, Pakistan’s 39 and Bangladesh 42. The US has therefore frantically embarked The Mulla Committee Report is not the on the road to reducing its prison only document that has been marginalised population, albeit with an emphasis on in the quest for change and reform in the cost. prison system. The Report of National Expert Committee on Women Prisoners Unfortunately what is missing in the logic (Krishna Iyer Committee, 1987) that made relating to numbers is the real gravity of some vital suggestions relating to women the problem that results from a and custody has suffered the same fate. misinterpretation of the rate of The fate of women ‘inside’ and the imprisonment statistics, and the repercussions of their imprisonment on consequent lack of attention to this them and on their families have received institution. The prison population of any minimal attention in South Asia. Both of country is declared to be the total number the above documents provide a direction of prisoners on a particular day of the year for better information and analysis but which figure tells us little about real neither has found its rightful place in the numbers relating to prison populations on formal rules pertaining to custodial justice. a larger time scale. A better figure would 4 be how many people went through a prison in a whole year: the figures would be ten Two further realities not unconnected to times higher than the figure on a day every the problematic associated with year to assess prison populations. Such a

7 statistical calculation would be a better compromise of democratic values and source of information for just how many principles. But there seems no rush. go through the doors in a year (or ten years or twenty years) and would better suggest To conclude there is less punishment from just what numbers suffer the damage the low incarceration rates in India would caused by imprisonment that are becoming be an error from yet another angle. In increasingly evident. The State has addition to the state’s punitive machinery ‘maimed’ them in so many ways we would South Asian societies (and many others not know where to begin to heal the outside Asia) still retain odious wounds. punishments within the community: village and family elders mete out The second reality relating to the rate of unacceptable punishments to women, incarceration for India (30 per hundred lower castes and the marginalised all the thousand) or even Pakistan (39), being time for offences (against a social code) considered low in a long list from almost which may or may not be in the formal 200 countries is that to give a proper ‘book’. They are like parallel judicial perspective on punishment it would have bodies that carry out their own ‘justice’ to be placed against other vital features often with little interference from the and aspects relating to punishment. There states’ formal system. The ‘justice’ meted are only about 16,000 women prisoners in out would itself qualify as crime by the 6 Indian prisons at any given time. Neither State’s rule book. this figure (considered low) nor the one relating to pre-trial prisoners – 75% (which More often than not the formal state is high) can tell us the real gravity of the system turns a blind eye to this community problem that the justice system fails to justice or condemns it with a rhetorical address reproach that achieves little. We do a lot of punishing outside the criminal justice India’s low rate of imprisonment is system, within community jurisdictions; sometimes a reason for complacency for prison figures are not an indicator of the policy makers when pressured by reformist whole punitive picture. Appalling bodies. Falling as it does within the community punishments are what gave the Ministry of Home Affairs whose prison a more civilised status as a preoccupation in the present day is making punishment in the first place. Upon society safe from the menace of terror and reflection however it becomes evident that the dread of hot headed rebels, the reform the evil features of the one are adequately of places of detention and custody is easily matched by equally unethical features in set aside as low priority in the scheme of the other. Both need to be dealt with. things handled by the Ministry. It would rather and sometimes justifiably, occupy The need: Human solutions to itself with combating fear in society human problems: through a strengthened police force. Should the prison be located in the charge From being considered easy dumping of another Ministry less occupied with grounds for undesirables, or the dustbins policing so that basic standards of decency of society, prisons, if we must have them, and dignity are not compromised? From do need to find their proper place among the viewpoint of governance prisons those of the State’s institutions that deliver cannot be allowed to stay as they are, i.e. human (not just legal ) justice. The failings places of punishment where military and shortcomings of the prison need to be discipline rather than care in custody is the part of a larger debate for reform guiding philosophy. It would be a conducted at forums where practitioners

8 and public participate equally: Some of the attitude changes that both need to be • too many unnecessary and reminded about are listed below: indiscriminate arrests • criminalising some aberrant • prisons are institutions of the State behaviour that could and should be like any other addressed in the societal domain • prisoners still remain persons and • a slow judicial process and a citizens of the country even when general lack of awareness relating incarcerated to the process • prisoners languishing inside • prison a first choice rather than a without trial for years on end is last especially for minor offences unacceptable • few if any alternatives to • qualitative aspects of the prison imprisonment receiving attention officer’s job require rigorous • minimal use of other sentencing definition and debate options than imprisonment • sentencing options by judges need • no research into existing ‘good to be fully explored practices’ (restorative justice, • alternative to prisons need to be mediation and alternative dispute looked into and tried resolution, open prisons) • prisoners need to be systematically classified and their needs Extending the facilities and exploring addressed accordingly newer areas of reform has few takers • the problem of children for several reasons: accompanying parents to prison requires a solution • Prisoners are considered • vulnerable prisoners need to be undeserving for the most part systematically categorised and both because of their their specific needs attended to criminality and their socio- professionally and humanely economic backgrounds • the specificity of the damage that • Escalating crime rate has imprisonment does needs scrutiny blurred the difference between and analysis petty and heinous offences in • deteriorating mental health in the public perception prisons requires professional • Outdated retributive theories investigation guide the penal system • Prisons are opaque institutions If prisons are stretched beyond their and the State gets away with capacity both in the numbers housed and poorly provided mismanaged the facilities therein ultimately the prison institutions, and inadequately administration is responsible for the trained and ill provided staff compromises with standards on all the • There is no independent features listed above. The choice is clear: inspections of prisons reduce the prison population or increase • The damage that prisons do at the facilities. Both are regarded as various levels to all those improbable, although they are not inside (individual, family, impossible. society) has not been researched, analysed and That the numbers are high (particularly of publicised pre-trial prisoners) can be attributed to:

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8 Conclusion humanitarian grounds. At a time when the demand for the death penalty has been Returning to the beginning – the statement accelerating with boundless energy at from the Mulla Committee Report every level, the ’s suggesting that the public has a role in the verdict on death row convicts that had treatment of offenders clearly points to a obviously met the ‘rarest of rare’ need for more education about the prerequisite for the death penalty does institution among the public and far greater expand the scope for judicial intervention transparency in the running of prisons than or review dramatically. For the purposes of exists. The issue of transparency is the present thesis it is significant in the emphasised all over the world. One of the manner it seeks to protect the fundamental leading penal reformers in the UK stated in rights of those convicted even for heinous a seminal work: crimes by ensuring their humane treatment right up to the moment of their execution. No one benefits from the inwardness, the secrecy, It recognises the damage caused to the the lack of accountability, the untrammelled prisoner if there is undue delay in the discretion of prison governors’ - not the prisoners, process (from the pronouncement of the not the system, and certainly not society. The prison system can only benefit from turning away sentence and the petition for clemency to from its inward looking habits and facing the the rejection of the mercy petition). 7 outside world . Reminding prison authorities of the restriction relating to keeping death row Rethinking the Indian prison almost in its convicts in before the totality should not be seen as an rejection of their mercy petitions, it impractical superfluous task by policy declares mental illness and solitary makers. In an age when ‘change’ is the confinement as legitimate grounds for new mantra in all other spheres of activity, commutation. social and economic, state and non-state, it India has been a signatory to the Universal is difficult to understand how this one Declaration of Human Rights, 1948 as well as the institution has remains dated and archaic United nations Covenant on Civil and Politial and unworthy of both public concern and Rights 1966. Both these contain provisions public debate. Oddly there is only one new outlawing crual and degrading treatment and/or punishment. Pursuant to the judgment of this Court development relating to prisons that has in Vishaka vs. State of , (1997) 6 SCC caught the imagination of prison managers 241 international covenents to which India is a in India - this seductive development is the party are a part of domestic law unless they are 9 rise of privatization of (to be distinguished contrary of a specific law in force . from the contracting of servces within) prisons. ‘Not a way to go’ is the The focus on the mental health of considered opinion of those who view prisoners is significant for its wider prisons with a view to governing with implications on all prisoners: accountability an institution that is the responsibility of the state that retains the We have seen that in some cases death row power to punish. prisoners lost their mental balance on accountt of prolonged anxiety and suffering…. There should therefore be regular mental health evaluation of all The rethinking of retributive punitive death row convicts and appropriate medical care 10 processes was recently put to the test in should be given to those in need . India by a judicial pronouncement of some magnitude relating to the commutation of There have been other cases earlier where the death sentence of 15 convicts (after the the Court was not able to address the rejection of their clemency petitions) to question of delay in the use of the power life imprisonment on moral and for clemency (the exercise of which power

10 has been seen as a constitutional duty End Notes rather than a matter of grace or privilege). However this particular judgment took full 1.Report of the Indian Law Commission cognisance of those features of on the Indian Penal Code, 1837 (Macaulay incarceration of death row prisoners that Committee Report had not received consideration earlier. 2.Prison Statistics India, 2012 Chart 2.3. National Crime Statistics Bureau, The Judgment also mandates for legal aid 3.Report of the Committee on Jail for convicts in drafting mercy petitions and Reforms, 1983 (Mulla Committee Report) exploring judicial remedies. Perhaps there Ministry of Home Affairs, Govt of India will be more thought on the damage of the 1983 death penalty itself. Perhaps too this 4.Report of National Expert Committee on concern for one category of prisoner will Women Prisoners (Krishna Iyer extend to many other categories that are Committee) Department of Women and also vulnerable at different but somewhat Child Development, Ministry of Human comparable levels. It would not be Resource Development, 1987 unreasonable to suggest that the long 5.Correctional Population in the United periods of incarceration for other States, 2012. U.S. Bureau of Justice categories of (vulnerable) prisoners (long Statistics term, old, children, mentally ill) are 6.Various newspaper reports (January equally a cause for concern. This too needs 2014) on ‘gang rape ‘order’ by kangaroo to be subjected to scrutiny so that the courts in Bhirbhum, in , and odious features of incarceration (mental khap panchayats in States like illness in this case) are questioned and where village councils order crude addressed in a befitting manner. As stated punishments like naked parading or gang earlier the damage that prisons do has not raping of women for aberrations of social yet been investigated and analysed. It is by norms (such as adultery, out of caste no means tantamount to calling into relationships) question the concept of punishment itself: 7.Stern, V. Bricks of Shame . Britain’s nor is there any suggestion that the Prisons Penguin, Harmondsworth, 1987 suffering of the victims at the hands of the 8.Shatrughan Chauhan and Anr. Vs.Union perpetrators can be underplayed, of India , Writ Petition (Criminal) No. 55 compromised or minimised: of 2013 9.Judgment, P Sathasivam, CJI, op.cit. We do comprehend the critical facet involved in the arguments by both sides and we will strive to strike See also Ediga Anamma vs State of a balance between the rights of the accused as well ., 1974 (4) SCC 443 11 as of the victim while deciding the given case . wherein Krishna Iyer J. spoke of ‘the brooding horror of haunting the prisoner in There is a submission here that two the condemned cell for years’. wrongs do not make a right. An eye for an 10. P. Sathasivam CJI, Cited in Judgment eye will indeed make the whole world op.cit. blind. It is clear that the debate about what 11. Ibid. is just as well as human in any policy relating to punishment has only just begun. It is hoped that it will continue going forward rather than backward.

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References

International Standards 1: Universal Declaration of Human Rights, 1948. 2: Standard Minimum Rules for the Treatment of Prisoners, 1955. 3: International Covenant on Civil and Political rights, 1976. 4: Convention against Torture and other Cruel, Inhuman or degrading treatment or punishment, 1984 and its optional protocol, 2002. 5: UN Standard Minimum Rules for the administration of Juvenile Justice (Beijing Rules), 1985. 6: Convention on the Rights of the Child, 1989. 7: Basic Principles for the Treatment of Prisoners, 1990. 8: UN Rules for the Protection of Juveniles Deprived of their liberty, 1990. 9: UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women offenders (Bangkok Rules), 2010. 10: UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 2012.

Copyright: Penal Reform International (PRI) and (Penal Reform And Justice Association (PRAJA) February 2014

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