Behind the Bars: Are Prisons Working?
The United Nations Office on Drugs and Crime (UNODC) recognizes five main theoretical justifications for criminal punishment: retribution, incapacitation, deterrence, rehabilitation, and reparation. Within the various forms of punishment, incarceration has been recognized as important owing to the twin purposes that it serves: the protection of society against delinquents, and the reformation and rehabilitation of offenders. While prisons around the world are steadily moving towards the status of correctional facilities focused on reforming and helping prisoners start a new life away from crime, the Indian scenario reads somewhat differently. The Indian prison system fails to provide adequate civil support to prisoners, necessary for their reintegration. This problem is aggravated by the lack of uniformity in prison reform policies. These issues exist as a web of interconnected issues, and this article attempts to explore a limited few of them. In the course of this article, the author shall first discuss the existing prison regulatory framework in India and then highlight the chief areas of concern under two heads: institutional drawbacks, and lacunae in correctional administration.
Prevalent Regulatory Framework
Prisons constitute an entry under the State List of the Constitution, leading to the absence of a uniform, pan-India framework for prison reform and prisoner reintegration. While there are several legislations on prison management and related issues in India, there persists a lack of adequate work in the specific directions of rehabilitation and reformation. It is indeed lamentable that the issue has also not been considered in any detail by the Law Commission of India, except for addressing overcrowding in prisons. The primary law dealing with the subject under consideration is the Prisons Act, 1894, but the statute fails to take a progressive and prisoner-friendly view of how prisons should be run, as also observed by the Supreme Court. A mostly procedural law, it only touches upon prisoner welfare in a restrictive manner. It discusses how discipline is to be maintained in prisons and how certain categories of prisoners are to be kept separated from others. For prisoners in solitary confinement or under the sentence of death as well, the provisions seem to be constructed for administrative ease and not for developing an environment conducive to reformation. Employment is similarly provided for, but only on grant of permission by the Superintendent in case of civil prisoners. Section 36 of the Act specifically provides for punishment of neglect of work by a prisoner sentenced to rigorous imprisonment in the form of alteration in the scale of diet, further highlighting the negative approach adopted by the statute.
In an attempt to reconstruct the prison system and bring some degree of uniformity, the Central government had set up the Model Prison Manual Committee in 2014 under the Bureau of Police Research and Development (BPRD) which presented the Model Prison Manual, 2016. In a welcome move, the Manual discusses in relative detail the importance of education of prisoners, the objective of “uplifting them morally, mentally and socially,” skill-development as well as after-care for rehabilitation, and provides for the appointment of a Rehabilitation Officer in all prisons to assist prisoners in securing housing, jobs and other supplies and readjusting to cooperative living.
While the Manual introduces an appreciable improvement in the conception of prisons in India, it remains a prescriptive and non- binding document, since the legislative authority on prisons lies with States. Some states such as Karnataka and Telangana have adopted this outlook and brought corresponding laws, virtually all other states have been dormant.
In addition to national instruments, international conventions have also recognized the need for an evolving reformation and rehabilitation system across countries, but they, too, remain to be incorporated into the Indian legal system. Perhaps the most noteworthy of these are the Mandela Rules adopted by the UN Office on Drugs and Crime in 2015. This document, first adopted in 1955, has been subject to five-yearly revision, making it consistent with changing times, but remains soft law, with no binding application. While the Mandela Rules are perhaps the most prominent set of guidelines available, there are also other documents such as the International Covenant on Civil and Political Rights, 1966 and the Universal Declaration of Human Rights, 1948, which briefly touch upon the issues of prisoner welfare and thus, provide directional guidance to member nations.
Unfortunately, the lack of legislative cognizance has not been made good for by the judiciary, either. While there is much scope for recognition of the issue of reformation and rehabilitation before the Courts, considering the direct impact on fundamental rights of prisoners, the Courts have only gone to the extent of clarifying that prisoners do possess all fundamental rights but has failed to address the various impediments to the exercise of those rights and the duty of the state to secure and further them for prisoners.
The correctional administration system in India, as it stands, is far from adequate and is plagued by a variety of systemic barriers. Primarily, there is a severe paucity of empirical research and data on the prison system in India, both by state and non-state actors. The latest set of the Prison Statistics India report was published by the National Crime Records Bureau, the nodal agency of the government for this field, in 2019. Even in this document, data from the state of West Bengal is missing due to regional disturbances impeding collection of data. These statistics present vague numbers pertaining to rehabilitation with no details regarding the type of assistance provided. The relevant chapter only provides “a snapshot of good initiatives” from select states with nonuniform data. It must be rightfully conceded that data collection, as has been identified by many, is an extremely difficult activity and this has been further aggravated by the COVID-19 pandemic. However, these circumstances make it especially important for the state machinery to take stock of the situation in prisons and ensure living standards are maintained. This is in accordance with the pronouncements of the Supreme Court in a series of judgements, including Sunil Batra (II) v. Delhi Administration, Rama Murthy v. State of Karnataka as well as State Of A.P. V. Challa Ramkrishana Reddy that all prisoners are entitled to fundamental rights at par with other citizens and the state must work to secure them.
A second factor affecting the current system is the fact that prisons and other institutions fall under the exclusive legislative domain of the States, and therefore, the Union does not have the authority to introduce a pan-India structure for correctional administration. Even so, it is not impossible to bring about progressive change in the system. However, it may be argued that more than institutional provisions, it is the lackadaisical attitude of most states towards this issue that makes advancement difficult. While certain prisons such as the Taloja Jail in Navi Mumbai, Maharashtra and the Central Jail in Kannur, Kerala have introduced schemes and programs to rehabilitate prisoners, serving as testament to the capability of states to take proactive measures in this direction, these appreciable instances remain scarce and rare.
This leads us to and is reflective of the third and final problem to be discussed under this head: lack of political will. The inaction of the executive at all levels of government prevents any substantial improvement in the way prisons function in India.
Lacunae in Correctional Administration
Correctional institutions have two primary roles viz. reformation and rehabilitation. The former refers to realignment of the prisoner in favour of civil life and continues for the duration of imprisonment. Rehabilitation addresses the several needs in relation to adjusting to civil life while reinstating prisoners in society after their release. International conventions have recognised that the purpose of imprisonment is “to protect society against crime and to reduce recidivism.” However, this requires certain enabling conditions that are, for the most part, absent in India.
Lack of Sensitisation
Reformation requires that prisoners be sensitised to social issues by way of educational sessions, especially in connection with the crimes for which they have been convicted. Psychological aid also becomes necessary, since data suggests that a large number of prisoners suffer from mental illnesses, often contributing to criminal tendency. As per the 2019 statistics, only about a third of total inmates were given medical counselling. In addition to prisoners, prison staff and officials also need to be sensitised to ensure proper behaviour towards prisoners and a conducive environment for reformation of prisoners. Statutes in place for attendance to the mental health of prisoners, such as the Mental Healthcare Act, 2017, require training of medical officers in this direction as well as the preparation of quarterly reports to Review Boards. However, the persistent issue of proper implementation of these laws remains. Prison administrations need to take proactive measures and initiate programs in this direction, as has also been directed by the Supreme Court in Charles Sobraj v. Supdt. Central Jail, Tihar, New Delhi.
Irregular and Inadequate Occupational Engagement
Another important element of reformation is indulging in value-creating activities to imbibe vocational and life skills. Vocational skill training was provided for under the 2003 Manual, but a glance at recent statistics from the PSI Report denote the severe discrepancy in percentage of convicts eing trained across states. Andhra Pradesh, with a mere 2,788 convicts in jail, accounted for a similar percentage of total vocational training imparted (6.10%) as Madhya Pradesh (6.21%), with 20,253 convicts in jail. As per the latest available statistics from 2017, the average value of goods produced by a prisoner amounted to approximately ₹17,675. While this figure is not entirely disappointing, the distribution of the value-creation certainly is. Approximately 20.8% of this total value was generated in just four states: Telangana, Tamil Nadu, Maharashtra and Kerala. This is representative of the drastic variation observed across the country in terms of social development.
Insufficient Rehabilitative Support
Rehabilitation requires institutional support to be provided to convicts after they are released from prison so that they are able to smoothly shift to civil life without resorting to crime. The rationale behind rehabilitation is that a convict does not always retain a tendency to commit crimes and does indeed have the potential to become a useful member of society. This has added importance owing to the usual exclusionary attitude of members of society towards ex-convicts. However, Indian prisons have a long way to go in providing these prospects, beginning perhaps with the proper implementation of the prescriptions on after-care and rehabilitation in the 2016 Manual.
In line with the observation of the Supreme Court in Giasuddin , there is a primary need for modification of the public perception of prisons. They must be viewed not as institutions to punish but to rehabilitate. This “lock-up” perception poses a significant barrier to proactive action for improvement of the condition of the correctional administration.
Education and formal training play an important role in the reformation of a prisoner, and must be made compulsory, perhaps on an elective basis. Simultaneously, it must also be ensured that these trainings are effective, for which collaborations with other institutions, including NGOs, could prove helpful.
Measures outlined in the 2016 Manual in relation to rehabilitations must be incorporated into state legislations and implemented effectively. This may be done by creating a network of local industries, NGOs and other varied places of occupation, to assist prisoners in seeking suitable job opportunities. Further, the state must also extend counselling and therapy sessions beyond the sentence duration, especially seeing as most convicts do exhibit mental health problems which can be aggravated, even leading to unruly behaviour. Thus, much remains to be done to truly secure the rights of prisoners and discharge the duty that the state owes to them as citizens of the country.
*The article has been written by Vedika Chawla, 2nd year student at National Law University, Delhi*