human rights project

5/26/2018 Human Rights Project

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PRISONS AND HUMAN RIGHTS

INTRODUCTION

This report is based on the proceedings on the workshops on Prisons and Human Rights

organised at Bhopal by the Commonwealth Human Rights Initiative CHRI! in collaboration

with the "adhya Pradesh Human Rights Commission "PHRC!# The workshop$ conducted

on the %&thand %'tho( )pril *++,$ was attended by representatives (rom the -aw Commission

o( India$ the .ational Human Rights Commission o( India .HRC!$ "PHRC$ "adhya

Pradesh /tate Commission (or 0omen$ CHRI$ retired and serving o((icers (rom the prisons

and police departments$ e12 prisoners and their (amily members$ members (rom .34s$

academicins$ bureaucrats$ 5ournalists and lawyers#

The main ob5ective o( the workshop was to sensitise the administration to human rights

issues6 suggest mechanisms to monitor prison conditions e((ectively and ensure

accountability in respect o( violation o( human rights6 discuss the problems o( prison

administration and ways to motivate and develop prison sta((#

Inaugurated by "r# 7ustice "#.# 8enkatachaliah$ Chairperson o( the .ational Human Rights

Commission$ the workshop was divided into (our sessions with two sessions on each day#

The (irst days sessions$ presided over by "r# R#9# 9apoor$ (ormer :irector$ Intelligence

Bureau and "r# 7ustice )wasthy$ "ember "P Human Rights Commission$ covered issues

pertaining to the modernisation o( prison administration and motivation and development o(

prison sta((# The second days sessions$ chaired by 7ustice -eila /eth$ "ember$ -aw

Commission o( India$ discussed the sub5ect o( prisoners rights; the need (or transparency andaccountability6 and monitoring o( prison conditions#

The need (or prison re(orms has come into (ocus during the last (ew decades# The /upreme

Court and the High Courts have commented upon the deplorable conditions prevailing inside

the prisons$ resulting in violation o( prisoners rights# The problem o( prison administration

has been e1amined by numerous e1pert bodies set up by the 3overnment o( India# The most

comprehensive e1amination was done by the )ll India 7ail re(orms Committee o( *+,


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Commission have also$ in their annual reports$ drawn attention to the appalling conditions in

the prisons and urged governments to introduce re(orms#

Prisoners rights have become an important item in the agenda (or prison re(orms# This is due

essentially to the recognition o( two important principles# >irstly$ the prisoner ?is no longer

regarded as an ob5ect$ a ward$ or a slave o( the state$ who the law would leave at the prison

entrance and who would be condemned to civil death#@ *It is increasingly been recognised

that a citiAen does not cease to be a citiAen 5ust because he has become a prisoner# The

/upreme Court has made it very clear in many 5udgements that e1cept (or the (act that the

compulsion to live in a prison entails by its own (orce the deprivation o( certain rights$ like

the right to move (reely or to practice a pro(ession o( ones choice$ a prisoner is otherwise

entitled to the basic (reedoms guaranteed by the Constitution#% /econdly$ the convicted

persons go to prisons as punishment and not (or punishment#=Prison sentence has to be

carried out as per courts orders and no additional punishment can be in(licted by the prison

authorities without sanction# Prison authorities have to be$ there(ore$ accountable (or the

manner in which they e1ercise their custody over persons in their care$ specially as regards

their wide discretionary powers#

It is thus the above two themes2 prison administration and prisoners rights2 are brought

under (ocus in this workshop#

This report summarises the deliberations o( the workshop$ highlighting the important issues

which emerged during the deliberations and the important recommendations which were

made during the sessions# The report does not present the deliberations in the chronological

seuence in which they were held but groups them under di((erent thematic heads#

*:r# 9urt .eudek$ The United Nationsin Imprisonment Today and Tomorrow- International Perspectives onPrisoners Rights and Prison Conditions eds#$ :irk van yl /mit and >rieder :unkel6 9luwer -aw and Ta1ation

Publishers$ :eventer$ .etherlands$ *++*#%Charles /hobra5 vs# /uperintendent$ Tihar 7ail$ )IR *+D,$ /C *&*E=7on 8agg# Prison /ystem2 ) Comparative /tudy o( )ccountability in Fngland$ >rance$ 3ermany and the.etherlands$ Clarenden Press$ 41(ord *++E

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Prisoners Rights

The Constitution o( India con(ers a number o( (undamental rights upon citiAens# The Indian

/tate is also a signatory to various international instruments o( human rights$ like the

Gniversal :eclaration o( Human Rights which states that; ?.o one shall be sub5ect to torture

or cruel$ inhuman or degrading treatment o( punishment@E# )lso important is the Gnited

.ations Covenant on Civil and Political Rights which states in part; ?)ll persons deprived o(

their liberty shall be treated with humanity and with respect (or the inherent dignity o( the

human person@ There(ore$ both under national as well as international human rights law$ the

state is obliged to uphold and ensure observances o( basic human rights#

4ne o( the best tenets o( human rights law is that human rights are inalienable and under no

circumstances can any authority take away a persons basic human rights# The (act that this

tenet is not sometimes made applicable to prisoners is well documented# There are

innumerable 5udgements o( /upreme Court and High Courts$ showing how prisoners rights

are violated# The 5udgement highlighted the highly unsatis(actory conditions prevailing inside

the prisons and the (ailure o( the prison authorities to provide an environment which is

conducive to the maintenance o( prisoners rights$ partly rooted in the belie( that the prisoners

do not deserve all the rights and the protections that the constitution provides to all citiAens#

Besides being morally wrong and legally invalid$ this belie( does not show adeuate

recognition o( some basic (acts about the prison population#

4ut o( the total population o( %$%'$*&, in the country on *#*#*++D# *$'=$


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It is against the above backdrop that some important rights o( the prisoners were discussed in

a paper presented at the workshop by "s# "arion "acgregor o( the Commonwealth Human

Rights Initiative CHRI!#+ The paper provided an outline o( some important rights o(

prisoners$ like the Right to ,ive with &man 'ignity# Right to Pnishment as Prescri%ed %y

,aw# Right to %e ree o! etters or &andc!!s# Right to Commnication and In!ormation#

Right to Consel# Right to .rit o! &a%eas Corps and the Right to Air $rievances#

Besides discussing the legal sources o( the rights$ the paper made some suggestions which

could prove help(ul in ensuring an element o( transparency and accountability in prison

administration# /ome o( the suggestions made in CHRIs paper will be discussed later in this

report#

Prison Conditions: First Hand

The workshop provided a uniue opportunity to e12prisoners to narrate their e1periences$ and

to the delegates to share and learn (rom them about the conditions prevalent behind the prison

walls# The (amily members o( e12prisoners$ who also spoke at the workshop$ in(ormed the

delegates about the su((erings and hardships (aced by them while coping with the problems o(

detention o( their close relatives in the prisons# This session constituted a very important part

o( the workshop$ as the e12prisoners and their (amily members gave (airly graphic$ vivid and

moving accounts as well as valuable insights into the problems o( those held in custody#

The (irst speaker in this session$ "r#3uddu 9oshti$ had been in and out o( prisons on several

occasions during the last *, years# He mentioned that he was trans(erred (rom prison to

prison throughout the state and once even out o( the state to "aharashtra# This$ he alleged$

was due to his continued protests against the appalling conditions prevailing inside the

prisons and against the abuse o( authority by the prison sta((# He spoke o( the atmosphere o(

repression e1isting in prisons which discourages the prisoners (rom voicing their grievances

and complaints against authority# "r# 9oshti said that the e1treme third degree measures

that he had been sub5ected to during the eighteen long years had le(t him (ar too weak

physically to earn livelihood through labour$ and that his long terms in prisons had not

euipped him with vocational skills that would sustain him as a skilled worker# He also

+Prisoners Rights / Need !or Transparency and Acconta%ility CHRIs paper presented at the 0orkshop

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claimed to be a victim o( social stigmatisation which made rehabilitation all the more

di((icult#

"r# 9oshti complained that those with money$ power and clout are privileged with remission

o( sentences$ better (ood$ medical care etc# He alleged that o(ten on payment o( money to

members o( sta(($ prisoners are given special diet or admitted to hospital even though they do

not have access to these (acilities#

"r# 9oshti blamed the "PHRC (or its (ailure to bring about any change in prison conditions

and complained that all his petitions have thus (ar been ignored#

The second e12prisoner$ "r# Patel$ complained o( over crowding as well as o( poor medical

(acilities# He had su((ered due to absence o( adeuate medical care in the prisons$ which

resulted in his losing one eye# He also spoke about the incidence o( lunacy resulting (rom

mental strain in prisons# "r# Patel alleged that it was local bosses in the prisons having

money or muscle power or political clout$ who were invariably given privileged treatment#

The delegates were in(ormed about the compliant system and that prisoners could write to

their relatives or (riends or to relevant authorities about their problems# However$ the letter

were to be given open to the warder at the weekly parade$ thus suggesting a lack o( privacy

which could account (or the loss o( several letters containing complaints o( prisoners#

"r# Patel in(ormed the delegates that the system o( monitoring prison conditions was

e1tremely ine((ective# In his e1perience$ visitors$ o((icial or non o((icial$ hardly ever came

and even i( they did$ their check was merely routine$ while most o( their time was spent

chatting with the prison authorities# He also mentioned that there was hardly any legal aid

available to prisoners and that lawyers rarely visited the prisons to give legal advice to the

prisoners#

The ne1t person who spoke was the younger brother o( "r# Patel# He said that he had visited

his brother (reuently in the 5ail during the eight year period# The main problem (aced by him

was to avail his visiting rights without bribing prison sta((# )lthough bribes were not openly

asked (or$ it was an unspoken rule that the visiting time was in direct proportion to the money

that one secretly paid to the warder# 4ne could meet ones relatives without paying bribes$

but the (reuency would be greatly reduced and the time allowed would be very short# In his

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e1perience$ on payment o( a bigger amount$ one could even go inside and talk to the prisoner

(rom the visitor and provides little privacy# He also alleged that o(ten the (ood or some other

items sent to the prisoner did not reach the person# "uch o( it was either stolen or consumed

by the prison sta((#

The last speaker in this section was "rs# "alati "aurya whose husband was convicted and

sentenced to the li(e imprisonment# "rs# "aurya e1plained her plight as a woman without

(inancial or social support$ while having to support two children and an aging mother2in2law#

/he gave instances when she was not allowed to meet her husband and had to pay bribes to

various members o( the prison sta((# .ot only was she shown little sympathy but was also

humiliated at times by the sta((# "rs# "aurya complained that in spite o( a number o(

petitions on her part to stay the trans(er o( her husband to another prison$ he was moved (ar

away (rom their home town$ making visits all the more di((icult# "rs# "aurya also cited the

instance when her husband was not let out on leave despite his mother being ill and was

(inally only granted leave (or the day when she died#

The Problems

The complaints o( the e12prisoners and their relatives need to be highlighted not as cases o(

individual su((ering but as e1amples o( the general systemic malaise that a((ects the prison

system$ leading to serious human rights violations# The (ollowing are some o( the important

problems o( the prisons and related issues$ having a bearing on prisoners rights$ which were

discussed by the workshop#

0vercrowding

4vercrowding in Indian prisons is seen as the root problem that gives birth to a number o(

other problems relating to health care$ (ood$ clothing and poor living conditions# "r# 7ustice

8enkatachliah$ while inaugurating the workshop$ re(erred to this problem# He said that the

prison population o( about %$%E$


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7ustice 8enkatachaliah$ the problem o( overcrowding was so acute that inmates o(ten had to

sleep in shi(ts o( =2E hours due to lack o( space#

4vercrowding has also begun to a((ect the attempts o( the prison administration to empower

prisoners with skills that would involve them in gain(ul employment a(ter release# These

attempts come in (orm o( workshops where prisoners are taught carpentry$ printing$ binding$

doll2making$ typing etc# however$ due to the pressing need (or space$ more and more

workshops are being used to house prisoners# In "adhya Pradesh$ currently only *' out o(

*%< prisons can a((ord the lu1ury o( maintaining workshops and these are also increasingly

coming under threat due to the increasing problem o( overcrowding#

)ccording to :r# Hira /ingh$ Consultant$ .HRC$ optimum population capacity o( prisons

needs to be assessed and provisions made accordingly# Thus$ no central 5ail should hold more

than D&< prisoners and no district 5ail$ more than E


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overcrowding is to decriminalise certain o((ences and (ind alternatives to imprisonment$

particularly in petty o((ences and make minor o((ences compoundable#

:elay in completing cases is responsible (or overcrowding in 5ails# )n important (actor

responsible (or delaying trials is the (ailure o( the agencies to provide security escort to the

undertrials to the courts on the dates o( trial hearings# The prison department blames the

police (or (ailing to provide adeuate escort when reuired# The police$ however$ have their

own problems and cite law and order reuirements and security duties (or 8IPs as having

overriding priority in deciding deployment o( manpower# The only solution tot he problem is

(or the /tate 3overnment to provide trained manpower e1clusively (or prison departments

reuirement o( escorting prisoners# It was suggested that the armed police sanctioned (or this

purpose should always be kept at the disposal o( the prison department#

Prisons are also being used as multipurpose institutions$ to house not only those convicted o(

crimes but also those who do not need incarceration but medical and psychiatric treatment#

)lthough there are many 5udgements o( the higher courts denouncing the use o( prisons as

homes (or the mentally ill$ the practice continues to e1ist at some places#

Undertrials and ,egal Aid

/ome important issues about providing legal aid to the needy and poor were discussed in a

paper presented by "r# .#9# 7ain$ "ember /ecretary$ /tate -egal /ervice$ "adhya Pradesh#

"r# 7ain mentioned that legal aid was a (undamental right o( an indigent person in the G/)

and in G9# In India also$ the /tate is obliged to provide legal aid to the poor$ as the Indian

Constitution makes it one o( the :irective Principles o( the /tate Policy to do so# However$ as

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witnesses has begun$ it should be continued on day to day basis till completion o( the case$

this does not happen# "r# 7ain suggested that an amendment should be made in the Cr#P#C# to

make it possible (or an undertrial prisoner to plead guilty at any stage o( the trial# It was

(urther suggested that the -ok )dalats should deal not only with compoundable cases but also

with cases where the accused pleads guilty# He advocated strongly (or the introduction o( the

system o( plea bargaining by making necessary amendments in laws# It was$ however (elt by

some delegates that some sa(eguards would have to be instituted to minimise the scope (or

misuse o( the plea bargaining system# 4ne could always plea bargain (alsely 5ust to avoid

being kept in prison as an undertrial#

Pro(essor B# B# Pande o( the >aculty o( -aw$ Gniversity o( :elhi$ in(ormed the workshop

about the work that was done by him and his students in Tihar 7ail in the (ield o( legal aid#

-egal )id consists o( (our essential components# The (irst step is to impart legal literacy with

the aim o( spreading awareness amongst prisoners about their rights and obligations and

sensitising the prison administration# legal aid must help the prison system in reducing

re(orms# The ne1t step is that o( litigation$ where the legal aid workers take up cases o(

prisoners in courts and see that 5ustice is done# It would also be necessary to keep identi(ying

those who need and deserve legal aid# To make legal aid e((icient and easily available$

Pro(essor Pande stressed to need (or para2legal sta(( to work in prisons with both convicts and

undertrials# It was (urther suggested that there should be greater involvement o( -ok )dalats

in criminal cases$ which at present is limited# -astly$ constant monitoring o( the prison

conditions to identi(y inadeuacies and shortcomings o( the prison administration and suggest

changes in law to bring about the desired re(orms was discussed as essential to the entire

system o( legal aid#

)s observed by the "ulla Committee$ most prison inmates belong to the economically

backwards classes and this could be 2JattributeK2 to their inability to arrange (or the bail

bond# -egal aid workers need to help such persons in getting them released either on bail or

on personal recognisance# Bail provisions must be interpreted liberally in case o( women

prisoners with children$ as children su((er the worst kind o( neglect when the mother is in

prison#

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-imiting the powers o( the police to arrest$ applying the principle o( bail not 5ail in ma5ority

o( cases and releasing persons on personal recognisance and adding to the list o(

compoundable o((ences would help in reducing overcrowding in 5ails#

&ealth Care and 3edical acilities

The problems relating to the health o( prisoners and lack o( adeuate medical (acilities in

Indian prisons received considerable attention in the workshop# 7ustice 8enkatachaliah

re(erred to a recent study o( custodial deaths in 5udicial custody done by the .ational Human

Rights Commission$ which revealed that a high percentage o( deaths were attributable to the

incidence o( tuberculosis amongst prisoners# In recent times$ there has also been a disturbing

rise in the percentage o( HI8 positive inmates# /pecial and urgent care is reuired to look

a(ter such cases#

:ue to overcrowding$ inmates have to live in e1tremely unhygienic conditions$ with little

concern (or health or privacy# 4(ten cells built to house one or two persons now

accommodate twice or three times the number# "ost toilets are open$ denying the prisoner his

basic right to privacy and human dignity$ and are also dirty# 0ater shortage being the rule

than the e1ception the toilets prove to be the ideal breeding grounds (or health haAards and

epidemics#

7ustice -eila /eth gave a (irst hand account o( the health (acilities available to prisoners$

based on her e1perience as the chairperson o( the enuiry committee set up to investigate the

death o( Ra5an Pillai in Tihar 7ail# Health care o( the prisoner should be treated as a special

responsibility o( the prison administration as the prisoner$ in (act$ is handicapped by the

inability to choose the kind o( medical treatment reuired# There is o(ten little provision (or

support and succour (rom (amily or (riends and the prisoner is solely dependent on his

custodians to provide him adeuate medical (acilities# Luite o(ten the prison authorities do

not take this responsibility as seriously as they should# "edical checks are routine and

complaints o( ill2health are not attended to urgently#

4nce again the systemic problems come to sur(ace# >or e1ample$ the sanctioned strength o(

doctors and para2medical sta(( in many prisons is much less than what is reuired# )s "r#

3#9# )garwal$ )dditional Inspector 3eneral Prisons!$ "adhya Pradesh$ in(ormed$ the

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7abalpur 7ail in "#P# was sanctioned a strength o( three doctors way back in *+&' when the

number o( inmates in that prison was only &&< to '


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:rug addiction is on the increase in prisons and in many cases leads to other diseases$ such as

)I:/ and Tuberculosis# The ne1us between drugs and crime is getting stronger day by day#

"r# /ankar /en$ :irector 3eneral Investigations!$ .ational Human Rights Commission$ said

that there was evidence that large drug gangs recruited inmates (rom prisons to increase the

use o( drugs# There e1ist$ according to :r# Hira /ingh$ =


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getting the bene(it o( proviso to /ection E=D Cr#P#C$ according to which they can be released

on bail even in non2bailable cases# The Commission has now insisted on the prison

authorities to take up the cases o( women undertrials with courts so that they can be released

on bail#

-ittle has been done to attend to the special needs o( women inside the prisons# To give one

e1ample$ the "ulla Committee report o( *+,= had recommended that ?at every prison where

there is a su((iciently large number o( women prisoners$ say$ %& or above!$ a (ull time lady

o((icer should be appointed# )t other prisons arrangement should be made (or part time lady

medical o((icers#@*%There are *%< prisons in "adhya Pradesh and none o( them has provided

(or a lady doctor (or women prisoners$ leave alone providing e1tra medical (acilities to

pregnant women#*=7ustice /eth suggested that women should be allowed to return to their

(amilies (or delivery$ as that time they need special support and care which they cannot get in

prisons#

Then there is the problem o( rehabilitation# 0omen su((er (rom a low social and economic

status within their own (amilies and (ind it harder to get back into society upon release than

men# It was suggested that such destitute women should be euipped with vocational skills

and protective homes to be established to provide shelter to them a(ter release#

"r# 7#"# Bhagat mentioned in his paper*Ethat a ma5ority o( women detained in sa(e custody

are not the standard criminal o((enders but those who have escaped (rom a repressive

environment o( their homes$ brothels or criminal gangs# He suggested that (emale prisoners

should be imparted prison education and training programmes$ irrespective o( their status as

convicts or undertrials$ to enable them to (ace the world a(ter release#

Classi!ication o! Prisoners

The rationale behind the e1isting system o( classi(ication o( prisoners came up (or discussion

in the workshop# It was considered essential to prevent undertrials$ (irst timers and casual

prisoners (rom being in(luenced$ bullied and abused by the (ew but dominant hard core

criminals in prison# It was observed that 5uveniles or young o((enders$ who are housed with

*%Report o! the All India "ail Committee# )*+2-+4*=/ource; The Prison :epartment$ "adhya Pradesh*EPrisoners Rights# inclding .omens Rights ) paper presented in the workshop

*=


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other hardened criminals$ o(ten come out o( prison only to commit (ar more serious crimes

than they had done earlier#

)t present$ prisoners in Indian 5ails are classi(ied into di((erent classes not on the basis to

their criminal record but according to their social$ economic and educational background#

This$ in (act$ is a legacy o( our colonial past which we have not shed# It is in this connection

that a re(erence was made in the workshop to the report o( 7ustice /antosh :uggal Committee

appointed by the -t# 3overnor o( :elhi# This Committee was appointed on the orders o( the

/upreme Court in a civil writ petition in which the e1isting system o( classi(ication was

challenged#

The Committee$ in its report$ mentioned that the e1isting system o( classi(ication$ based on

criteria$ like social status$ education$ habit$ mode o( living etc# was repugnant to the concept

o( euality propounded by )rticle *E o( the Constitution o( India and should be abolished#

The broad criteria (or segregation o( prisoners$ according to the Committee$ should include

Convicts$ Gndertrials$ )ge$ .ature o( Crime$ Previous History whether habitual or casual!$

Prison Term$ 9ind o( /entences$ .ationality$ Civil Prisoners$ :etenues$ /ecurity

Reuirements$ :isciplinary or )dministrative reuirements$ Correctional Fducational or

"edical .eeds# The recommendations made by the Committee about classi(ication o(

prisoners have been accepted by the :elhi )dministration# The workshop (elt that these

recommendations merited implementation by prison administrators across the country# The

/tate 3overnments should be persuaded to implement the recommendations# The

Commonwealth Human Rights Initiative has already circulated the recommendation to all

/tates and Gnion Territories#

Prison Administration

The workshop acknowledged that protection and promotion o( human rights in prisons was

linked to the service and working conditions o( the prison sta(($ though it was also stressed

that the poor working conditions could not be regarded as an e1cuse (or violation o(

prisoners rights#

Prison Sta!!-.or5ing and Service Conditions

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Central to the prison administration is the problem o( demoralisation and lack o( motivation

o( the prison sta(( that was reiterated by most participants in the workshop$ particularly those

belonging to the prison department# It was pointed out that the conditions in which the lower

echelons o( the prison sta(( lived were in some cases worse than those o( the prisoners# This

was seen as an important (actor contributing to the poor (unctioning o( the prisons$ apathy o(

the prison sta(( towards the plight o( the prisoners$ corruption and the over all deprivation o(

the prisoners o( their basic amenities# /uch substandard conditions o( service produce a

culture o( (rustration and dehumanisation in the service which o(ten spills over and gets

translated into aggression on prisoners# )s e1pressed by members o( the prison sta(( and

acknowledged by other delegates$ the conditions o( work create an environment that

discourages initiative$ leadership ualities and enlightened rights based approach#

"r# )ivalli$ )dditional :3 Prisons o( 7ammu and 9ashmir pointed out *& that the prison

administration has basically three levels the management level :3MI3M:I3 etc#!6 the

supervisory level the /uperintendentsM:eputy or )sst /uperintendentM 7ailers etc#!6 and the

grassroots level Head 0ardenM0ardens etc#!# The o((icers at management level$ ma5ority o(

whom are on deputation (rom the police service$ consider this as a punishment posting and

are generally too demoralised to contribute signi(icantly to the building up o( the department#

"ost o( them are merely time servers# The supervisory level$ consisting o( sta(( belonging to

the prison service$ too is demoralised because o( poor service conditions$ lack o( career

opportunities and low public esteem# )t the grassroots level$ the department has people who

remain inside the prison walls$ interacting with prisoners most o( the time# This (actor$

combined with their pathetic service conditions$ has the e((ect o( dehumanising them# /ome

o( them develop vested interests and 5oin hands with criminals# "r# )ivalli suggested drastic

changes in the organisational structure$ control and service conditions o( the prison

department# The package suggested by him would reuire a! having a common cadre (or

prison and (ire services at grassroots level$ with rotational cycle o( postings to be e((ected

a(ter putting them through re(resher courses6 b! providing a pro(essional and better

supervisory level by prescribing higher uali(ications with better emoluments and status6 and

c! having a 5udicious and humane management level by having 5udicial o((icers at the helm

o( a((airs and placing the administrative control o( the prison department with the /tate High

Courts# It was (elt that the suggestions at a! and c! would not be acceptable#

*&Prison Administration ) paper presented by "r# 8eeranna )ivalli$ )dditional :3P$ Prisons and >ire/ervices$ 3overnment o( 7N9 in the workshop

*&


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"r# )garwal was o( the opinion that the prison administration was not able to recruit and

retain competent people due to its unattractive service conditions and lack o( recognition by

the government and the public o( the needs o( the department# It was suggested by him that

the recommendation to set up an )ll India Prisons /ervice made earlier by :r# 0#C#

Reckless$ an G. e1pert$ who was invited by the 3overnment o( India to study prison

problems in the country *+&*2&%! and other recommendations contained in the reports o( the

)ll India 7ail "anual Committee *+&D2&,!$ the 0orking 3roup on Prisons *+D*2D%!$ the

"ulla Committee *+,


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Issues o( remuneration and promotion opportunities o( the prison sta(( were discussed# The

prison services$ especially in the lower ranks$ are mostly poorly paid and least glamorous o(

all state public services# 8ery (ew come into the prison services voluntarily and (ewer still

would recommend it to others# The (eeling in the ranks was that the government as well as

the public at large was totally apathetic towards them# Prison o((icers complained that the

only attention they received (rom the public was negative and their per(ormance was hardly

ever appreciated or encouraged#

The deplorable service conditions are made worse by the near complete absence o( vertical

mobility in the department$ especially (or the lower or middle order ranks# 7ail o((icials are

known to occupy the same post (or twenty (ive to thirty years which is o(ten the cause (or

lack o( motivation# In a paper*Dcirculated in the workshop$ 7ustice )wasthy$ "ember$ "#P#

Human Rights Commission made a strong plea (or improvement in the remuneration and

promotion prospects (or di((erent ranks in the prison department# It was suggested that the

pay2scales o( 5ail2employees should be similar to those sanctioned (or euivalent ranks in the

police department# This recommendation had been made earlier by the 9apoor Committee

too#

The posts o( .aib2Tahsildars$ /ub2Inspectors o( Co2operative /ocietiesMF1cise :epartment

and )ssistant 7ailers are kept at par (or selection by the "#P# Public /ervice Commission#

Though the academic uali(ications prescribed (or the e1amination are the same and selection

is done through a common e1amination$ yet the 3overnment in the very beginning

downgrades the posts o( the prison department by prescribing lower scales o( pay (or the

posts o( )ssistant 7ailer# 0hile the pay2scale (or other posts is Rs# *E


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time$ his basic remuneration increases to Rs# %


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which is such an important (unction$ is placed in charge o( those who have neither the

reuired aptitude nor the competence (or the 5ob thrust on them# )ll this needs to be changed

and training o( prison sta(( needs to be assigned to those who have the reuired vision and

understanding o( the prison problems#

The workshop suggested that the /tate 3overnments should be persuaded to establish training

institutions e1clusively (or the basic as well as in2service training o( the prison sta((# It was

(elt that human rights needed to be central to all training programmes# The .HRC and the

/tate Human Rights Commission should ensure that the human rights component is made

central to all prison training modules adopted and implemented by the prison training

institutions#

Acconta%ility

)s we have seen in the earlier sections$ the deplorable service conditions o( the prison sta((

and their lack o( motivation and sel( esteem seem to logically e1tend into a culture that

encourages corruption and malpractices# It was recognised in the workshop that the problem

o( corruption in the prison administration was ine1tricably linked to the violations o( human

rights o( prisoners#

Besides improving the service and working conditions o( the prison sta(($ what is needed is

the introduction o( mechanisms that would ensure an element o( transparency and

accountability in the prison administration# The need (or accountability was e1pressed by

several delegates at the workshop# "r# 9apoor suggested that giving access to media and

civil society via the involvement o( non2governmental organisations would be one way o(

ensuring higher level o( accountability and transparency ion the prison system# "r# )ivalli

(elt that the international and national attention (ocused on human rights conditions in 7ammu

and 9ashmir worked as a catalyst to introduce re(orms in the state prison conditions#

The paper presented by CHRI places stress on the need to educate prisoners about their

rights#*,8iolations in many cases occur because o( lack o( awareness on the part o( prisoners

about what they are entitled to# Fducating them about their rights would have the e((ect o(

*,Prisoners Rights: Need !or Transparency and Acconta%ility ) Paper presented in the workshop by "s#"arion "acgregor o( the CHRI

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empowering them# It was suggested that a "anual$ e1plaining to the prisoners their rights and

obligations$ procedure (or lodging complaints$ the conduct that is e1pected o( 5ail

administration etc# should be prepared in simple language (or prisoners bene(it# In (act$ such

a "anual would bene(it the 5ail administration also by providing them clear guidelines in

important areas o( their work# The "anual should be supplemented by the e((orts o( the

.34s to do legal literacy work amongst prisoners#

The system o( prison visitors could provide an e((ective mechanism to monitor prison

conditions provided it worked viably# There was a general consensus in the workshop that the

system was not (unctioning e((ectively in most places# Fither the Boards o( 8isitors have not

been constituted and at places where they e1ist$ they seldom visit prisoners# The e12o((icio

visitors also do not take their responsibility o( visiting prisons$ ascertaining prisoners

grievances and providing redress seriously# It was suggested that the visitors should be

chosen (rom amongst those who have an interest in prisons and knowledge o( how they

should be chosen (rom amongst those who have an interest in prisons and knowledge o( how

they should be run# These could be members o( the media$ social workers$ 5urists$ retired

public servants etc#

)nother pre2reuisite to ensuring accountability is to establish an e((ective complaint system

that would encourage prisoners to complain against systemic and other (ailures within the

prison system without (ear o( retribution# 4nce a complaint is made$ there should be a uick

and impartial enuiry (ollowed by providing redress i( the complaint is (ound to be true# .o

attempt should be made to suppress wrongdoing and anyone (ound guilty o( abusing his

authority must be suitably dealt with# I( appropriate disciplinary action is taken$ not only does

the prisoner (eel that his or her rights have been upheld but it also sends a warning to other

sta(( that poor conduct will not be tolerated#

The workshop (elt that an e((ective accountability mechanism would bene(it not only the

prisoners but also the prison administration# )n open system would help the public target

their anger or disappointment at the root o( the problem# It would bring the problems out in

the open and the public may realise that in many cases the prison sta(( may not be responsible

(or what ails the prison department# 7ustice 8enkatachaliah e1pressed the view that opening

the prisons to civil society would be o( great help in ensuring transparency and accountability

in the prison administration#

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Implementation

It was (elt in the workshop that though prison problems had been e1amined by many e1pert

Committees and that the /upreme Court and High Courts had on many occasions passed

5udgements$ indicating inadeuacies and de(iciencies in di((erent areas o( prison work and

administration$ a comprehensive programme o( re(orms was yet to start# The

recommendations contained in the reports and 5udgements had remained mostly

unimplemented#

)n important (actor responsible (or lack o( (ollow2up action has been the absence o( political

will$ leading (inally to bureaucratic apathy towards the reuirements o( prison administration#

This apathy is re(lected in the scarcity o( (unds spared by the 3overnments out o( their annual

budgets (or prison administration# )s was shown in CHRIs paper presented by "s# "arian$

the percentage o( (unds allocated (or prison administration out o( the budgets o( the Gnion

and /tate 3overnments has shown a consistently declining trend$ even though there has been

some increase in absolute e1penditure on prisons# )n opinion was e1pressed in the workshop

that this lack o( political will was due to the (act that the prisoners did not constitute an

important constituency (or the politicians$ as they have no right to vote# The workshop$

there(ore$ recommended that the e1isting laws and arrangements should be reviewed so that

the prisoners could e1ercise the right to vote$ like any other citiAen#

The need to evolve a mechanism to ensure (ollow2up action on the recommendations o( the

committees$ con(erences and workshops and on 5udgements o( courts was also discussed in

the workshop# This would reuire monitoring and it was (elt that the .ational and /tate

Human Rights Commissions could play an active and prominent role in monitoring prison

conditions and ensuring action by the concerned authorities to introduce re(orms#

The New Prisons Bill

The new Prisons Bill dra(ted by the .HRC called the Prisons )dministration and Treatment

o( Prisoners! Bill$ *++, was brought up (or discussion in a paper presented by "s# Catherine

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Pierce o( CHRI#*+The Bill was prepared by the .HRC earlier this year in response to calls

(or penal re(orm (rom various committees and more recently (rom the /upreme Court#

The e1isting legislation$ the Prison )ct o( *,+E$ was (ormulated when the country was under

the colonial rule# It has been criticised as being an outdated piece o( legislation$ which was

not in keeping with the modern view o( prisons as places o( rehabilitation rather than

retribution# In the recent caseRamamrthy v( State o! 6arnata5a *++D! % /CC 'E%$ the

/upreme Court stated that ?Othe century old Indian Prison )ct$ *,+E needs a thorough look

and is reuired to be replaced by a new enactment which would take care o( the thinking o(

Independent India and our constitutional mores and mandate#@

The paper (ocused on certain key issues$ like the e((icacy o( the supervisory mechanisms$

which the Bill proposes to establish as a means o( sa(eguarding prisoners rights# )n

important monitoring mechanism is the system o( prison visitors# 8arious courts as well as

the .HRC have severely criticised the working o( this system# The new Bill lacks provisions

which would strengthen the system o( visitors# Gnlike the *,+E )ct$ the new Bill does not set

out the duties and mandate o( prison visitors# I( the system is to be e((ective$ the visitors

should be mandated to e1amine all aspects o( prison li(e and not be restricted to a number o(

de(ined issues$ as the new Bill does#

The non2o((icial visitors$ according to the Bill$ are to be appointed by the Inspector 3eneral

o( Prisons# )(ter visiting the prisons$ they are then reuired to report back to the Inspector

3eneral# This provision thus marks a retrograde step in terms o( ensuring the impartiality and

independence o( visitors# There is no scope (or e1ternal oversight o( the prison

administration# It was (elt that the .ational and /tate Human Rights Commissions should be

given the mandate to appoint visitors who should then report back to the commissions and

also make their report public through the active and e((ective use o( the media#

:elegates at the workshop$ including "r# /ankar /en and "r# )ivalli$ (elt that opening the

prisons to civil society organisations would lead to greater transparency and accountability in

the prison administration# The new Bill must incorporate some provisions to institutionalise

such arrangements#

*+:iscussion Paper on the Prisons )dministration and Treatment o( Prisoners! Bill$ *++, by "s# CatherinePierce$ Researcher$ CHRI

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The new Bill establishes in Chapter I8 the right o( the prisoner to appeal to the prison

authorities (or any lapse in the provision o( basic amenities and (acilities$ arbitrary

punishment or any other matter considered legitimate# The Bill (ails to provide (or an

impartial body independent o( the prison administration to hear prisoners complaints#

/ome delegates$ particularly those (rom the prison department$ (elt that the .HRC should

invite representatives o( prison departments (rom the states to discuss their needs and

concerns# This would help in widening the debate on prison re(orms$ besides making the new

law re(lect the accumulated practical wisdom o( persons working in the (ield#

Reommendations

The workshop made several recommendations which have been stated at di((erent places in

the report# To avoid repetition$ we have not reproduced the recommendations (rom the above

te1t# However$ to provide a birds eye view o( the ground covered by the workshop$ a

summary o( the recommendations in a capsule (orm is provided under di((erent heads;

0vercrowding

4ptimum capacity o( prisons needs to be assessed# Central 7ails should not house

more than D&< inmates and district 5ails not mare than E


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)n )mendment should be made in the Cr#P#C# to enable an undertrial prisoner to

plead guilty at any stage o( the trial#

-ok )dalats should deal not only with compoundable cases but also with cases where

the accused pleads guilty# The scope o( work o( -ok )dalats in criminal cases shouldbe increased#

The plea bargaining system may be considered (or introduction a(ter adopting

necessary sa(eguards#

-egal aid workers should make greater use o( the 5udgement o( the /upreme Court in

Common Case v( Union o! India*++'! E /CC == and approach the courts to get

more persons released (rom 5ails#

-egal literacy drives should be launched with the aim not only o( sensitising the

prison administration but also o( spreading awareness amongst prisoners about their

rights and obligations#

It is necessary to keep identi(ying those who need and deserve legal aid# -egal aid

workers must identi(y such prisoners and educate them about their right to legal aid#

-egal aid workers must help in getting the undertrials released on bail and on personal

recognisance#

Para legal sta(( should be utilised to work in prisons and provide the reuired legal aid

to prisoners#

-egal aid workers must constantly monitor prison conditions and suggest changes in

law to bring about the desired re(orms#

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&ealth Care and 3edical acilities

It is necessary to review the strength o( doctors sanctioned (or prisons and ensure the

availability o( adeuate medical (acilities (or prisoners and prison sta((# )rrangements must be made to look a(ter the special reuirements o( women

prisoners# )t least one woman medical o((icer must be available at times to attend to

women prisoners#

The (irst medical e1amination o( the prisoner$ done at the time o( his entry into the

prison$ must be thorough# :etailed in(ormation about various aliments$ including past

medical history$ must be collected and (aith(ully recorded#

)deuate in(rastructural health care (acilities$ like well euipped ambulances$

stretchers$ dispensaries$ hospital beds etc# should be made available to the prison

administration#

/uitable arrangements should be made to provide psychiatric counselling to those

su((ering (rom chronic depression$ particularly to women prisoners#

There should be a clearly de(ined system o( responsibilities o( the prison sta(( in case

o( a medical emergency$ which should be made known to prisoners through a chart or

pamphlet#

.34s help should be enlisted in dealing with drug addicts and in establishing drug

de2addiction centres#

.omen Prisoners

Programmes should be implemented to sensitise the prison administration on gender

issues and the special needs o( women prisoners#

Besides special (acilities (or pregnant women$ arrangements should be made to allow

women to go back to their (amilies (or post natal care#

It is necessary to take special care to rehabilitate women prisoners$ as it is harder (or

them to (ind acceptance in civil society upon release than men# Thus women should

be specially euipped with vocational skills to empower them on their return to

society#

)rrangements should be made (or women to reside in special homes i( they (ind it

di((icult to get accepted in society a(ter release#

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Classi!ication o! Prisoners

Classi(ication o( prisoners on the lines o( education$ income ta1 status or socio2

economic background should be abolished and it should be done on the lines

suggested in the 7ustice /antosh :uggal Committee Report#

Implementation

) mechanism should be evolved to monitor and ensure the implementation o( various

recommendations made by di((erent e1pert committees$ courts and workshops (rom

time to time# The .HRC and the /tate Human Rights Commissions could take up this

work and ensure that (ollow2up action is taken to implement the recommendations#

F1isting laws and arrangements should be reviewed so that prisoners could e1ercise

their right to vote#

Prison Sta!!

The recommendations made earlier by many e1pert groups that there should be an )ll

India Prison and Correctional /ervice should be considered by the Central

3overnment#

"ost prisons su((er (rom shortage o( manpower# The /tate 3overnments should

periodically review the reuirements o( di((erent types o( sta(( reuired$ including

medical$ and take steps to remove the shortage#

There is considerable stagnation amongst di((erent ranks in the prison department due

to lack o( promotion opportunities# The governments should carry out a cadre review

and create additional opportunities (or promotion (or di((erent ranks based on a work

study#

The posts o( convict warders should be abolished and an euivalent number o( regular

number o( regular posts should be created to meet the reuirements o( manpower#

) conscious policy towards the induction o( more women in the prison administration

is necessary to bring about gender balance and sensitivity within the system#

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The pay2scales o( lower ranks in the prison department need to be reviewed# The /tate

3overnments should not downgrade the posts o( the prison department by prescribing

lower pay scales (or them as compared to the posts o( the other departments$

particularly when the recruitment to these posts is done by the /tate Public /erviceCommission on the basis o( a combined recruitment test#

The /tate 3overnment may consider establishing parity in the pay scales o( lower

ranks in the prison department with those in the police department a(ter doing an

analysis o( 5ob responsibilities o( the selected ranks in the two departments#

Training

It is necessary to organise periodic training programmes and re(resher courses (or all

levels in the prison administration#

)ll /tate 3overnments should establish training institutions e1clusively (or the basic

as well as in2service training o( the prison sta((#

The .HRC and the /tate Human Rights Commissions should ensure that the human

rights component is made central to all training modules adopted and implemented by

the prison training institutions#

The training o( prison sta(( must be made the responsibility o( those who are

pro(essionally competent and who have the reuired aptitude to bring about re(orms#

Acconta%ility

) "anual$ e1plaining to the prisoners their rights and obligations$ procedure (or

lodging complaints$ the conduct that is e1pected o( 5ail administration etc#$ should be

prepared in simple language (or prisoners bene(it# The "anual should be

supplemented by the e((orts o( the .34s to do legal literacy work amongst prisoners#

The system o( visitors should be made viable to (unction as an e((ective monitoring

mechanism# The visitors should be chosen (rom amongst those who have an interest

in prisons and knowledge o( how they should be run#

)ppointment o( visitors should be done on the advice o( the /tate Human Rights

Commission# The criteria (or selection should be made known to the public#

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)n e((ective complaint system should be established which would encourage the

prisoners to lodge complaints without (ear o( retribution# The complaints should be

enuired into (ully and impartially and strict action should be taken against the

persons (ound guilty# .o attempt should be made to suppress wrong doing by anymember o( the prison sta((#

Prisons should be opened to civil society organisations as this would help in ensuring

transparency and accountability in the prison administration#

New Prisons 7ill

The new Prisons Bill dra(ted by the .HRC must incorporate e((ective sa(eguardsagainst violations o( prisoners rights and establish mechanisms to ensure

accountability o( the prison sta(( (or violations#

The new Bill does not set out the duties and mandate o( the prison visitors# The visitors

should be mandated to e1amine all aspects o( prison li(e and not restricted to some

de(ined issues$ as the new Bill does#

The .ational and /tate Human Rights Commissions should be given the mandate to

appoint prison visitors who should then report back to the Commissions$ heads o( theprison department and make their report public through e((ective use o( mass media#

The Bills (ails to provide (or an impartial body independent o( the prison

administration to hear prisoners complaints# This lacuna should be removed and the

new law must institutionalise arrangements (or outside oversight o( investigations into

prisoners complaints#

The .HRC should invite a wider public debate on the Bill and also call representatives

(rom the /tate Prison :epartments to give their views so that the new law re(lects thepractical wisdom o( persons working in the (ield#

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human rights project

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