The workshop provided a unique opportunity to ex-prisoners to narrate their experiences, and to the delegates to share and learn from them about the conditions prevalent behind the prison walls. The family members of ex-prisoners, who also spoke at the workshop, informed the delegates about the sufferings and hardships faced by them while coping with the problems of detention of their close relatives in the prisons. This session constituted a very important part of the workshop, as the ex-prisoners and their family members gave fairly graphic, vivid and moving accounts as well as valuable insights into the problems of those held in custody.
The first speaker in this session, Mr.Guddu Koshti, had been in and out of prisons on several occasions during the last 18 years. He mentioned that he was transferred from prison to prison throughout the state and once even out of the state to Maharashtra. This, he alleged, was due to his continued protests against the appalling conditions prevailing inside the prisons and against the abuse of authority by the prison staff. He spoke of the atmosphere of repression existing in prisons which discourages the prisoners from voicing their grievances and complaints against authority. Mr. Koshti said that the extreme ‘third degree’ measures that he had been subjected to during the eighteen long years had left him far too weak physically to earn livelihood through labour, and that his long terms in prisons had not equipped him with vocational skills that would sustain him as a skilled worker. He also claimed to be a victim of social stigmatisation which made rehabilitation all the more difficult.
Mr. Koshti complained that those with money, power and clout are privileged with remission of sentences, better food, medical care etc. He alleged that often on payment of money to members of staff, prisoners are given special diet or admitted to hospital even though they do not have access to these facilities.
Mr. Koshti blamed the MPHRC for its failure to bring about any change in prison conditions and complained that all his petitions have thus far been ignored.
The second ex-prisoner, Mr. Patel, complained of over crowding as well as of poor medical facilities. He had suffered due to absence of adequate medical care in the prisons, which resulted in his losing one eye. He also spoke about the incidence of lunacy resulting from mental strain in prisons. Mr. 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 informed about the compliant system and that prisoners could write to their relatives or friends 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 of privacy which could account for the loss of several letters containing complaints of prisoners.
Mr. Patel informed the delegates that the system of monitoring prison conditions was extremely ineffective. In his experience, visitors, official or non official, hardly ever came and even if they did, their check was merely routine, while most of 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 next person who spoke was the younger brother of Mr. Patel. He said that he had visited his brother frequently in the jail during the eight year period. The main problem faced by him was to avail his visiting rights without bribing prison staff. Although bribes were not openly asked for, it was an unspoken rule that the visiting time was in direct proportion to the money that one secretly paid to the warder. One could meet one’s relatives without paying bribes, but the frequency would be greatly reduced and the time allowed would be very short. In his experience, on payment of a bigger amount, one could even go inside and talk to the prisoner from the visitor and provides little privacy. He also alleged that often the food or some other items sent to the prisoner did not reach the person. Much of it was either stolen or consumed by the prison staff.
The last speaker in this section was Mrs. Malati Maurya whose husband was convicted and sentenced to the life imprisonment. Mrs. Maurya explained her plight as a woman without financial or social support, while having to support two children and an aging mother-in-law. She gave instances when she was not allowed to meet her husband and had to pay bribes to various members of the prison staff. Not only was she shown little sympathy but was also humiliated at times by the staff. Mrs. Maurya complained that in spite of a number of petitions on her part to stay the transfer of her husband to another prison, he was moved far away from their home town, making visits all the more difficult. Mrs. Maurya also cited the instance when her husband was not let out on leave despite his mother being ill and was finally only granted leave for the day when she died.
The complaints of the ex-prisoners and their relatives need to be highlighted not as cases of individual suffering but as examples of the general systemic malaise that affects the prison system, leading to serious human rights violations. The following are some of the important problems of the prisons and related issues, having a bearing on prisoners’ rights, which were discussed by the workshop.
Overcrowding in Indian prisons is seen as the root problem that gives birth to a number of other problems relating to health care, food, clothing and poor living conditions. Mr. Justice Venkatachliah, while inaugurating the workshop, referred to this problem. He said that the prison population of about 2,24,000 in India in relation to the total population of the country was one of the lowest in the world. He pointed out that while some jails were comparatively empty, there were others which were overcrowded by about three times the capacity, though the percentage of overall overcrowding was about 9%. In some of the prisons inspected by Justice Venkatachaliah, the problem of overcrowding was so acute that inmates often had to sleep in shifts of 3-4 hours due to lack of space.
Overcrowding has also begun to affect the attempts of the prison administration to empower prisoners with skills that would involve them in gainful employment after release. These attempts come in form of workshops where prisoners are taught carpentry, printing, binding, doll-making, typing etc. however, due to the pressing need for space, more and more workshops are being used to house prisoners. In Madhya Pradesh, currently only 16 out of 120 prisons can afford the luxury of maintaining workshops and these are also increasingly coming under threat due to the increasing problem of overcrowding.
According to Dr. Hira Singh, Consultant, NHRC, optimum population capacity of prisons needs to be assessed and provisions made accordingly. Thus, no central jail should hold more than 750 prisoners and no district jail, more than 400. However, it was observed that even though in some cases as in MP, where more space is being commissioned and larger prisons are being constructed, the problem of overcrowding persists. According to a study done by the MP Prison Department, prison population is rising by 6.92% a year. As per expansion plans of the state government and presuming that all plans are completed, the total capacity of the prisons in MP would go up to 20,931. Although this seems to be a huge growth in capacity terms, the extent of overcrowding would still be to the tune of 56.43% by the year 98-99, and by the year 2005-6 it would go up to 151.18%.10 A serious and long term solution to the problem of overcrowding in prisons needs a review of the functioning of the entire criminal justice system, including the system of arrests, sentencing policies and notions of crime.
The National Police Commission had pointed out that 60% of all arrests were either unnecessary or unjustified.11 The police often look upon imprisonment as an easy solution and use preventive sections of law, like 151 of the Criminal Procedure Code indiscriminately. The liberal use of the power to arrest, while contributing significantly to the problem of overcrowding, leads to increased expenditure on jails. One way to deal with the problem of overcrowding is to decriminalise certain offences and find alternatives to imprisonment, particularly in petty offences and make minor offences compoundable.
Delay in completing cases is responsible for overcrowding in jails. An important factor responsible for delaying trials is the failure of the agencies to provide security escort to the undertrials to the courts on the dates of trial hearings. The prison department blames the police for failing to provide adequate escort when required. The police, however, have their own problems and cite law and order requirements and security duties for VIPs as having overriding priority in deciding deployment of manpower. The only solution tot he problem is for the State Government to provide trained manpower exclusively for prison department’s requirement of escorting prisoners. It was suggested that the armed police sanctioned for this purpose should always be kept at the disposal of the prison department.
Prisons are also being used as multipurpose institutions, to house not only those convicted of crimes but also those who do not need incarceration but medical and psychiatric treatment. Although there are many judgements of the higher courts denouncing the use of prisons as homes for the mentally ill, the practice continues to exist at some places.
Undertrials and Legal Aid
Some important issues about providing legal aid to the needy and poor were discussed in a paper presented by Mr. N.K. Jain, Member Secretary, State Legal Service, Madhya Pradesh. Mr. Jain mentioned that legal aid was a fundamental right of an indigent person in the USA and in UK. In India also, the State is obliged to provide legal aid to the poor, as the Indian Constitution makes it one of the Directive Principles of the State Policy to do so. However, as 70% of the prison population is illiterate, lacking an understanding of their rights, the poor do not always get the benefit of the provisions of law in this regard.
In addition, though there are panels of lawyers, at least in district courts in Madhya Pradesh, the panels do not have good and efficient lawyers.
Mr. Jain, in his paper, made some suggestions to speed up the trial process so that the population of undertrials is reduced. Though Section 309 Cr.P.C. suggests that the trial proceedings should be held as expeditiously as possible and once the examination of witnesses has begun, it should be continued on day to day basis till completion of the case, this does not happen. Mr. Jain suggested that an amendment should be made in the Cr.P.C. to make it possible for an undertrial prisoner to plead guilty at any stage of the trial. It was further suggested that the Lok Adalats should deal not only with compoundable cases but also with cases where the accused pleads guilty. He advocated strongly for the introduction of the system of plea bargaining by making necessary amendments in laws. It was, however felt by some delegates that some safeguards would have to be instituted to minimise the scope for misuse of the plea bargaining system. One could always plea bargain falsely just to avoid being kept in prison as an undertrial.
Professor B. B. Pande of the Faculty of Law, University of Delhi, informed the workshop about the work that was done by him and his students in Tihar Jail in the field of legal aid. Legal Aid consists of four essential components. The first step is to impart legal literacy with the aim of spreading awareness amongst prisoners about their rights and obligations and sensitising the prison administration. legal aid must help the prison system in reducing reforms. The next step is that of litigation, where the legal aid workers take up cases of prisoners in courts and see that justice is done. It would also be necessary to keep identifying those who need and deserve legal aid. To make legal aid efficient and easily available, Professor Pande stressed to need for para-legal staff to work in prisons with both convicts and undertrials. It was further suggested that there should be greater involvement of Lok Adalats in criminal cases, which at present is limited. Lastly, constant monitoring of the prison conditions to identify inadequacies and shortcomings of the prison administration and suggest changes in law to bring about the desired reforms was discussed as essential to the entire system of legal aid.
As observed by the Mulla Committee, most prison inmates belong to the economically backwards classes and this could be ->attribute<- to their inability to arrange for the bail bond. Legal 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 of women prisoners with children, as children suffer the worst kind of neglect when the mother is in prison.
Limiting the powers of the police to arrest, applying the principle of ‘bail not jail’ in majority of cases and releasing persons on personal recognisance and adding to the list of compoundable offences would help in reducing overcrowding in jails.
Health Care and Medical Facilities
The problems relating to the health of prisoners and lack of adequate medical facilities in Indian prisons received considerable attention in the workshop. Justice Venkatachaliah referred to a recent study of custodial deaths in judicial custody done by the National Human Rights Commission, which revealed that a high percentage of deaths were attributable to the incidence of tuberculosis amongst prisoners. In recent times, there has also been a disturbing rise in the percentage of HIV positive inmates. Special and urgent care is required to look after such cases.
Due to overcrowding, inmates have to live in extremely unhygienic conditions, with little concern for health or privacy. Often cells built to house one or two persons now accommodate twice or three times the number. Most toilets are open, denying the prisoner his basic right to privacy and human dignity, and are also dirty. Water shortage being the rule than the exception the toilets prove to be the ideal breeding grounds for health hazards and epidemics.
Justice Leila Seth gave a first hand account of the health facilities available to prisoners, based on her experience as the chairperson of the enquiry committee set up to investigate the death of Rajan Pillai in Tihar Jail. Health care of the prisoner should be treated as a special responsibility of the prison administration as the prisoner, in fact, is handicapped by the inability to choose the kind of medical treatment required. There is often little provision for support and succour from family or friends and the prisoner is solely dependent on his custodians to provide him adequate medical facilities. Quite often the prison authorities do not take this responsibility as seriously as they should. Medical checks are routine and complaints of ill-health are not attended to urgently.
Once again the systemic problems come to surface. For example, the sanctioned strength of doctors and para-medical staff in many prisons is much less than what is required. As Mr. G.K. Agarwal, Additional Inspector General (Prisons), Madhya Pradesh, informed, the Jabalpur Jail in M.P. was sanctioned a strength of three doctors way back in 1956 when the number of inmates in that prison was only 550 to 600. Though the prison population now is about 4000, the number of doctors remains the same. Even this limited strength is not always available as there are invariably a large number of vacancies in the posts of doctors in most prisons. Justice Leila Seth observed that even in a high profile jail like Tihar, in 1995, out of the seventeen sanctioned posts of medical officers, only six were occupied. Of these six, two were always on leave. Therefore, for a prison population of 9000 inmates, only four medical officers were available, of which 3 worked during the day and one at night.
Non-availability of adequate medical facilities for prisoners is largely due to the lack of full time doctors as well as lack of basic infrastructure, like well equipped ambulances, stretchers, dispensaries, hospital beds etc. sometimes, the prisoner may need expert and urgent medical attention which is not available within the jail premises. Transporting the sick prisoner out in the absence of vehicles and escort in districts sometimes poses a problem. For example, Mr. J.M. Bhagat, Member, Madhya Pradesh Human Rights Commission, narrated the instance of a prisoner in the Rewa jail, who lost an eye because the cataract could not be diagnosed and attended to in time. Sometimes, when the cells are closed, the warder who has the keys to the cells is not available, as a result of which quick medical aid is not possible in case of an emergency. Justice Seth quoted an instance where the doctor was required to administer injections through the bars as they could not have the cell opened. Thus in many cases, besides lack of resources, it is the existence of a dehumanised system in the prison which contributes to the problem. It is, therefore, important to humanise the relationship between the prisoner and the prison staff so that the latter are sensitised to the needs of the prisoners and regard themselves as the caretakers of the inmates.
The Mulaizha, which is the first medical examination of the individual when he is admitted to the prison, is generally regarded as a mere routine and done perfunctorily. Justice Seth suggested that the Mulaizha should be detailed and thorough, involving check up of all known and unknown ailments. This is essential as the majority of the prisoners who come from economically disadvantaged backgrounds rarely have complete knowledge of their ailments. Justice Venkatachaliah, in his inaugural address, informed the workshop that the NHRC was evolving a comprehensive format for the initial medical examination of the prisoners.
Drug addiction is on the increase in prisons and in many cases leads to other diseases, such as AIDS and Tuberculosis. The nexus between drugs and crime is getting stronger day by day. Mr. Sankar Sen, Director General (Investigations), National Human Rights Commission, said that there was evidence that large drug gangs recruited inmates from prisons to increase the use of drugs. There exist, according to Dr. Hira Singh, 30,000 drug addicts in Indian jails. The rise in incidence of drug abuse could be related to the rise in corruption and the easy access that miscreants outside may have to inmates. A careful monitoring is needed alongwith adequately equipped drug de-addiction centres. Justice Seth spoke about Aashiyana, a drug de-addiction centre in Tihar Jail. However Aashiyana too has started facing the problem of overcrowding. There is, therefore, an urgent need to get as much aid as possible from civil society and NGOs. NGOs should be encouraged to work inside the prisons and their efforts should be supported and supplemented by those of prison administration.
Besides suffering from physical ailments, the prisoner also undergoes considerable stress and trauma during his stay in prison. Imprisonment is often accompanied with depression and a feeling of isolation and neglect. It was therefore felt that active counselling must be made available to the prisoners to overcome these problems. Counselling should aim not merely at providing temporary relief by pulling them out of their depression, but at instilling hope and a sense of purpose in them and by equipping them with skills that may prove useful upon release.
Justice Seth suggested the need for a thorough overhauling of the arrangements in prisons to provide medical care and facilities. Most prisons are not equipped with an effective communication system that would inform the concerned authorities in case of a medical emergency. Besides establishing such a system, inmates must be thoroughly briefed about how to seek medical aid in case of emergency.
The workshop discussed the need to sensitise the prison administration to gender issues and specific needs of women prisoners. Mr. Bhagat informed the workshop that during inspection of several jails, it was found by the M.P.H.R.C. that a large number of women prisoners were detained in jails as undertrials for a long time. Women, due to their ignorance, are not even getting the benefit of proviso to Section 437 Cr.P.C, according to which they can be released on bail even in non-bailable cases. The Commission has now insisted on the prison authorities to take up the cases of women undertrials with courts so that they can be released on bail.
Little has been done to attend to the special needs of women inside the prisons. To give one example, the Mulla Committee report of 1983 had recommended that “at every prison where there is a sufficiently large number of women prisoners, (say, 25 or above), a full time lady officer should be appointed. At other prisons arrangement should be made for part time lady medical officers.”12 There are 120 prisons in Madhya Pradesh and none of them has provided for a lady doctor for women prisoners, leave alone providing extra medical facilities to pregnant women.13 Justice Seth suggested that women should be allowed to return to their families for delivery, as that time they need special support and care which they cannot get in prisons.
Then there is the problem of rehabilitation. Women suffer from a low social and economic status within their own families and find it harder to get back into society upon release than men. It was suggested that such destitute women should be equipped with vocational skills and protective homes to be established to provide shelter to them after release.
Mr. J.M. Bhagat mentioned in his paper14 that a majority of women detained in safe custody are not the standard criminal offenders but those who have escaped from a repressive environment of their homes, brothels or criminal gangs. He suggested that female prisoners should be imparted prison education and training programmes, irrespective of their status as convicts or undertrials, to enable them to face the world after release.
Classification of Prisoners
The rationale behind the existing system of classification of prisoners came up for discussion in the workshop. It was considered essential to prevent undertrials, first timers and casual prisoners from being influenced, bullied and abused by the few but dominant hard core criminals in prison. It was observed that juveniles or young offenders, who are housed with other hardened criminals, often come out of prison only to commit far more serious crimes than they had done earlier.
At present, prisoners in Indian jails are classified into different classes not on the basis to their criminal record but according to their social, economic and educational background. This, in fact, is a legacy of our colonial past which we have not shed. It is in this connection that a reference was made in the workshop to the report of Justice Santosh Duggal Committee appointed by the Lt. Governor of Delhi. This Committee was appointed on the orders of the Supreme Court in a civil writ petition in which the existing system of classification was challenged.
The Committee, in its report, mentioned that the existing system of classification, based on criteria, like social status, education, habit, mode of living etc. was repugnant to the concept of equality propounded by Article 14 of the Constitution of India and should be abolished. The broad criteria for segregation of prisoners, according to the Committee, should include Convicts, Undertrials, Age, Nature of Crime, Previous History (whether habitual or casual), Prison Term, Kind of Sentences, Nationality, Civil Prisoners, Detenues, Security Requirements, Disciplinary or Administrative requirements, Correctional Educational or Medical Needs. The recommendations made by the Committee about classification of prisoners have been accepted by the Delhi Administration. The workshop felt that these recommendations merited implementation by prison administrators across the country. The State Governments should be persuaded to implement the recommendations. The Commonwealth Human Rights Initiative has already circulated the recommendation to all States and Union Territories.