Everyone prays to never see the bars of prison in their lifetime. Yet, as fickle as life is, it is quite hard to predict the future. It is in everyone’s benefit to know a little bit about prison life; for movies and cinemas do not do justice to the true picture of our justice system. Criminals are a part of our society, hence how they affect the society; while being behind bars and once, they are out is of the essence. The life of an offender, once released from incarceration is little known to us. This article strives to shed light in this part of society; which has been left behind in the blind race for progress.
For greater understanding, I will refer to a famous play ‘Justice’; written by John Galsworthy in 1910 which deals on the same themes. This play led to prison reforms in England after its publication. The play criticizes the double standard of justice; which sympathizes with the rich and gives severe punishments to the lower class; without considering the circumstances which led them to commit the crime.
The play is about a poor clerk named Falder. Falder is in love with a married woman Ruth who is in an abusive marriage. Falder dreams of saving Ruth and her children by running away from the country. One day an opportunity presents to Falder when he is asked to encash a cheque for 9 pounds. Falder in a space of four minutes decides to change the numbers on the cheque from nine to ninety. He then encashes the cheque and keeps the eighty-one pounds with himself. Next day, the partners find out about the forgery and start suspecting a clerk who was missing and nobody suspects Falder. Later, the bank cashier is called and he recognizes Falder as the one who encashed the cheque. Falder initially refuses but then accepts his offence. He promises to pay back the money. But the partners are firm and get him arrested.
Later he is tried before the court. Falder’s counsel, a young lawyer, Frome, tries to explain Falder’s thinking at the time of committing the crime. Falder states that all this happened in four minutes; and he even wanted to confess next day on his own but his fear prevented him from doing so. He wanted to inform his employers once they reached South America. Frome states that Falder was mentally disturbed and helpless. He should be treated as a patient or his whole life will be lost. However, the judge convicts Falder for three years with solitary confinement. Falder faces a tough time in prison. Like the other prisoners, he loses some of his sanity.
After his sentence is over, Falder is released. He sleeps in the park and his sister is not allowed to meet him. Her husband offers him twenty-five pounds to leave the country. He tries to work at different places but as he is a former convict, he is frequently fired. Ruth has run away from her husband and is living by selling herself. He goes back to his old firm and begs for another chance. The partners are willing to take him back on one condition; that he leaves Ruth and tries to live a dignified life.
Falder pleads that he has only Ruth and nobody else. At that time, the police superintendent enters with an arrest warrant for Falder; as he has not reported regularly after his release; and he tried to forge his references while looking for employment. Falder feels that has no choice and fells down a flight of stairs. He breaks his neck and dies. The play ends showing that now Falder is finally safe.
The play shows how law is less interested in the causes leading to the crime than the crime itself. It did not end in theatres and still is relevant in today’s time. The reformation of the law under prisons with reduced solitary confinement proved how effective this play and its ideas were.
The justice system does not consider the the circumstances and what goes inside the mind of a person who commits a crime. Often, the punishments given are much harsher than the crime committed. When a person is incarcerated, they are made to live in the prison with other criminals, and even if they have an innocent mind going in, their mentality and way of thinking changes after being in the company of criminals. When they comes out, they are already a criminal in the eyes of the society. They find hard to earn a living and they have to regularly report to the authorities. Their history makes their life difficult and if any crime takes place in their surroundings; they are the first to be questioned or thrown inside the prison by the police.
The Indian constitution guarantees its citizens fundamental rights, therefore the court presumes undertrials as innocent until proven guilty. During incarceration, often they are victims of psychological and physical torture. They are subjected to exposed poor living conditions and prison violence.
Many lose their family, neighbourhood and community ties and their livelihoods also. Further, prison time attaches social stigma to them in the eyes of the community members. Even their families, relatives and friends are susceptible to disgrace and humiliation. Even after their acquittal, undertrials find their employment prospects severely jeopardized.
The Supreme Court of India have said that prisoner is a human being; a natural person and also a legal person. After incarceration, a prisoner he does lose his status as a human being, natural person or legal person.
Shedding light on prison conditions in India
As per the Prison Statistics India (PSI) 2018 report; 1,845 inmates died in custody in 2018, the highest in Indian prisons in the last 20 years. In 2018, the percentage of undertrial prisoners in India was almost 70% of the total number of those imprisoned. The number of undertrials have increased by 25.4% in the last ten years. In 2018, the average occupancy rate of prisons was 117.6%. However, these numbers vary from state tot state.
The vulnerable groups suffer the most. In 2018, there were 19,242 women prisoners, 5,168 foreign national prisoners (apart from those confined in detention centers); and 6,623 suffering from mental illness. The report did not include any statistics about transgender prisoners and disabled persons. Further, the prison administration is overburdened with a 30% staff shortage. The inmate to medical staff ratio is 243:1. This is a cause of the high number of custodial deaths in 2018.
The marginalized groups face the brunt of discriminatory enforcement of people in power. Members of the scheduled tribes are nearly half as much more likely to be in prison; than their share of the population. Muslims are 36.6 per cent more likely to be in prison at the undertrial phase; and this reduces to about 10 per cent among the convict population. Dalits are 28.9 per cent more likely to be in prison.
Rights of Prisoners
Article 21 of the Constitution talks about the Protection of life and personal liberty. It has two parts- right to life and right to personal liberty. Right to live does not mean mere animal existence but it means right to live with human dignity. Right to personal liberty means to enjoy the life with all the basic necessities for the development of human beings. It includes the right to speedy trial. In the case of Hussainara Khatoon v State of Bihar 1979 SC; Apex Court held that right to speedy trial is explicitly stated as a fundamental right under the American Constitution; but under the Indian Constitution it is implicit under Article 21 as an implicit right. Moreover, the essence of the criminal justice system is always a speedy and fair trial.
In the case of Sunil Batra v Delhi Administration 1980 SC; the Apex court held that there should be periodical visit by the lawyers to check the conditions of the prisoners. Secondly, drop box should be placed in jails so that any grievance should be dropped in the box; that should be opened only by a judicial officer so that they can take action on them. Right to health and medical treatment, Right to speedy trial are also important aspects of Article 21.
Governments are directed to prevent unreasonable delay
The Supreme Court directed the Centre and all State Governments to prevent unreasonable delay in disposal of criminal cases.
Right to free legal aid
A substantial part of the prison population in the country consists of undertrials and those inmates whose trials have yet to commence. Thus, access to court and legal facilities is essential for giving a free and fair trial to these inmates, which is the mandate of Article 21 of the Constitution. The Supreme Court condemns the fact that Session Judges were not appointing counsel for the poor accused in grave cases. The defence should never be refused legal aid of competent counsel. This implies that true and legal papers should be made available to defendant alongwith the service of counsel. – Rachod Mathur Waswa v. State of Gujarat, AIR 1974 SC 1143
Regarding the right of free legal aid, Justice Krishna Iyer declared that “this is the State‘s duty and not Government’s charity”. If, a prisoner is unable to exercise his constitutional and statutory right of appeal including Special Leave to Appeal for want of legal assistance, the court will grant such right to him under Article 142, read with Articles 21 and 39A of the Constitution. The power to assign counsel to the prisoner provided that he does not object to the lawyer named by the court. On the other hand, on implication of it he said that the State which sets the law in motion must pay the lawyer an amount fixed by the court. – MH Hoskot v. State of Maharashtra, (1978) 3 SCC 544 : AIR 1978 SC 1548
To receive copy of the judgement at free of cost
The accused is entitled to be supplied a copy of the judgement of the convicting court. The failure to provide the copy would be violative of Article 21 of the Constitution. – MH Hoskot v. State of Maharashtra, (1978) AIR 1978 SC 1548
Protection against instruments of restraint
Instruments of restraint, such as handcuffs, chains, irons and straitjacket, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. – Rules. 33 and 34 of “Standard Minimum Rules for the Treatment of Prisoners”
The Article 5 of the UDHR, states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Amnesty described torture as “an epidemic that seemed to spread like a cancer”. In October 1983, Amnesty put together a twelve-point plan for the prevention of torture. It told Governments, how they could take steps to prevent the torture of prisoners. Amnesty asked Governments to make torture illegal and to prosecute those found guilty of it. It suggested that places where prisoners are held be visited and examined regularly so that the public knows what goes on.
Right to be released on due date
It is an absolute right that all the prisoners shall be released from prison on the completion of their sentence. It is the duty of the prison staff to notify the releasing date of every prisoner in the register to be maintained by Jailer. If, any formality is needed to be done for releasing purpose, should be completed before the releasing date.
Right to higher education
The Supreme Court directed the State Government to see within the framework of the Jail Rules; that the appellant is assigned work not of a monotonous, mechanical, intellectual or like type mixed a title manual labour…” and said that the facilities of liaison through correspondence course; should be extended to inmates who are desirous of taking up advanced studies; and woman prisoners should be provided training in tailoring, doll-making and embroidery. The prisoners who are well educated; should be engaged in some mental-cum-manual productive work. – Mohammad Giasuddin v State of AP, AIR 1977 SC 1926
Right to reasonable wages for work
For the first time in 1977, the Apex Court held that the unpaid work is bonded labour and humiliating. The court expressed its displeasure on this issue. Surprisingly, even after two decades in spite of, all discussions regarding correction and rehabilitation in the country; the A.P Government has yet to frame rules for the payment of wage to the prisoners. It was held that some wages must be paid as remuneration to the prisoner; such rate should be reasonable and not trivial at any cost. – Mohammad Giasuddin v. State of AP, AIR 1977 SC 1926
Guidelines For Women Convicts, Juveniles And Pregnant Women or Women With Children Inside Prisons
Right to female guard for female security
The Hon’ble Supreme Court has given detailed instructions to the concerned authority for providing security and safety in police lock-up and particularly woman suspects. Female suspects should be kept in a separate lock-up and not in the same in which male accused are detained and should be guarded by female constables. And also directed the IG Prison and State Boards of Legal Aid Advice Committee to provide legal assistance to the poor and indigent accused (male or female) whether they are undertrial or convicted prisoners. – Sheela Barse v. State of Maharashtra, AIR 1983 SC 378
Rights to pregnant prisoners
The Hon’ble Supreme Court directed that before sending a pregnant woman to a jail; the concern authorities must ensure that jail in question has the basic minimum facilities for delivery of child; as well as for providing pre-natal and post natal care for both, the mother and the child. As far as possible and provided the woman prisoner has a suitable option; arrangements for temporary release/parole (or suspended sentence in case of minor and casual offender); should be made to enable an expectant prisoner to have her delivery outside the prison. Only exceptional cases causality constituting high security risk or cases of equivalent grave descriptions can be denied this facility. – RD Upadhyay v. State of AP, AIR 2006 SC 1946
Rights to child of women prisoners
Although educational programmes are reported to be running for children in some jails; they have not been able to fulfil the requirements of children from different age-groups. By way of recreational facilities, only playgrounds were available in jails. Since the playgrounds can be utilised by only grownup children; there is clearly a need to provide different types of recreational programmes; which can cater to the recreational needs of children of different age-groups. The mother prisoners have mixed perceptions regarding the health care, educational, recreational and other programmes for their children.
While most of them expressed their unhappiness regarding health care, recreational and other facilities (religious) for the children; they were generally satisfied with the educational programmes. Despite their dissatisfaction in certain areas; most mother prisoners are inclined to believe that these programmes are beneficial to their children. – Status of Children of Women Prisoners In Indian Jails . A research note, Women’s Link, Vol.6, No 2, April-June 2000 and First Periodical Report of India on CRC, 2001, p 297-298
The Supreme Court has issued directions; for the development of the children languishing in jail with their undertrial prisoner or convicted mothers. These children are languishing for none of their fault, but per force, have to stay in jail with their mothers; due to tender age or no 76 one is available at home, in their absence to take care of them. – RD Upadhyay v State of AP, AIR 2006 SC 1946
Treatment of Prisoners In COVID Times
As prisons in India have extremely poor facilities, it is a moral duty on the part of the authorities; to take care of prisoners and undertrials while they enjoy the comforts in their homes with hygiene and sanitation. Coronavirus is a deadly pandemic which can spread in a deadly manner in prison complexes. Nearly 10 % of Tihar’s population is HIV positive; which is a worrying sign as to how this disease can affect them.
The Supreme Court in March directed all states and Union Territories to set up high-level committees; for determining the class of prisoners for release on parole for four to six weeks; to avoid overcrowding in jails for protection against the spread of the pandemic.
Chief Justice of India, S.A. Bobde said to give parole to prisoners; convicted of or charged with offences having jail term of up to seven years to decongest jails.
Prison is not only a place for detention or punishment. The authorities must work to make it a place for reformation. The mental health of prisoners is very important. Prisoners should not be left to feel secluded and feel spiteful and malicious. The prison clinics and hospitals should function effectively. The implementation of the system of rewards and punishments is necessary. Rewards like early release are an option. Punishments for failure to do work or breaking rules should apply. The sexual life of prisoners also needs attention. The authorities should allow short visits to homes for the same. The authorities should pay them fair wages for the work they do. Education of young offenders is also necessary.
The courts should properly use punishments like indeterminate sentence, probation and directions for parole. The prison authorities should follow the orders of the court in a moral and honest way; with the aim of reformation of the prisoners. All departments should work in unity to ensure the welfare of prisoners.
General public should co-operate with the court and the police; to not only bring the real offenders to justice but to reform the offenders. Public should change their approach to the criminals and have a sense of responsibility towards crime problem. They should feel sympathy towards the criminals who are the victims of their unfortunate circumstances.