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Wednesday, September 16, 2009

Arresting the problem: Towards prison reform in India

India’s prisons and other detention facilities continue to be plagued with myriad problems: severe overcrowding, understaffing, lack of adequate medical care, physical mistreatment of prisoners including custodial deaths, lack of accommodation for issues related to female and juvenile detainees, poor administration and inadequate interagency communication, long detention of those awaiting trial, and inadequate opportunities for prisoners to communicate with counsel, administrators and family, among other problems.

The most recent report from the National Crime Records Bureau, within the Ministry of Home Affairs, indicates that a large majority of states house more prisoners than the jails were meant to hold. Prisons in Delhi, Gujarat and Chhattisgarh operate at or above 200 percent of capacity, and undertrials (those held while awaiting trial) account for two-thirds of prisoners across the nation. Tales of undertrials spending more time in prison than they would have received if convicted are common, and stories of those who spend decades locked up for minor offenses, of which they have not been found guilty, are not uncommon either.

National and international standards

These problems have long been recognized, as has the need to replace the antiquated Prisons Act of 1894, which still substantially governs how the prison systems are run in the various states despite being enacted more than a century ago during British rule. Numerous Supreme Court decisions and national committee reports rendered over several decades have recognized constitutional guarantees of due process for all citizens and have called for sweeping reforms that protect the fundamental rights to life and liberty for all citizens, even those behind bars. Famously, in 1980, the All India Committee on Jail Reform (known as the Mulla Committee for its chairman, Justice A.N. Mulla) studied the problems and made 658 separate recommendations related to prison reforms, including a call for uniform national prison standards, the reformation of the criminal justice system, and the construction of new and adequate housing facilities, including separate facilities for women and juveniles. Unfortunately, the Central Government and the Supreme Court have left it to the states to implement its directives, and the states have proceeded slowly, if at all, in meeting their legal obligations. Frequently, individual state recommendations simply die on the vine without any attempt to implement them.

Similarly, India is a party to many international conventions and guidelines, which obligate it to provide a progressive prison management system that recognizes universal human rights including the right to humane, responsible treatment for those behind bars. Chief among these are the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Standard Minimum Rules for the Treatment of Prisoners, which provide guidelines for everything from personal hygiene, clothing and bedding, food, medical services, to discipline and punishment, instruments of restraint, and religion. The Standard Minimum Rules also has specific guidelines that apply to special categories of prisoners, such as those with mental disabilities, those who have not yet been convicted, and civil prisoners.

As with the national directives of the Supreme Court and others, India’s international obligations regarding prison reforms are many, but its successes in meeting these demands to date are few. However, some recent state initiatives have commenced, which, if they come to fruition, would bring at least parts of the country in line with its agreements.

New reform initiatives

In 1998, the Home Ministry circulated a draft Bill to the states, a few of which have come out with new legislation. Rajasthan was one such state, which incorporated a chapter on the Rights and Duties of Prisoners in its Rajasthan Prisons Act, 2001. In Madhya Pradesh attempts are being made to achieve 100% literacy among prisoners in some select prisons.

In 2005, the Bureau of Police Research and Development engaged prison officials, academics, and prison experts in drafting a Model National Prison Manual. Some of the most important recommendations of the manual include the creation of new bodies including a department of prisons and correctional services, and a full time national commission on prisons; using alternatives to imprisonment; a renewing the focus on prisoner rehabilitation; reducing the prison population; and modernizing the prisons themselves. Now complete, the Manual is being shared with the states and various NGOs working in the area of prisons and prisoner rights.

In 2006, the Indian government adopted a system of plea-bargaining, granting prosecutors discretion in allowing defendants to plead guilty in return for lesser charges or shorter prison terms. Government projections indicate that approximately 50,000 undertrials will benefit from the plea bargain system.

Other national reform initiatives have also been announced recently. According to a 2008 article by the Times of India, “Under a Rs 4,000-crore national policy, which redefines prisons as "correctional homes", the government is set to shift prisons outside city limits and put the vacated land to commercial use. The money coming in from the sale of land could be used as a state's one-fourth contribution towards building swanky premises to house convicts and undertrials away from cities.” Plans appear to suggest that these new prison facilities would conform to international standards and ease some of the overcrowding present in the current jails.

New national intentions aside, the Central Government has left much of the heavy lifting to the states to implement reforms of their prison systems individually. No national reform movement is likely to succeed without one or more states stepping forward with a genuine effort to overhaul its prison administration. Fortunately, some positive steps are being taken in this regard. Various state initiatives have recently been undertaken to attempt to replace the outmoded Prison Act with updated legislation more in line with the All India Commission recommendations.

The Government in Uttar Pradesh announced last year that it had begun drafting the Uttar Pradesh Prison and Correctional Services Act by studying prison manuals from England and elsewhere. The new legislation is meant to replace the outmoded 1894 Prisons Act. A senior member of the drafting team was reported in The Indian Express as saying, “The application of the old law in the new socio-political scenario is bizarre and out of sync. Hence, a new law is the need of the hour.”

A similar effort to find a modern substitute to the Prisons Act is underway in Punjab, which has undertaken other reforms as well, including recognizing the importance of conjugal visits to beginning the construction of five new jails that collectively will contain a 50-bed hospital, educational facilities, a sewage treatment plant, workshops, and equipment for video conferencing.

Other states, Bihar among them, have recently announced new committees tasked with studying the issues confronting their prison systems indicating, at the very least, recognition of the need to implement changes.

Whether any of these latest attempts to reform India’s prison system will truly be effective remains an open question. Clearly, several have progressed beyond the investigating, studying and talking stages, where so many former good intentions have simply faded away.


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