Month: Nov 2019

Analysis, Policy

Prison Reforms in India – Part I

dhritichhabra

Abstract 

India is one of the largest and also the most crowded prison systems in the world, which inherently involves various institutional challenges as well as hardships for its administration. This paper aims to explore the conditions of prisons in India with a special emphasis to reformatory action taken by the legislation as well as the judiciary. While doing so, the historical situation of prisons along with a history of the reforms undertaken is also discussed along with international obligations, jus gentium and jus civile. The paper also throws light on the various challenges as well as the future outlook towards the issue. Ultimately, the proposition for the need to introduce better and improved prison reforms in the country is stressed upon, which will in turn improve the humanitarian situation of the inmates in general. 

Introduction

The situation of prisons and the condition of their inmates is an extremely essential issue for the well-functioning of any humanitarian society. The notion that prisons are mere dingy underground cells that house dangerous murderers and should be left at their fate is extremely ill-fitted in today’s world where prisons not only house social deviants who need rehabilitation and our support but also innocent victims of false prosecutions whose cases linger in the court for years but they are not able to secure a bail because of the cognizable nature of the charge against them. Unlike the draconian times, the society needs to realise that the inmates of today need rehabilitation and not torture. They require our support and not hate. Hence, instead of using inhumane correction mechanisms imposed by severe punishment, the modern society today is moving towards constructive development and humanitarian rehabilitation of prisoners. 

In India, the National Crime Records Bureau (NCRB), Ministry of Home Affairs, Government of India has given the following definition of a prison:

‘Any place used permanently or temporarily under the general or special orders of a State government for the detention of prisoners, under Section 417 of the Code of Criminal Procedure, 1973 and includes all land and buildings thereto, but does not include: (a) Any place for the confinement of prisoners who are exclusively in the custody of the police, (b) Any place specially appointed by the State government under Section 541 of the Code of Criminal Procedure, 1882 (10 of 1882).’

According to the statistics last published in the year 2015 by the NCRB, there are a total of 1,401 jails in the country, out of which there are 134  central jails and 18 jails exclusively for women as well. It is interesting to note that while the total capacity of these jails is 3,66,781, they anyway house a total of a whopping 4,19,623 prisoners and inmates which is way more than the actual capacity leading to a 15 percent higher occupancy rate than the actually available capacity. It is also worth noting that out of the total inmates (95.7% male and 4.3% females) only 32% are actual convicts and the majority chunk of 67.2% are merely undertrials. 

Unfortunately, only a total number of 416 convicts were provided with financial assistance on release and only 1286 convicts were rehabilitated in the year 2015. Moreover, the average earning per inmate was reported to be 4811.4 rupees only in the same year. Hence, these statistics clearly suggest that there is a need for further reform, apart from the reforms which have already been carried out.

In India, the management of prisons falls exclusively under the domain of the state government, as per the seventh schedule of the constitution. In every state, the prison administrative machinery works under the chief of prisons who is a senior ranking IPS officer. Basically, Indian prisons face three long-standing structural constraints: overcrowding, because of the high percentage of undertrial inmates in the prisons, understaffing as well as  underfunding. Therefore, the inevitable outcome of the aforementioned problems is more problems including subhuman living conditions, poor hygiene, and violent clashes between the inmates and jail authorities. 

The Historical Situations of Prisons and History of Reforms 

In the earlier times, the original purpose of prisons was not to confine a person for deterrence from crime or seperate the social deviants from rest of the citizens. The purpose was merely to keep the perpetrator of a crime detained until the actual punishment could be carried out, which was usually in the form of corporal punishment that was intended to cause the guilty person pain, such as being beaten with a whip, or capital punishment which used a variety of methods to claim the lives of condemned individuals.

However, it is interesting to note that the archaeological record of the Indus Civilization has provided no evidence of prisons in any form whatsoever, but then we also don’t have evidence of armies and kings since a more egalitarian system of governance was practiced during that time. 

Furthermore, the administration of justice during the vedic period in the territory of the Indian Peninsula was not a prominent duty of the state, and crimes were merely treated as torts. However, there has been no mention of prisons or jails. In fact, the house of the accused served the purpose of a jail and he or she was practically imprisoned in his own house till he or she managed to compensate the plaintiff. Surprisingly, though punishment was considered to be of great social and religious significance since the vedic period and even earlier, the concept of imprisonment as a form of punishment was found to be absent. The Dharmasutras as well as the Dharmashastras rarely mention the word ‘prison’ or ‘jail’ or ‘jailor’ or anything even corresponding to it.

The earliest reference to a regular prison is found in Kautilya’s Arthashastra, in which forced labour in mines amounted to imprisonment and a punishment of one of the severest kinds. 

Further, during the course of King Ashoka’s reign, he is said to have maintained in his unreformed early years a prison in which the most fiendish tortures were inflicted, and from which no prisoner came out alive. However, in the later period of his rule, many reformatory measures were taken by him. One measure was that he introduced the concept of regular visits to the prisoners which was to be made by the authorities once a day to enquire about their welfare. Specific emphasis was laid on their health, living condition and work. There were strict rules which were to be followed by the officers of the jail. There was also punishment for those who were charged with ill-treatment of prisoners and violation of rule of law. Also, male and female prisoners were kept in different wards. In the Fifth Rock Edict, the inscriptions of Ashoka, it has been found that grant of amnesty and release of prisoners was also offered on certain auspicious occasions such as the King’s birthday or the night of a full moon. 

Subsequently, with the advents of the Mughal Era and even under the Moghul laws, imprisonment was not encouraged. It was mostly just used as a means of detention of the undertrial prisoners inside specific fortresses which were situated in different and remote parts. The qazis were supposed to visit the prisoners, enquire into the conditions and release those who showed signs of repentance. Also, sometimes their release was also ordered on special occasions, for example, as King Akbar so ordered on the birth of his son and Prince Salim. 

Even in the Maratha period, the same pattern was followed. However, certain reforms were introduced such as providing them with the opportunity to visit their respective homes for religious rites. They were also released on the ground of health and political prisoners were well treated with respect. 

Thereafter, the advent of the East India Company and eventually the British Empire led to the birth of the modern prison administration and brought about various guidelines and regulations. Various Regulating Acts were introduced organisation and systematic approach which also established courts. Basically, the English rule of law was also made applicable to its Indian subjects. The then newly introduced Indian Penal Code defined each and every offence and prescribed punishment for it while the Criminal Procedure Code laid down the procedure for investigation of crime and prosecution of the criminals. Consequently, a movement for prison reforms had also started in Great Britain and effective measures to introduce elements of decency and humane administration were initiated. Before the 19th century, the condition of the prisons was very bad and they remained unventilated, overly crowded and were frequently prone to numerous epidemics. There was no segregation of the youth from the elderly, the convicts from the undertrials and even the female from the male. Unfortunately, the prisoners were treated as slave-labourers and there was no attempt at improving their living conditions and health and hygiene. Moreover, the company was not interested in spending money for the betterment and welfare of the jails. When efforts for reforms were initiated, a Prison Discipline Committee had been formed which submitted suggestive reforms on the lines of cleanliness, provisions of food and clothing and healthcare. Subsequently, the Prisons Act, along with its frequent amended versions, was also passed which mandated various principles and prison management policies. Various administrative reforms were introduced by the Prison’s Act, 1894 which brought about uniformity in prison administration throughout the country. Prisoners under the age of 21 were separated on the basis of puberty. Further, civil prisoners were also separated from criminal prisoners and the undertrials from the convicts as well. The Medical Officer was mandated to visit the prisons daily. The hours of work of those convicted was also limited to nine. The powers of the subordinate staff to inflict punishment were done away with and the Superintendent alone could do so. Then, the Government of India constituted the Indian Jails Committee in April 1919, which led to aiming towards reformation as well as rehabilitation. Its recommendations included categorisation of prisoners, separate courts for children and juveniles including remand homes for housing as well. It also suggested the introduction of warning, probation and fines. However, these recommendations were not implemented well. The government of india act, 1935 resulted in the transfer of the subject of jails to the control  of provincial governments, which then implemented certain reforms at the local levels. 

After the Independence, the newly constituted Government of India invited the United Nations expert Dr. W.C. Reckless, to undertake a study on prison administration and to suggest policy reform. His report titled ‘Jail Administration in India’ made a plea for transforming jails into reformation centers. He also recommended the revision of outdated jail manuals, after which the government appointed the All India Jail Manual Committee in 1957 to prepare a model prison manual. The committee submitted its report in 1960 and also presented it to the government of India for implementation. The Model Prison Manual (MPM) is the guiding principle on the basis of which the present Indian prison management is governed. In subsequent years, various other committees were set up such as the Mulla Committee and the Krishna Iyer Committee.

*To be continued further in Part – II (Coming Soon)

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Gender Neutrality in Rape.

misssharmaa

-Vidhit Verma

Rape has been considered to be an act usually committed against one sex and the laws in India certainly tilt towards woman rather than protecting every citizen and gender.

Despite expanding the definition of rape under the Indian Penal Code to include non-penile vaginal acts of penetration, the said definition continues to conform to a gender-specific notion of rape, based on a predetermined characterization of the victim-perpetrator framework on the basis of genders. Implicating a binary notion of gender, this results in gross injustice and it therefore, becomes imperative to adopt a human-rights-based approach in defining the offence of rape, and negate the role of gender in identifying the victims and perpetrators of an act of rape, and establish equity.
This argument may be pillared on a state’s obligation to not discriminate on the basis of sex, the recognition of transgender rights, and an assessment of the common grounds for opposing gender neutrality in Indian rape laws.It can be said that crimes against women in India have a lot to do with centuries of patriarchy and a skewed sex ratio.
However, the perpetrators often enjoy impunity at the risk of women’s rights and security.

In 2013, one of the most brutal and fatal gang rapes in New Delhi led to not only massive and supremely angry nation-wide protests, but also led to landmark reforms to the existing rape laws. By taking into account the gender and patriarchal attitudes in Indian society, the new laws reform changed the landscape of justice for women by taking a tough stand on crimes against women. In the aftermath of the Nirbhaya gang-rape and death, the Justice Verma Committee was formed in 2013 to review sexual offence laws.
As a consequence, Indian women can now file a rape charge online. Cops are duty bound to register a case immediately upon complaint. Rape remains the fourth most common crime against Indian women so these changes were necessary, and critical.To see the crime as merely a man violating a woman, as it currently is currently being seen, however, is an injustice to those whose story does not fit this ambit.
There is thus, still a great need for further change to India’s rape laws.

On the same idea, a private members’ bill has been introduced before the Rajya Sabha. This bill would introduce amendments in the criminal laws to make sexual offences gender neutral. Re framed language in sexual offence laws would aim to change ‘any man’ and ‘any woman’ to ‘any person’ – a step forward to make the laws gender neutral. “Men, women, and other genders can be perpetrators and also victims of these offences. Men, women and others need to be protected”. 

In understanding the need for this change being pitched, one must first understand what exactly constitutes rape. International law has evolved from viewing it just as penile-vaginal to penile-orifice and then to penetrative-orifice, all within a non-consensual context. By the last legal definition, the physical violation with blunt objects undergone by Nirbhaya at the hands of her gang rapists would be classified as rape.It would by current Indian legal standards as well.
Yet, for instance, if there were to be such an act committed by a woman against a man or even another woman, it would not amount to rape. To be sure, it would be an assault-based crime of some form, but not rape. This, even though the victim would have been forcefully penetrated in a sexual manner by her assailants.The same result would also come about if the victim were a child, as the law would allow for a charge of sexual assault, but not one of penetrative sexual assault, which is codified as male-only.
Many parliamentarians and some activists argue that only members of one sex can rape and only the other can be raped, for rape is only ever patriarchal. The Indian laws are thus very limited in this regard, bringing to light this shortcoming.
Statistically with regards to the existence of both male and female survivors, the US’s Centers for Disease Control in Atlanta has estimated that 18.3% of American women and 1.4% of American men have experienced rape at some point in their lives. Both percentages are likely to be underestimations due to stigma attached to reporting the crime. Ideally, India would be able to provide its own numbers for statistical comparison.

However, given that rape by legal definition cannot be committed against men, there is no good way of determining just how many male survivors exist in India.Considering the argument that equity in a society is cardinal to its good governance, in addition to those discussed above, such a change and broadening of the definition of rape under Indian laws may also be deemed essential. What also need to be considered is that even though women suffer from such crimes in incomparable numbers, the law cannot turn a blind eye to the victims or the perpetrators of other genders.

In conclusion, the impulse to view the rape narrative as exclusively that of a man violating a woman does an injustice to those whose dismal stories and sufferings simply do not fit the mold that is easiest for us to understand and therefore,an imperative need to redefine norms of the society is felt which would help only if the laws are not made to favor any gender rather to determine the acts that constitute this heinous crime which could be committed against any person.


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My life in a Gas Chamber.

misssharmaa

As a law student I am supposed to write about advocacy and policy. While I believe it to be helpful in my professional life,I also believe that my Co-founder and I created this blog for it to help debate and talk about everything that is wrong with our Indian system and society,especially when people claim it to be in the name of religion.

While I contemplated a lot before writing this article and thinking what good will my article do,I remembered the sole reason for us to come together and put together our entire act into an organisation was to stand up for the things that we believe in. 

Our festivals of lights,Diwali just passed. This festival used to be my favourite festival since I was a kid but the reason why I loved it the most soon became the reason I have started to hate it. A custom of wearing new clothes,praying to our Gods and then the part I could barely wait for every time this festival arrived,the part where we burnt crackers. 

Burning crackers used to be a tradition at my house,everyone used to gather round and celebrate the festival of lights. But the reason why I adored this festival this year became the hazard that I could never fathom for it to be. 

Why is this relevant for me to write about?

This is relevant because people across the city of Delhi-NCR have come up with excuses to justify their actions. 

Everyone was and is aware that the air breathed in these four cities is deemed to be hazardous. And let me elucidate that anything above 100 appearing on your Air Quality Index that you have been checking out since Diwali to decide whether to step out of the house or to let your child play in the park is considered to be unhealthy.

The justifications that I heard for bursting some of the “green crackers” and a whole lot regular crackers were that it is a custom to burn crackers during Diwali and “oh,why do you no say anything to anyone when they burst crackers during New Years and Christmas.” 

Among others there were also some who tried to blame everything else from the public transport system to “What will happen to the manufacturers who produce these crackers?”

Lets answer these questions one by one. Firsty all those people advocating for green crackers and claiming that they cause less harm to the air apparently,are you aware how these crackers are regulated and if they are at all regulated? Let me help you,they aren’t regulated and there is no regulation which is about to be imposed either,and judging by this country’s legislation,please don’t hold your breath. 

The ones claiming that Indians burst crackers on New Years and Christmas and why don’t I put out posts blaming those people. 

Well,for me this is not shifting of blame but realising that crackers are harming our already severely polluted air and if you’re asking me to blame every American,British et cetera citizen throughout the world,have a good look because their air is not as polluted as ours. 

What stunned me the most when people were advocating this argument was how bizarre this argument was and how essentially well law students thought this argument was. This is exactly what we are taught in law school not to do. This is similar to claiming that because the other person committed a crime and got away with it that is essentially why you did it in the first place.

And even after arguing with “these” people that it was not about any other festivals or any other country doing it but about our nation and how we should not do something which would probably put our entire family at risk and worsen the air that we have no choice but to breathe,they still failed to understand anything at all. 

To the people who blamed all the stubble burning after Mister Arvind Kejriwal pleaded the farmers to stop seemed a complete way out for them.

PS:The Government also pleaded you not to burst crackers. 🙂

Let me realistically put this problem to a test by saying that that night of Diwali everyone acted like farmers burning stubble at the same time(which is unlikely because every farmer throughout every state is not likely to burn their stubble every day,hence,the pollution that they were causing over some months you caused that in a day) which caused the Air Quality Index to dip down to 600 which is downright hazardous and also made me witness my little brother having problems breathing and vomiting because of the air quality. My brother is ten years old and I am sure that half of the people who burst crackers that night were among the ones who probably have small children around the age of my brother,let me just tell you that the iota of happiness that you gave your child that night by burning crackers that night for “just their sake” is completely not worth the amount of problems that you caused him/her in the long run and it sure as hell is not your right to make other people’s children,people who were careful and considerate and who witnessed their kid having respiratory problems at a very young age. 

To everyone who says that that was just one night of fun and relaxation,you all certainly did contribute to something big,dipping the air quality index to 600 and jeopardizing the lives of everyone living in the city,making the cities of Delhi and NCR a worldwide headline for people across the Globe to never want to visit the city. 

Something funny that I had seen was the reaction of Indian people over a twitter thread of how Indian people in New Jersey had celebrated Diwali where they left tons of waste on the road. Ironically,Indians living in India were more disgraced with that while being in denial about the massacre of this polluted air that they caused and everyone is breathing today.