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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)
In recent years, carbon dioxide emissions have nearly doubled, sea
levels are rising, ice sheets are shrinking and the planet is getting hotter.
Whether certain leaders of the world believe in climate change or not, it is
something which is undeniably taking place because we can all feel the effects
and repercussions of it, be it the shrinking island of Japan or the ever
reducing number of animal species. Majority of scientists around the globe have
confirmed that human activity is not only an aggravating factor but is also the
cause of most of the climate change. In the present times, a situation of
urgency has arisen after predictions that the Arctic cover will melt in a few
decades. Therefore, it is a vital responsibility for governments as well as the
legal systems to ensure prevention and mitigation by all means.
Unfortunately, in India, environmental laws and rules governing
climate change are not only decades old and outdated but they also fail to
address the urgency of the situation in which we are today. While there is no
scarcity of legislations, ranging from the Environmental (Protection) Act, 1986
to the Water and Air Acts, these rules and regulations majorly fail to be
effective. A major reason for their failure is that the boards and authorities
established under these acts to work as enforcement agencies lack
accountability and implementation. Many a times, giant corporations get away
with causing pollution and offences listed in these acts by paying a few fines
which are only worth a penny for them. Even though India is a signatory to
various environmental resolutions and has also ratified the UN framework
convention on Climate Change in 1993 and the Kyoto Protocol in 2002, there has
still been very less enforcement considering that it’s a dualist nation.
Another major reason is the lack of political will and lack of awareness among
the citizens, which in turn fails to create the much needed political pressure.
The country’s climate policy is also outdated, as the last one was formulated
in 2008, a decade back. The ‘National Action Plan on Climate Change’ which was
then formulated has evidently not been successful as most of the goals listed
therein have not been achieved, such as the integration of climate laws and
reporting of greenhouse gases (GHGs).
Hence, now the need arises for the courts and tribunals to take
all measures for prevention and mitigation, so as to ensure the safety and
well-being of citizens. As Justice D.Y. Chandrachud mentioned in his recent
speech, there is a need for the courts to devise solutions instead of waiting
for the parliament and this is exactly what India needs. It has unquestionably
become an issue of fundamental rights of the people and the right to life
guaranteed by Article 21 of the constitution, so the tribunals must seek to
protect the same. Therefore, in order for the judiciary to eliminate the causes
of climate change, there is a requirement of creative interpretation of laws as
against a strict and literal interpretation which hinders progress and
advancement. Doing this would not only benefit the community but also reiterate
the essence and objective behind the legislation. Therefore, there is a dire
need to interpret all legislation in an environmentally friendly way while
keeping in mind the long-term consequences of such judgments, since it is a
common law jurisdiction and precedents also play an important role.
In order to truly achieve environmental justice, the courts will
have to take up an active role in creative interpretation so as to restrain
harmful corporate projects and practices and also formulate guidelines through
judicial activism. The ‘precautionary’ and ‘polluter pays’ principle along with
the ideals of sustainability must always be kept in mind, so as to protect the
right to life of future generations as well. It is unfortunate that in the case
of Ridhima Pandey v. Union of India [O.A. No. 187/2017], the petition filed in
the National Green Tribunal by a nine year old girl alleging inaction on
climate change by the government based on the doctrine of public trust on
behalf of all children and future generations was recently disposed of as the
court believed that “climate change is covered” in existing laws. It must be
remembered that based on the doctrine of public trust, the state is the trustee
of all natural resources for the benefit of citizens. Furthermore, a severe
adoption of absolute and strict liability principles along with correlating the
measure of compensation to the size of the enterprise will also have to be
adhered to. It is also vital that environmental justice can no longer be
limited to environmental cases and tribunals, and must extend to every decision
ranging from matters of land like the Aarey forests of Maharashtra to
commercial development matters.
Another aspect which affects interpretation is the polarity
between economy and the climate, as unfortunately economic agendas act as
powerful hindering forces for environmentally sound decisions. However, it is
now high time to think about the future stakeholders considering the fact that
a good economy will do no good if most of the population is unable to afford
even clean air.
In conclusion, in order to give way to creative interpretation,
there is a need to learn new meanings of old concepts, take up a proactive role
with a liberal approach for suo-motu powers and also move towards
scientifically driven and sustainable decisions and judgments. If the same does
not materialize, then the citizens of this country would not have a future, let
alone the future generations to come.
In the present times, there is a lot of controversy with regards to the religious rights of women, with special reference to the Sabarimala temple case. As should happen with every controversy, this issue needs to be talked about and discussed in detail in order to formulate a holistic policy on the same, which is beneficial to every stakeholder.
In order to hold successful deliberations on the issue of women’s religious rights, there is a need to focus on numerous aspects apart from the right to enter places of worship and entering temples during the period of menstruation. Since India is indeed a country of diverse religions, the rights thereby originating from these religions are also diverse and manifold. A very important area of focus relates to inheritance and succession rights since they are closely intertwined with religion. The nature of religious freedom that women enjoy, not only on paper but also in practice also needs to be considered. This includes the right to follow, convert as well as not to follow a particular religion. Hence, the laws in relation to conversion also need to be referred for this discussion.
Another very important area that requires focus is exploring women’s right of religion with relation to marriage. While some religious rules prohibit women to practice a different religion than that of the husband, others rules necessitate the conversion of women to the religion of that of the husband in order to hold a successful marriage. This in turn raises a question about the religious identity of a woman in a marriage and the level of independence that she has to choose and practice her choice of customs and celebrations as different from her husband. Interestingly, conversion of a spouse to another religion is also a valid ground for divorce in many cases and what happens is that the woman is left with little or no maintenance just because she chose to follow a different religion or not to practice the religion followed by her husband in the case. Another interesting but disturbing element is that according to certain laws, the religion of a child is always assumed to be of his/her father and not of the mother. Therefore, such aspects are reflective of the patriarchal nature of the institution of religious marriage in India and how it favours the husband over the wife.
Furthermore, there is also a need to focus on the balance between religious rules as well as decisions taken by religious councils and laws and regulations that are not necessarily backed by religion but are nevertheless good for society and good for the cause of promoting religious rights of women. Hence, this involves the much dreaded question of moving forward and distinct from strict religious interpretations of religious rights for the empowerment and advancement of women.
In conclusion, in order to materialize the aforementioned discussion, politicians and other organisations need to build a base for tolerance in the nation and they need to figure out how to do that. There is also a need to eliminate the causes and practices which hinder the religious freedom of women in the country, so that we can truly achieve gender equality in the sphere of religion. Also, as it has repeatedly been suggested by courts, tribunals and law commissions along with the international community itself, the nation also needs to work on the integration and promotion of uniformity in religious laws for the benefit of women and children.
In future, the true ideals of women’s religious rights and freedoms can only be achieved if political parties and leaders come together with other organisations and institutions working for the advancement of women’s rights in order to reach a consensus for the benefit of all women who are the stakeholders in this case.
It was in 1891, during the times of immense struggle and hardship, when for the first time an Indian subject was charged with the draconian law of sedition. Jogendra Chandra Bose, the editor of a newspaper was pulled up by the then colonial government for criticising a bill introduced by the British Crown. Undeniably, this authoritarian law was used as an instrument to ingrain fear and terror in the minds of subjects and keep a tight rein on the activities of freedom fighters in order to further the British dominance agenda.
It is pertinent to note that the persons who were charged with this law during the pre-independence era are still remembered and celebrated today as the spirited freedom fighters who were not afraid of rising against injustice and dominance. In fact, Bal Gangadhar Tilak was charged by the offence twice and spent a total of six years of imprisonment for his articles in the Kesari. Believe it or not, but Mahatma Gandhi himself was also charged with this tyrannical crime. In 1922, Gandhi was taken to court for his articles of criticism in Young India magazine where he was extremely aversive to the idea of this law, and strongly denounced it by observing the following: “Section 124A under which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen.”
It is quite unfortunate that even decades after India gained independence, this illiberal law not only continues to exist but also thrives. In the recent times, we have seen some of the most absurd cases of sedition. The owner of a school got arrested for displaying a wrong map of Jammu and Kashmir, Divya Ramya got charged for it for tweeting that “Pakistan is not hell. People there are like us,” while the JNU row is a whole other story. Surprisingly, ABVP (Akhil Bharatiya Vidyarthi Parishad), the student wing of the BJP, even went ahead and filed an FIR for sedition against Amnesty International, a world renowned human rights organisation which has done immense work to promote the rights of the Indian citizens.
Another term which is doing the rounds is ‘anti-national’ which is repeatedly used to describe the persons charged with this law. Unfortunately, what the many users of this term are forgetting is the fact that there is a clear difference between being critical of the government and being against the nation. There is a dire need to understand that criticism is the biggest virtue which leads the nation into progress and advancement. Perhaps the remedy for the excessive and unrestrained usage of this expression may be another term called ‘tolerance’ and the much useful practice of ‘agreeing to disagree.’
An extremely important question that now arises, nearly a century and a few decades after the introduction of this law, is that what is the need of this law in the present times and why has it still not been repealed? Ironically, recent actions of the government with regards to Article 370 of the constitution indicate that the Modi regime is much keen on repealing ages old laws which seemingly have no requirement in today’s “new” India. It is indeed a perplexing situation in which one wonders why the statistics suggest a rampant increase in cases of sedition in the last few years. The joke that is going around is that in India, you can get arrested for liking a facebook post and even writing a blog (Hey there, CBI).
Interestingly, the makers of the constitution of India discussed the issue of sedition at length and various debates were carried out after which the word was dropped. However, it still remained a part of the Indian Penal Code which was originally drafted by the British. The law was opposed by the majority of the leaders of the newly independent Indian state as also many of them had suffered imprisonment under the same law by the British. Jawaharlal Nehru, India’s first Prime Minister, went on to say the following: “Take again Section 124-A of the Indian Penal Code. Now so far as I am concerned that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.” However, unfortunately, it still remains as a tool in the hands of the government which is repeatedly used to shut down voices of criticism and freedom while various other countries including the United Kingdom have already done away with it.
Today, the law is misused to exercise blatant abuse of power and is a bane for the freedom of expression of the citizens. Once charged with it, the accused loses his passport, is labelled and mocked by society and has to bear the high cost of litigation to defend himself.
I consider it a privilege, therefore, to be charged under that section.
MAHATMA GANDHI
We, at Humans for Change, would very much like to know your opinion on this matter, so go ahead and leave a comment so that we can discuss this with you!
The new Motor Vehicles act is finally here and we are all for it. The amended bill which was tabled in 2016 has finally been given assent by the President and was brought in force earlier this month. The amendments to this bill have been well written and are quite progressive in nature.
The policy makers have been diligent to keep in check the amount of penalties in consonance with the current time which was not the case a decade ago, for example, a violation of not wearing a seat belt or of not wearing a helmet on a two wheeler resulted in a penalty of 100 rupees before but now the penalty has been bumped up to a 1000 rupees. Other stricter violations such as driving without a license or driving despite disqualification whose penalty had needed to be amended severely have also been raised to 5,000 and 10,000 rupees respectively.
The bill has seen to do justice to grave offences under certain provisions like drinking and driving which now has a penalty of 10,000 rupees and/or imprisonment upto 6 months for first time offenders but for second time offenders the fine goes to 15,000 rupees and/or imprisonment up to 2 years.
One of the primary areas where the bill is said to concentrate on is for developing stricter laws especially for the underage demographic i.e juvenile offences such as driving or drinking and driving which has held the guardian to be liable for a fine of 25,000 rupees with a 3 year jail time and simultaneously leads to cancellation of the Motor Vehicle’s Registration.
It is seen that new expressions and terms have also been included in the amendment,like,terms such as the “golden hour.”
Golden hour has been designated as that one hour right after the accident takes place which is said to be very critical for the life of the victim.
The act has also encouraged the citizens to give a helping hand to victims of road accidents by providing for the rules of Good Samaritan in the bill which certainly has helped the bill to be protective about the people who volunteer to get involved in the process.
Another expression which has been and was needed to be incorporated is the “aggregator” which is a digital intermediary or marketplace for a passenger to connect with a driver for the purpose of transportation. The set principles of such intermediaries by which they needed to be governed are also included in the bill.
The bill has tried to draw attention to the hazards of climate change thereby also reducing corruption in the transport department by providing for automated fitness testing of the vehicles.The testing agencies issuing automobile approvals have been brought under the ambit of the Act and standards will be set for motor vehicle testing institutes.
Therefore,it can be concluded that the bill has been amended with a comprehensive approach and to all its entirety. The significant bumps which were needed to be made in the penalties/fines are believed to encourage people to become less reckless and rather alert while travelling on the road.
The new definitions and terms which have been introduced are well put but lack a bit of clarity which might hinder the implementation of the amended act,like,the bill has provided for a National Road Safety Board which has to be created by a notification by the central government but it is yet to clarify its functions and its functioning.
But something which needs to be put under heavy observation is that implementation of such fines come through and should not result in people merely bypassing them by paying a meagre amount to the cops which would impede the growth that has been intended with this bill and would defeat the purpose of the amendment.
Humans for Change 