Page |1

“PRISON REFORMS IN INDIA”

PROPOSAL MADE BY: SANKET KUMAR(1759)

PROPOSAL SUBMITTED TO: Dr. Fr. Peter Ladis F

FINAL PROJECT SUBMITTED IN TOTAL FULFILMENT FOR THE

COURSE CRIMINAL LAW - II FOR ATTAINING THE DEGREE B. A.
LLB (Hons.)

08th March 2019

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA

NAGAR, MITHAPUR, PATNA, 800001
 Page |2

INTRODUCTION

‘Prisons’ is a state subject under List-II of the 7th Schedule to the Constitution of India. The
management and administration of Prisons falls exclusively in the domain of the State
Governments, and is governed by the Prisons Act, 1894 and the Prison Manuals of the
respective State Governments. Thus, States have the primary role, responsibility and
authority to change the current prison laws, rules and regulations.

Various Committees, Commissions and Groups have been constituted by the State
Governments as well as the Government of India (GoI), from time to time, such as the All
India Prison Reforms Committee (1980) under the Chairmanship of Justice A.N. Mulla
(Retd.), R.K. Kapoor Committee (1986) and Justice Krishna Iyer Committee (1987) to study
and make suggestions for improving the prison conditions and administration, inter alia, with
a view to making them more conducive to the reformation and rehabilitation of prisoners.
These committees made a number of recommendations to improve the conditions of prisons,
prisoners and prison personnel all over the country. In its judgments on various aspects of
prison administration, the Supreme Court of India has laid down three broad principles
regarding imprisonment and custody. Firstly, a person in prison does not become a non-
person; secondly, a person in prison is entitled to all human rights within the limitations of
imprisonment; and, lastly there is no justification for aggravating the suffering already
inherent in the process of incarceration.

AIMS AND OBJECTIVE

The researcher tends to analyse

1. Structure of Prison system in India

2. Rights which are to be possessed by the prisoners.

SOURCES OF DATA COLLECTION

Secondary Sources: Books, newspapers and websites.

LIMITATION OF STUDY

All research projects cost money. Conducting a project like “Prison reforms in India” is an
expensive affair. Lack of resources. Time is always a factor to be considered.
 Page |3

TABLE OF CONTENTS

1. Introduction
2. Historical Background
3. Prison System – A comparative study
4. Judicial Approach towards prison system
5. Conclusion and Suggestion

Bibliography

1. INTRODUCTION
A country which over 40 years ago cast off British rule still administers its system under
the colonial Prisons Act of 1894. Perhaps because the act is such a relic of the past, or
perhaps because prison officials prefer the route of least accountability, the various state
prison manuals that embody the 1894 provisions are collectors' items, not only in short
supply but expensive. A number of prison commissions have attempted to update and
revise the code, but aside from a few states, these efforts have not received legislative
approval. It is not only the rules and regulations but the day to day reality of Indian
prisons which is so archaic.
 Page |4

The Human Right Watch in their paper in 19911 found that the prison sanction (which in
the west grew apace with modernization) has not achieved centrality within India;
incarceration is probably not more extensive now than it was under British rule. Numbers
often give a false sense of precision in India – “give or take a few million,” is a frequent
and appropriate qualifier to any estimate – but they do delineate the boundaries of the
prison world. The most prestigious and thorough investigation of the prisons, the All
India Committee on Jail Reform (under the chairmanship of the retired Supreme Court
justice, Anand Mulla), found 1220 facilities in the country as of December 31, 1980, of
which 822 (67 %) were lockups, and almost all of the others, state prisons; together they
held some 160,000 inmates. The Indian states, it is true, vary enormously in their record-
keeping skills and are notoriously lackadaisical about responding to inquiries from
national commissions. Yet, even if the figure were off by a factor of two or three, India
would still have one of the lowest rates of incarceration in the world. (The United States,
with the highest known rate, has less than one-third of India's population, and
incarcerates more than six times as many people as were actually counted in the Indian
system a decade ago.) This conclusion is buttressed by the fact that with all due
allowance for overcrowding, India does not have the prison buildings to hold that many
more inmates. More, the overall lengths of prison stays are quite short (again by
American standards). Of the 160,000 inmates ten years ago, 92,000 were under trials,
and their periods of confinement while they awaited their turn in court, were almost
always less than a year (92 %). Of the 59,000 inmates already convicted of crimes, 32 %
served less than one year; 16 % one to five years; 8 % five to ten years, and 44% over ten
years.

Thus, the prisons did have a cadre of long-termers, 26,000 in number, but they were a
small fraction (16%) of all persons incarcerated. Third, and perhaps most telling, the
criminal system, as we have seen, relies extensively on summary justice. To the extent
that police (or soldiers) beat or kill putative offenders, imprisonment becomes a
superfluous sanction. If the numbers of inmates is low, it is because punishment is often
meted out in rough and ready fashion. As one would then expect, prisoners are drawn
from the lowest classes, and undoubtedly the lowest castes, although contemporary. The
All India Committee observed that a majority of the inmates came from the
"underprivileged sections of society," noting that "persons who have means and
influence generally manage to remain beyond the reach of the law even if they are
 Page |5

involved in violation of the law. The figures compiled by other investigations confirm
this impression: one study in the state of Uttar Pradesh (a relatively backward region
except for the area around New Delhi), reported that 63% of prisoners were low income
(earning less than 80 rupees, or less than U.S. 5$ a month); only 1.5% earned over 335
rupees or about U.S. 20$ a month. 50% of the UP inmates were illiterate; only 10% had
over 10 years of schooling. Along-with this Physical and psychological torture resulting
from overcrowding, lack of space for segregation of sick, stinking toilets for want of
proper supply of water, lack of proper bedding, restrictions on movement resulting from
shortage of staff, parading of women through men's wards for lack of proper separation,
non-production of under trial prisoners in courts, inadequate medical facilities, neglect in
the grant of parole, rejection of premature release on flimsy grounds, and several such
afflictions has resulted not from any malfeasance of the prison staff but from the
collective neglect of the whole system1 (Human Rights Watch 2001).

The overcrowding, lack of physical and mental activities, poor sanitary facilities, lack of
decent health care, all increase the likelihood of health problems in prisons. Kazi et al
(2009)2. Mentioned that “prisons are excellent venues for infectious disease screening
and intervention, given the conditions of poverty and drug addiction”. It is surprising and
indeed shocking that despite the large prison population in India, there is a complete
dearth of published information regarding the prevalence of health problems in prisons.
An exception is a small study in the Central Jail at Hindalga in the Belgaum (the district
of Karnataka) 850 prisoners were evaluated. Scholars, policymakers, and practitioners
have recently begun to pay serious attention to the issues of prisoners’ re-entry and
reintegration.

The rate of imprisonment in our country was very low57, i.e. only 25 prisoners per one
lakh of population, as we compare with Australia (981 prisoners), England (125
prisoners), USA (616 prisoners) and Russia (690 prisoners) per one lakh population. A
large chunk of prison population is dominated by first offenders (around 90%) The rate
of offenders and recidivists in prison population of Indian jails is (9:1) but in the United
Kingdom, it is 12:1, which is quite revealing and alarming for world.

1
Human Rights Watch Report 2001.
2
International Journal of Infectious Diseases, 14, e60-e66.
 Page |6

As of 2007, the prison population was 3,76,396, as against an official capacity of

277,304, (representing an occupancy rate of 135.7%) distributed across 1276
establishments throughout the country. The prison population has been steadily
increasing during the last decade in our country. A majority of the prison population is
male (nearly 96%) and approximately two-thirds are pre-trial detainees (under trials).

2. HISTORICAL BACKGROUND
During early days punishment for criminal behaviour tended to be public events which
were designed to shame the person and deter others; these included the ducking stools,
the pillories, whipping, branding and the stocks. At that time, the sentences for many
other offences was death. Prison in India has tended to be a place where people were
held before their trial or while awaiting punishments. It was very rarely being used as a
punishment in its own right. In history of Indian prison, then Men and women, boys and
girls, debtors and murderers were all held together in local prisons. This Evidence
suggests that “prisons in India, at ancient period were badly maintained and often
controlled by negligent prison warders”. Many people had died of diseases like gaol
 Page |7

fever, which was a form of typhus3 . The most important innovation of this period was:
to build the prototype house of correction, the London Bridewell.4 Houses of correction
were originally the part of the machinery of the Poor Law, was intended to instil habits
of industry through prison labour. From the prisoners mostly held in them, were petty
offenders, vagrants and the disorderly local poor. In India, by the end of the 17th century
they were absorbed into the prison system under the control of the local Justices of the
Peace.

Although the 18th century has been characterized as the era of the 'Bloody Code' there
was growing opposition to the death penalty for all but the most serious crimes. Such
punishments were the counter-productive, as jurors were refusing to find thieves guilty
of offences which would lead to their execution. By the mid of 18th century
imprisonment, with hard labour, was beginning to been seen as a suitable sanction for
petty offenders. Transportation was a much-used method for disposing of convicted
people for the prison in India. Convicts were shipped to the British colonies such as
America (until the end of the Independence of America in 1776), Australia, and Van
Diemen’s Land. Transportation was curtailed at the end of the 18th century. The two
prominent alternatives were hard labor and for those who unable to do this the house of
correction.

Prison hulks were shipped what were anchored in the Thames, and at Portsmouth and
Plymouth. Those sent to them, were employed there in hard labour during the day and
then loaded, onto the ship at night. The appalling conditions on the hulks especially the
lacks of control and poor physical conditions, eventually led it to the end of this practice.
But the use of the prison hulks in India did much to persuade public opinion that
incarceration, with hard labour, was a viable penalty for crime. In the year of 1777, John
Howard (namesake of the Howard League) condemned the prison system as
disorganized, barbaric and filthy. He called for wide ranging reforms including the
installation of the paid staff, outside inspection, a proper diet and other necessities for
prisoners. Jeremy Bentham, and other penal reformers at that time, believed that the

3
Causes and prevention of violence in prisons. In Sean O’Toole & Simon Eyland (Eds.), Corrections
criminology (pp. 101-108)
4
Hinkle, William G. A History of Bridewell Prison, 1553-1700. Lampeter, 2006
 Page |8

prisoner should suffer a many of regimes, but that should not be detrimental to the
prisoner's health. Penal reformers had also ensured there should be the separation of men
and women and that sanitation to be improved as well. In the year of 1791 Bentham had
designed the 'panopticon'. This prison design allowed a centrally placed observer to
survey all the inmates in the prison, as prison wings radiated out from this central
position. In the year of 1799 the Penitentiary Act specified that prisons should be built
for one inmate per cell and operates on a silent system with continuous labour.

The first half of the 19th century had represented a watershed in the history of the state
punishment. The capital punishment is now regarded as an inappropriate sanction for
many crimes in India. The shaming sanctions such as the stocks what were regarded as
out-dated. By the mid of the 19th century, imprisonment had replaced capital punishment
for most serious offences - except for that of murder. Ideas related to the penal reform
were becoming an increasingly popular thanks to the work of a few energetic reformers.
Many of these ideas and thoughts were related to the rehabilitation for the offenders.
Religious groups like the Quakers and the Evangelicals were highly influential in
promoting such ideas of reformation through personal redemption. The 19th century saw
the initiation of the state prison in India. In the year of 1816, the first national
penitentiary was completed at Millbank in London. It held around 860 prisoners in, kept
in separate cells too, although association with other prisoners was allowed during the
day time. Work in prison was mainly centred around simple tasks such as picking 'coir'
(tarred rope) and weaving. In the year of 1842 Pentonville prison was built using the
panopticon design; this prison is still used today. Pentonville was originally designed to
hold around 520 prisoners, each held in a cell measuring of 13 feet long, 7 feet wide and
9 feet high. Pentonville was operating the separate system, which was basically solitary
confinement. In the next 6 years, 54 new prisons were built using the same template. The
prisons were brought under the control of the Prison Commission in 1877. For the first
time all even local prisons also were controlled centrally. At this time in India, the
prisons were seen primarily as the means to deter the offending and reoffending. This
was the movement away from the reforming ideals of the past in India. The Prison Act in
1898 reasserted for the reformation for the main problem of prison regimes. This Act can
be seen to set the penal-welfare context which underlies today’s prison policy. It led to a
dilution of the separate system, the abolition of hard labour, and established the ideas that
 Page |9

the prison labours should be more productive, not least for the prisoners, who should be
able to earn their livelihood on release.

The developments of the prison systems are continued today. At the end of the 19th
century there was recognition that the young people in India should have separate prison
establishments – thus the borstal system was introduced for the Prevention of Crime Act
1908. The English Prison and Borstal Systems: An Account of the Prison and Borstal by
Borstal training has been involved in a regime that was based on the hard physical work,
technical and educational instruction and strong moral atmospheres. A young person in
borstal: would work through the series of grades, based on privileges, until release. In the
year of 1933, the first open prison was built at New Hall Camp near Wakefield. The
theory behind the open prison is summed up in the words of one penal reformer, Sir Alex
Paterson: "You cannot train a man for freedom under conditions of captivity". The
Criminal Justice Acts in 1940 was abolished penal servitude, hard labour and flogging.
This acts also presented the comprehensive systems for the punishment and treatment of
offenders. Prison was still at the centre of the govt. system, but the institutions took many
different forms such as detention centres and borstal institutions including as remand
centres. In April 1993, the Prison Services became an Agency of the Indian government.
This new status allows us for a greater autonomy in operational matters, while the
government retains the overall policy direction for the prison system. The 1990s have
also been seen that the introduction of prisons and prison system what are designed for,
financed, built and run by private companies. Supporters of privatization argue that it
will lead to cheaper, more innovative prisons, while organizations like the Howard
League argue that private prisons are flawed both in principle and in practice.

3. PRISON SYSTEM – A COMPARATIVE STUDY

PRISON SYSTEM IN BRITISH AGE
In India, the early prisons were only places of detention where an offender was detained
until trial & judgment and the execution of the latter. In the year of 1784 the British
Parliament empowered the East India Company to rule India and from then some
attempts have been made to introduce reformations in the administration of Law and
Justice in our country. At that time there were only 143 civil jails, 75 criminal jails and
with less number as 68 were mixed jails. In fact these jails were an extension Mughal
rule which were managed by the personnel of the East India Company in their efforts to
 P a g e | 10

maintain peace and establish their trades. As Dr. BK Bhattacharya has very aptly
observed, “the British believed only in keeping in custody the prisoners as economically
as possible and with the maximum profit to the Government”. It was quite natural that
the early British Administration had formulated its Prison Policy with a view to serving it
colonial interests alone.

In 1835 Lord Macauly drew the attention of Legislative Council of India to the degraded
conditions of the Indian prisons and proposed to appoint a committee for the purpose of
collecting the information as to the state of Indian Prisons and preparing an improved
plan of prison discipline and to suggest such reforms as to make the place (the jail at
Alipore) a model for other prisons. The council accepted Macauly’s proposal and
appointed ‘The Prison Discipline Committee’ with Hon’ble H Shakespeare as President
and Lord Macauly as one of the members. In the year of 1838, committee put report. The
Enquiry Committee was a landmark in history penal administration in our country.
Indian Prisoners were given different treatments, the nature and character of the
institution assumed to be a changed meaning, though it was punitive basically in our
country.

The committee directed for the first time attention of the English rulers of India to
various defects of the administration of Indian Jails. It criticized the corruption of
subordinate establishment, the laxity of discipline and the system of employing prisoners
in harsh labour. The committee deliberately rejected all such reforming influences a
moral and religious teaching, education or any system of rewards for good conduct, it
through the whole weight of its authority in favor of increased rigour of treatment, and
proposed to engage all convicts in some dull, monotonous wear some and interesting task
in that quicker relief could be secured by working harder for a time. The purposes the
prisons according this committee was to make “the goal a place of dread” through a
ruthless process of “severe privation, really hard work, solitude, silence and separation”

In pursuance of the recommendations of the committee, A Central Prison was

constructed at Agra in 1846. This was the first Central Prison in India and was followed
by the construction of central prisons at Bareilly and Allahabad in 1848, at Lahore in
1852, at Madras in 1857, at Bombay in 1864, at Alipore in 1864 at Banaras and
Fatehgarh in 1864 and at Lucknow 1867.29 This was the positive contribution in the
 P a g e | 11

spear of Prison Reforms in this country, along with its advocacy of the theory of
retribution in prison administration.

In 1844 the first inspector General of Prisons was appointed in the North Western
Province on an experimental basis for two years and was extended further, in 1850 the
Government of India Made it a permanent post and suggested that each province should
appoint an Inspector General of Prisons. In 1862 the North Western Province employed
civil Surgeons as Superintendents of District Jails.

In 1870 the Government of India passed Prisons Act. It lay down that there should be a
Superintendent, a Medical Officer, a Jailor and such subordinate officers as the local
government thinks necessary. This act categorically specified the duties of the prison
officials. It also made provision for the separation of prisoners of male from females, of
children offenders from adults, of criminal from civil offenders.

In 1877 and 1889 third and fourth enquiry committees were instituted. Based on the
recommendations of the committees the Prison Act of 1894 was passed. By this the jails
appeared to have achieved considerable material progress during this period.

In 1919 the British Government appointed a Joint Commission of officials to investigate

the whole subject of jail management and to suggest improvement. The commission
recommended the establishment of separate institutions like Borstal School for juvenile
delinquents. The under trials were to be kept separate from the convicted and the adult
convicts were to be classified as habitual and casuals. The committee report also took
serious views on transportation of convicts to Andaman Islands and recommended for
the discontinuation of the practice. Solitary confinement had been terminated remain so.
All convicts below 29 years of age were to be cared under adult education programmes
and libraries were to be established in all Jails. Quality of food to be improved and
prisoners were to be provided with two sets of clothing. The commission underlined the
idea of reform of inmates as ultimate objective of imprisonment and rehabilitation of
prisoners as social necessity.

Unfortunately the prison reform movement received a sudden setback due to the
constitutional changes brought about by the Government of India Act of 1919. The Act
 P a g e | 12

transferred the jail department from the control of the Government of India to that of
Provincial Government.

Hence the prison system as it operates today (2016) in our country is a legacy of the
British rule. It was the simple creation of the colonial rulers over our indigenous penal
system with the prime motive of making imprisonment a threat to wrong doers.

With the dawn of independence, prison reform was given increased attention. Indian
leaders were ready with a blue print for the industrial development of the country, but the
jail reform could not escape their eyes as all of them passed their prime life in the jails.
Prison administration is a state subject under the constitution of India. The organization,
headed by the Inspector General of Prisons consists of central prisons, sub jails or district
jails. Different states have adopted different patterns of jail administration. The central
Jails are intended for long term prisoners who are convicted in courts.
India has ratified the International Covenant on Civil and Political Rights (ICCPR) in the
year of 1979 which is the most important international treaty on the protection of the
rights of prisoners. The International Covenant on Economic, Social and Cultural Rights
(ICESR) also states that the prisoners should have a right to the highest attainable
standard of physical and mental health in the prisons.

4. JUDICIAL APPROACH TOWARDS PRISON SYSTEM

Prison is a place where the criminal justice system put its entire hopes. The correctional
mechanisms, if fails will make the whole criminal procedure in vain. The doctrine behind
the punishments for a crime has been changed a lot by the evolutions of new human
rights jurisprudence. The concept of the reformation has become the watchword for
prison administration these days. Human rights jurisprudence advocates that, no any
crime or criminal should be punished in a cruel, degrading or in an inhuman manner. On
the contrary, it is also held that any punishment that amounts to cruel, degrading or
inhuman should be treated as an offence by itself. The transition caused to criminal
 P a g e | 13

justice system and its correctional mechanism has been adopted worldwide. Here, the
inquiry is made to know the extents of the inclusion of these human rights of the
prisoners into Indian legislations.

Internationally, it has become a well-accepted rule that the correctional mechanism in

criminal justice administration should comply with reformative policies. It has also
declared that all the prisoners shall be treated with respect due to their inherent dignity
and value as human beings. There are a set of rights identified by the international legal
system so as to save the human dignity and the value of the prisoners and there by the
reformative theme of correction. It has also been strongly argued that the community can
never tolerate a scheme of correction that does not maintain a connection with the
evilness of the crime done. Thus the punishment always maintains the subjective
perspectives. The rights of imprisoned person have to be read despite of this perception.
It is truly meant that there can be varied punishments for same offence; but one should
not be treated as bad while the sentence once declared by the court goes on. In this
preview, the rights guaranteed that the under the international legal system is to be
looked into and legislative concern for the same in India.

The term prison has been defined by the Prisons Act, 1894 (stated earlier in this thesis) in
an exhaustive manner. Prison could be any place by virtue of a government order being
used for the detention of prisoners. Thus even a jail will come under the definition of the
prison according to this definition. Similar definition has been given to the prison by the
Prisoners Act, 1900. These two enactments still remains the basic premises by which the
administration of the prison has been regulated. The Prisons Act excludes the police
custody and the subsidiary jails from the meaning of the word prison. International
human rights law also developed its own concepts for the term prison. According to
them, the prison can be only a place for the treatment of convicted persons. According to
the human rights law for the protection of imprisoned person, imprisoned person means a
person deprived of the personal liberty as a result of his conviction on any offences and
imprisonments means such condition of an imprisoned person. This will help to give
clear picture with regard to the issues faced by the prisoners in general, an under trial
prisoner and a detained person.
 P a g e | 14

Thus now all the dignity that human holds can also be provided inside the four walls of
prison. The traditional definition and the concept about the prison are: unfit for the time.
Prison life takes away many freedoms from the inmates like; liberty, heterosexual
relations, security autonomy and so on. The human rights jurisprudence has contributed
much for the penal reforms and the same had its impact in India. The penal reforms,
made all over the world, have its effects in India too. The concept of the penal reforms
had its birth from the reformative theory of punishments. Prison of the time should have
a meaning that incorporates the reformation values into it. The reformative aspect thinks
about the incorporating human values into the prison system and the prison officials have
to work for the achievement of the same. The extent of the protection assured by the
legal system for the reformative treatment of the prisoners should be made under a
national legal frame work and India lacks the same thing.

The modern idea about the prison has been envisaged by the judges through the decision
making process. Even the concept of open jails has been evolved by the time. No longer
can prisons be called as an institution that delivering the bad experiences. Krishna Iyer, J
opined prison as: “A reformative philosophy, rehabilitative strategy, therapeutic prison
treatment and enlivening of prisoner’s personality through a technology of fostering the
fullness of being such a creative art of social defence and correctional process activating
fundamental guarantees of prisoner’s rights is the hopeful note of national prison policy
struck by the constitution and the court.”

Concept of Human Rights and prison

Human right is a modern term but the principle that it invokes is as old as humanity. It is
that certain rights and freedoms are fundamental to human existence. They are inherent
entitlements that come to every person as a consequence of being human, and are
founded on respect for the dignity and worth of each person. They are not privileges, nor
gifts given at the whim of a ruler or a Government. Nor can they be taken away by any
arbitrary power. They cannot be denied, nor can they be forfeited because an individual
has committed any offence or broken any law. Initially these rights had no legal basis.
 P a g e | 15

Instead they were considered to be moral claims. In due course these rights were
formally recognized and protected by law. Often they came to be safeguarded in a
country's constitution, frequently in the form of a Bill of Rights, right to equality, etc.
which no Government could deny. In addition, independent courts were set up in which
individuals whose rights had been taken away could seek redress.

The widespread abuses of human rights and freedoms around sixty years ago, which
culminated in the atrocities of the World War between 1939 and 1945, put an end to the
notion that individual States should have the sole say in the treatment of their citizens.
The signing of the Charter of the United Nations in June 1945 brought human rights
within the sphere of international law. All Member States of the United Nations agreed
to take measures to safeguard human rights. Three years later, the adoption of the
Universal Declaration of Human Rights provided the world with a "common standard of
achievement for all peoples and all nations based on the recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family.
Human rights issues and obligations are now an issue of the day-today conduct of almost
all governments. Over the years, since the proclamation of the Universal Declaration of
human rights in 1948, States have developed a considerable number of human rights
instruments at the national, regional and international levels and have undertaken
obligations under international and domestic law both to promote and to protect a wide
variety of human rights.

Human Rights In Indian Context

The Indian socio-legal system is based on non-violence, mutual respect and human
dignity of the individual. If a person commits any crime, it does not mean that by
committing a crime, he ceases to be a human being and that he can be deprived of those
aspects of life which constitutes human dignity. It is the human life that necessitates
human rights. Being in civilized society organized with law and a system as such, it is
essential to ensure for every citizen a reasonably dignified life. Even if the person is
confined or imprisoned because of his wrong, he is entitled to their rights unaffected by
the punishment for wrongs, simply because if a person under trial, his rights cannot be
discarded as a whole. Since independence, India had sought to institutionalize its
commitment to human rights by a deliberate choice of an open society and a democratic
 P a g e | 16

policy based on universal adult suffrage, respect for the dignity of the individual, the role
of law and multi- party system.

India has been firm in its conviction that democracy is the best guarantor of human rights
and it provides on optimal political framework for development. Poor countries like
India require a massive social and economic transformation to conquer the ancient of
poverty, ignorance and injustice. But India believes that in order to be feasible such basic
changes have to be based on free and willing consent of the people provided by a
democracy. The institutions which India fashioned to sustain as plural, multi – ethic,
multi-religious, multi – linguistic and a secular polity had the overreaching objectives of
consulting the norms and principles of democracy.

Indian Constitution as a matter of pride provides for comprehensive framework to

safeguard human rights giving special emphasis more on the rights of religious, cultural
and linguistic minorities. The judiciary has been vested with special responsibility to
protect human rights and the Supreme Court as a sacred trust has accepted the protection
of minorities. The Constitution of India for fundamental rights and Directive Principles,
in Chapter III and Chapter IV respectively, so as to bring in peace and happiness among
the citizens. Some of the fundamental rights as enshrined in the Constitution of India are:

a) Equality before Law,

b) Prohibition of discrimination on the grounds of religion, race, caste, sex or place of

birth,

c) Equality of opportunity in matters of public employment,

d) Abolition of untouchability,

e) Freedom of speech and expression,

f) Protection of life and personal liberty,

g) Right against exploitation,

h) Right to freedom religion,

 P a g e | 17

i) Cultural and educational rights, and

j) Right to constitutional remedies.

The above mentioned fundamental rights have been given so much importance that
infringement of the rights would confer right to move the highest court of the land, the
Supreme Court by way of appropriate proceedings for enforcement of the same. The
Supreme Court has been vested with the power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari whichever may be appropriate for the enforcement of any of the fundamental
rights guaranteed under the Constitution of India. Besides, the Parliament has been
vested with powers to empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court as detailed above.
The Constitution of India further provides that a person whose rights have been violated
has the rights to directly. approach the High Courts and the Supreme Court for judicial
rectification, redressal of grievances and enforcement of fundamental rights under
Articles 32 and 226. By virtue of these provisions the Supreme Court of India has
expanded the ambit of judicial review to include review of all those State measures
which either violate the fundamental rights or violate the basic structure of the
Constitution. There are ample powers conferred by Article 32 read with Article 142 of
the Constitution to make orders which have the effect of law by virtue of Article 141 and
there is mandate to all authorities to act in aid of the orders as provided in Article 144 of
the Constitution.

Judicial Activism on Prison Reforms

The Indian Supreme Court has been active in responding to human right violations in
Indian jails and has, in the process, recognized a number of rights of prisoners by
interpreting Articles 21, 19, 22, 32, 37 and 39 A of the Constitution in a positive and
humane way. The Supreme Court of India in the recent four decades has been very active
against violation of the Human Rights of the prisoners. In this area an attempt is made to
explain the some of the provisions of the rights of prisoners under the International and
National contexts and also as interpreted by the Supreme Court of India in the light of
 P a g e | 18

Fundamental Rights. Through its positive approach and the Activism, the Indian
judiciary has served as an institution for providing effective remedy against the
violations of Human Rights.

Prisoners depend on prison authorities for almost all of their day to day needs, and the
state possesses control over their life and liberty, the mechanism of rights springs up to
prevent the authorities from abusing their power. Prison authorities have to be, therefore,
accountable for the manner in which they exercise their custody over persons in their
care, especially as regards their wide discretionary powers. Disturbing conditions of the
prison and violation of the basic human rights such as custodial deaths, physical
violence/torture, police excess, degrading treatment, custodial rape, poor quality of food,
lack of water supply, poor health system support, not producing the prisoners to the
court, unjustified prolonged incarceration, forced labour ,overcrowded prisons,
prolonged detention of under trial prisoners, unsatisfactory living condition and
allegations of indifferent and even inhuman treatment by prison staff and other problems
observed by the apex court have led to judicial activism.

Role Played By Judiciary for Prisoners Protection

The Indian Judicial system has played a significant role in the direction of protection of
prisoners and also to ensure safety and security of the people in custody or inmates or
detenues. Judicial setup (especially supreme courts and high courts) in India, under no
circumstances, can pave way for violation of human rights of the people in custody and
allow inhuman activities to go on. The jurisdiction of the judiciary system is to see to it
that the accused, which they order to be arrested by police, is duly informed of the
grounds for his/her arrest. They should also ensure that the nearest relative of the accused
is in touch with him and the accused is allowed to contact the legal practitioner of his
own choice and appropriate arrangements are also made to regain his freedom. It is
provided in the Code of Criminal Procedure (Cr.P.C.). The Judicial Magistrate should
enquire from the accused as to whether he/she has been informed of the grounds of
his/her arrest. This provision is made in Art.22 (1) of the Indian Constitution.

Also on the same lines the judicial system, including the Supreme Court of India as its
Apex Body, has interpreted Art.22(2) of the Indian Constitution to mean that the arrested
person must be produced before the Magistrate within twenty four hours of his arrest. It
 P a g e | 19

is further provided that the officers responsible for the custody of the accused should
produce him before them as directed by the Constitution as well as Cr.P.C. Further, after
completion of the hearing before the Magistrate, if it is proved that the crime is bailable,
the bail should be granted and the accused be released immediately on bail. Further,
when the trial is pending in court the Judicial system plays another role of treating the
accused with dignity and directs the authority responsible for his custody to accord
human dignity to her. Honourable Supreme Court of India has laid down that the accused
in pretrial detention is entitled to fair and decent treatment by way of comforts and
medical attention so that humanity is never degraded or disregarded. Supreme Court and
other courts in India have passed various rulings that any violation of human rights
during under-trial detention will be followed by compensation for unlawful detention.

Apart from the legal rights conferred on the accused, now the bodily conditions, in
custody of police also, are required to be maintained by the custodians. Such
requirements, though may not be up to standard required, should be at least be
reasonable. The living conditions and other common facilities provided to the accused in
custody should ensure a good healthy environment, provision of better living
accommodation, separate toilets for ladies and gents, bathrooms with basic necessities,
adequate care of children, accompanying them suitable medical facilities, education,
vocational and recreational facilities and prepare them for rehabilitation after release.
Finally, the quality of food served in custody must be good, it should be cooked
hygienically and should be well tested before it is served. Further, the food must include
well balanced diet to inmates. The jails must be treated as reformatory Homes and not
places for molesting, teasing, torture and ill-treatment.

5. CONCLUSION AND SUGGESTION

Researcher during the entire research has tried to mention the ways which can improve
the prison environment and rehabilitate prisoners into society. Researcher has discussed
many prison reformative techniques through judiciary, legislations, and community
involvement in the entire thesis. These techniques or ways really help in the reformation
of prisoners, Noticeable among them can be concluded below:-

1. Sympathetic behaviour of jail inspecting judges: The judges, especially the jail
inspecting judges should not be oblivious to the strict positivist approach to law that the
 P a g e | 20

prisoner is liable to only that punishment, which is legally sanctified they should behave
sympathetically towards them as they are already distressed.

2. Probation: It is a very significant tool of reformatory penology which is basically a

period during which the convict ordered to undergo sentence, remains, instead of being
in prison, under supervision. It is a treatment device, developed as a non- custodial
alternative which is used by the criminal courts after guilt of an accused is established
and the court considers that imposing a prison sentence would do no good, since
imprisonment damages scope for the convict to readjust in the normal society after the
release and his association with professional criminals in jail often has undesired effects..
Such a suspension of sentence during probation serves the dual purpose of deterrence for
the convict (by acting as a threat of his being subjected to unexhausted sentence) and of
reformation (by providing necessary help and guidance to the probationer in his
rehabilitation).

3. Parole: The ultimate significance of parole is that while retaining effective control
over him, it enables the prisoner a free life. Under 434 the scheme, every prisoner is
carefully studied and the one who shows potential for correction and responds favourably
to the disciplined life inside the prison, is allowed considerable liberty and finally
released to join the society conditionally. It is considered as most important tool as
reformation in almost all nations of world.

5. Suspension commutation and remission: While considering the premature release of a

life convict, the authorities are required to consider his case mainly taking into
consideration the questions as to whether the offence was an individual act of crime with
no effect on the society at large, as to whether there was any possibility of a future
recurrence where the convict commits a crime; as to whether the convict had lost his
potential to commit crime: as to whether any fruitful purpose would be achieved by
confining the convict any further; as to whether the socio-economic condition of the
convicts family call for such a premature release and other similar facets.

6. Pardon: as a mode of mitigating the sentence of the criminal has always been a
controversial issue since long. Proponents of power to pardon in the penal system argue
that it substantially helps in saving an innocent person from being punished due to
miscarriage of justice or doubtful conviction.. Despite all its shortcomings, the great
 P a g e | 21

moral advantage of pardoning power of the executive lies in the fact that it is always
referable to grant liberty to a guilty offender rather than sentencing an innocent person.

7. Open prisons: also named as open air camps, open jails or parole camps (being a sort
of expanded form of parole), are another such significant tool of criminal reformation,
Open air-institutions are essentially a 21st century device for rehabilitating offenders to
normal life in the society through an intensive after-care programme.

8. Self-governance by inmates: Under the system of self-government in prisons, the

inmates elect some of their fellow prisoners as their representatives and the entire prison
management is run by that elected body of prisoners, who exercise complete or at least
partial control over mess and are expected to take care of the interests and welfare of
their fellow prisoners.

9. Work Release: In this method, the prisoner is allowed to work for pay in the society
for part time basis. This gives him an opportunity to mix up with the society in a normal
manner without any limitations. The control of the prison authorities in, however not
completely taken away since he has to work within the permitted parameters and during
non-working hours, he has to return the concerned correctional institution.

10. Vipassana :It is a practical experiential way of understanding the mind-matter

phenomenon and purifying one’s mind of underlying negativities. . It equips one with the
inner strength to face the challenges of life in a calm, balanced manner, and gain mastery
over one’s mind.

11. After care programmes: During last about 2-3 months of the awarded term of
sentence, the prisoner should be placed under an intensive after-care system, which
systematically designed individualized process will offer him adequate opportunities to
overcome his inferiority complex and guilt. In India, certain social 436 institutions such
as seva sadans, nari niketans and Reformation Homes are at work in different places,
involved in the task of aftercare and rehabilitation of criminals.

12. Role played by judiciary: The Indian judiciary has adopted new approaches,
developed new tools and invented new remedies to deal with increasing challenges to
violation of human rights of prisoners. Over the last thirty years the Supreme Court has
 P a g e | 22

been rendering a signal service to the authorities dealing with prison system by
upholding their Human Rights in the context of continuing International concern for their
Human Rights. The court has protected the personal liberty against arbitrary invasion by
the state.

13. Education and vocational trainings: The continuing education of prisoners is yet
another tool, that keeps them occupied and also would help their rehabilitation after
release from jail. There should be greater emphasis on vocational training of inmates,
which will provide them honourable means to earn their livelihood after release from jail.
The facilities of lessons through correspondence courses should be extended liberally to
the inmates, who are desirous of taking up advanced studies.

14. Yoga and meditation: It is strongly believed that the practice of yoga and meditation
can enable the prisoners to control their mind, which is prone to aggression bouts owing
to their basic temperament and prison life. This is indeed a new approach to the
problematic of crime and criminal in the Indian setting.

BIBLIOGRAPHY

1. Prison Reform Trust briefing. http://www.prisonreformtrust.org.uk/

standard.asp?id=2030 House of Commons Education and Skills Committee, 2004 report
2. Prisons Act, 1870,
3. Prison Act, 1874
4. Prison Act 2000
5. Prison Statistics India (2012).
6. Prison Reformation Report – New Delhi (2010)
 P a g e | 23

7. Justice A N Mulla Committee. The All India Committee on jail Reforms (1980—83)
under the Chairmanship of Justice A. N. Mulla. Avialble online at
http://www.humanrightsinitiative.org/publications/prisons /prison_visiting_system.pdf
Accessed on 08 March 2019