Time to Raise the bar

The recent extradition hearings in the UK of alleged bookie Sanjeev Chawla and liquor baron Vijay Mallya have highlighted the violence and overcrowding in Indian prisons. These, being directly linked with the abysmal prison conditions and violation of prisoners’ rights, had prompted one of the defendant’s counsels to remark that “the conditions in Indian jails are far from satisfactory.”

That, there is merit in this statement and it is evidenced by the observations of the Supreme Court of India in its last order Re Inhuman Conditions in 1382 Prisons. (“The unrestricted overcrowding in jails continues…” “The performance of the Under Trial Review Committees is extremely dismal...” “This is highly unfortunate and clearly suggests the complete lack of commitment of the State Governments and Union Territories to the human rights of prisoners...”)

This case was initiated in 2015 in response to a letter by a former Chief Justice of India highlighting the deteriorating conditions of prisons. While a number of directives have been passed since 2015, compliance and implementation has been poor. 

The majority of Indian prisons are still governed by a 124-year-old Prisons Act, which focuses primarily on enforcement of discipline with no regard to thereformation and rehabilitation of prisoners. Some prison manuals still mention barbaric practices such as flogging, use of fetters, shackles and handcuffs. Till date, only a few states like West Bengal, Delhi and Punjab, have taken the lead in framing a new act which places emphasis on the “correctional” aspects of prison administration. Efforts are now underway by the National Human Rights Commission, India to draft the Prisons and Correctional Services Act which would replace the Prisons Act.

Prisons in India, like most other countries around the world, suffer from a plethora of problems. Overcrowding, lack of medical healthcare, inadequate provisions for food, clean water, living space, hygiene and high susceptibility of prisoners to custodial torture, are just a few of many.  This coupled with dismal functioning of prison oversight mechanisms, severe shortage of prison staff and an inclination for adopting ad hoc reformatory measures such as video conferencing with little or no consideration for human rights,is making the situation worse.

Some key issues and challenges that plague Indian prisons are explained below...

Overcrowding: According to the Prison Statistics India 2015 published by the National Crime Records Bureau, Indian prisons are overcrowded by 14.4 per cent, with 149 prisons having occupancy rates of more than 200 per cent. This rate can go up till 500 per cent to 1,150 per cent in certain cases. For instance, one prison in Tamil Nadu has 200 prisoners lodged in prison fit for just 16 persons. High proportion of unsentenced prisoners, i.e. prisoners who are yet to be convicted for any offence contribute to overcrowding (undertrials). For the past 10 years their rate has hovered between the 65-67 per cent rate, meaning that a chunk of the resources that were to be spent on rehabilitation and reintegration of convicts are spent on the upkeep of persons who are presumed “innocent” till proven guilty.

Living conditions: For those having money power, access to adequate food, water and hygiene isn’t difficult. But for the remaining others, which constitute the majority, finding clean drinking water too can be an uphill task. Water tanks are often adjacent to sewage lines; worms frequently find their way in meals served; and there is hardly space to lie down without bumping into another prisoner.  Additionally, the prison oversight mechanism — Board of Visitors — which is mandated to visit prisons and periodically check on prison conditions is defunct in most prisons.

 

Medical facilities: The law mandates that prisoners must be subjected to medical examination within 24 hours of admission. Yet, extensive shortage of medical staff, particularly in the tehsils and districts, inhibits its realisation. Over the last 10 years there has been a decrease of 2.9 per cent in the percentage spent on medical healthcare of prisoners. Moreover, even where medical healthcare is available, medicines are pilfered instead of being used to treat patients or one must bribe officials to gain access to these services. The situation is no different for mental healthcare either. Psychologists or psychiatrists are rarely available in a place bursting to the seam with tension. Lack of effective medical and mental healthcare promotes spread of disease and also affects life expectancy.  Since 1995, there have been 24,015 deaths in prison 1,076 of these were suicides. When compared to suicide rates in general population, the propensity to commit suicide is double when in prison.

Staff Vacancies and training: 24,588 of the 77,230 i.e. almost 30 per  cent sanctioned posts of prison officers lie vacant at present. With salaries and designations for prison cadre falling substantially below their counterparts in the police cadre, prison doesn’t attract many. Moreover, filling up vacancies is meaningless without provisions to provide proper training for recruits. It is a torrid fact that some prison officers can spend decades performing duties without even once having received training themselves.

Custodial Violence: Prisons being closed institutions, together with lack of effective oversight, means instances of custodial violence often go unchecked and undeterred. Interactions with prisonershave often resonated with horror stories. Yet, even where these stories are documented or brought to the notice of the authorities, there is little change.There are a number of cases, including Manjula Shetye’s case which highlights the rampant physical and mental abuse prisoners often face.

However, it must be understood that none of these issues are prisons problem alone. The judiciary, police, prosecutors, defence counsels, legal aid authorities, district magistrates are equally complicit in this. For instance, overcrowding, as explained above, is linked to high proportion of undertrial prisoners. This in itself, and as correctly pointed out in its report on Women Prisoners & Access to Justice by the Parliamentary Committee on Empowerment of Women, is on account of the high number of unjustified or unnecessary arrests made by police. Arbitrary arrests and subsequent absence of strict scrutiny at production are the primary reason for India ranking 18th in the World Pre-trial/Remand Imprisonment List in 2016. Non-liberal grant of bail and non-reliance upon alternatives to imprisonment such as release on probation, community sanctions further add to the numbers. 

Lack of prompt and effective legal aid services for those unrepresented is also a contributing factor. From April-June 2017, statistics published by the National Legal Services Authority (NALSA), which is the nodal agency mandated to provide legal aid services, suggests that legal aid was provided to 32,610 persons in custody. While there are no statistics available to measure the demand for legal aid, given that 71 per cent of India’s prison population is either illiterate or educated below high school, the figures should be much higher. Though NALSA has made efforts to constitute legal aid clinics in all prisons across the country, their efficacy remains a challenge.

In the past decade numerous schemes have been conceptualised by governments and directives have been laid down by the Supreme Court and high courts. Yet none of these measures have worked; the prison population is on the rise and human rights violations in custody continue, unchecked, unattended like before.

The recent over-reliance on video conferencing for production of prisoners in courts, without putting in place adequate safeguards to protect the fair trial rights of the accused, deeply impacts the overall dispensation of justice. With no legal provisions in place permitting conducting of trials via video conferencing, many courts carry on this practice. Moreover, lack of physical interaction with lawyers impacts effective legal representation for the accused as well as lack of interaction with judicial officers, who are mandated to ensure his physical well-being, leaves a prisoner haplessly in the hands of prison officers, who may subject him to abuse.

These piecemeal changes and ad hoc interventions will do more harm to the system then good. What is required is a concerted effort by all stakeholders to own up to their responsibilities towards prisoners and prisons as enshrined in the constitutional and statutory law.

A few clear steps can move the process forward positively. These include, strict compliance with pre-trial safeguards;revision of age old prison manuals; training and sensitisation of prison staff; effective oversight over prison conditions; periodic review of undertrial prisoners and access to effective legal aid services.

(The writer is with Commonwealth  Human Rights Initiative)