FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA :A LEGAL PROSPECTWE MANOJ KUMAR A- INTRODUCTION The world of Prison i s no longer

secret: Prisons have invited members of the public as volunteers to work with them for years but in the last two decades this trend has developed i n an impressive way2. This has helped to know about the prisons, its inmates and their problems. Accordingly, i t is evident that the Indian Prison System i s i n crisis. The dimensions of the problems faced by our contemporary prison system are such as require prompj and effective action3. A concerned Supreme Court recently, ordered the expeditious trial of criminal cases pending for more than five years. It may come as a shock to the Judges who passed the order, that there are under trial in our prisons those have spent 20 years or more behind bars, without actually being convicted4. *I. The author is a Research Scholar, International Legal Studies. Jawaharlal Nehru University. New Delhi, India. E-mail: sahumanoja@usa.net 2. Comment, Prison Service Journal. September 2000 No 131. P.l 3. There are 1305 prisons in India (Central Jail 93. District Jail257. Sub-Jall 850, Open Jail-2. Special jail 28. Women jail I?. Borstal Institution-13 and Juvenile and Lunatics Camps-13) having the authorized capacity of 214241. Against thts authorized accommodation the actual prison population is 257235 which is dominated by the large chunk of under trial prisoners 1 e.. 73% This proportion

of under trial prisoners is rapidly is on increase leading to overcrowding in Jail 20% in 1998 agoinst 9.33% i n 1996. The percentage of women prisoners in total prlson population Is increasing on rapid pace especially in Bihar. Madhya Pradesh. Gujrat. Orissa, Andhra Pradesh. Maharashtre and Mizoram, while inDelhi and Haryena it is slightly declining or static in comparison to the year 1996. The problem of overcrobding in jail Is not uniformly prevailing In all StatesIUTs. However is 3.18%. We have the sancl~oned Strength of 49030 of prlson staff at various ranks out of which the present stalf strength i s ?round 40000. The ralio between the prison staff and the prison populatton is epproxlmately 1:7. It means odly one prison officer is available for 7 prisoners. while in UK 2 prlson officers are available only for 3 prisoners. (Statistical profile of Prisons in India prepared by Bureau of Police Research and Development. Ministry of Home Affairs, Government of India, New Delhi as on 31.12.1998) 4. Ral Atuk Krishana. Nacked Truth: Under trials doing time without convictions. Hindustan Times, New Delhi, April t g . 2001.

Vol XW FORMULATING A PRAGMATIC PRISON POLICY FOR I N D I A 177 2. Hence, over crowding i n Prisons, prolonged detention of under-trial prisoners, unsatisfactory living conditons. lack of treatment programmes and allegations of indifferent and even i n human approach of prison staff have repeatedly attracted the attention of the critics over the years This raises an interest to undertake a careful study about the e x ~ s t i n g Indian Laws in relation to Prisons, to conduct a survey on attempts at prison reforms in our country and to analyze activism on the subject, with an objective of ensuring the minimum human rights to the Prisonerss as well. B- THE PROBLEM 3. Crime in lndia is showing an increasing trend while there is an decreasing trend in the reported crime, and there is an overall upward trend in Prison Population Comparatively6. This is a matter needs a careful study with regards to crime reported, procedures for investigation, policies of arrests and award of sentences. A majority of the persons l o d g e d i n p r i s o n s consisted of people belonging to the under privileged sections of society7. Majorities of the prison population consist of first offenders involed in technical or minor violations of law. Half of the prison population is under trial,. which is the main reason for over crowding in prisons. Conditions of living in most of the prisons are sub-human. Mass approach towards various problems of prisoners is in vogue. ,

5. It would not be out of place to mention here that accordtng to the UN Global Report

on Crime and Justice. 1999, the rate of imprisonment tn our country IS very low i.e.. 25 prisoners per one lakh of populatlon In compartson to Australta (98 1 prtsoners). In England (125 prtsoners) i n USA (616 prtsoners) and i n Russia (690 prisoners) per one lakh of population A large chunk of prison populatlon ts domtnated by the first offenders say around 90h The rate of offenders and rectdtvlsts tn prison populatton of lndian Jails i s 9:l whtle In U K i t IS I 2. whtch i s qulte revealing and alarmtng 6. Seq, the National Crime Record Bureau. (NCRB) Gazette and Crime In India, prepared by NCRB. Ministry of Home Affairs. Govt. of India, New Delhi. 7. Realities i n indian Prisons Report of the A l l India Committee on Jail Reform 1980-83, VOI-I. Ch. Ill, PP 18-32.

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4. It is shocking to find that all categories of inmates are huddled together in most of the prisons including; women, children and young offenders and adults8. The plight of women, children and young offenders i n prison is really an issue of grave concerne. [nadequate medical services and absence of psychiatric services in prisons. add to the difficulties of prison administration. i n some jails there are mentally ill persons who have not committed any crime. In the other hand, the existing prison buildings are not functionally suitable. 5. Prison industries and work programs are archaic and devoid of any rehabilitative value for inmates. The insertion of section 433-A i n the Indian Penal Code (IPC), making mandatory for the life convicts to serve at least 14 years of actual imprisohment before being considered for premature release has jumped their spirits for improving their behavior and work skilllo. There are allegations about prevalent corruption, mal-practices and mal-treatment of prisoners. Trafficking in drugs, use of intoxicants, favoritism, unwarranted use of office, gangsterism, political influence and deprivations are common things in our prisonsf1. There is no effective system or machinery for looking into even the genuine grievances of prisoners1*. There is no proper free legal aid mechanism to help or guide prison inmates on legal matters. The condition of sub jails and police lock ups is extremely deplorable. They are the most neglected institutions of our criminal justice 8. Carlen Pat, Why study women imprisonment. The British Journal of Criminology. Vol. 1994. PP. 131-140. 9. Scaco Anthory M.. Rape i n Prison. Charles C. Thomas publisher (USA), 1075, P. 127.

prison and probation. 10-11. Restriction on Powers of Remission or Commutation in certain cases. The administration of prisons i n the country is still governed by the anti-quoted Prisons Act 1894. Sarkar on Criminal Procedure. Protective and . Kaushik Rarnaswamy. March 18. 2001. 2000. There is a lack of coordination among police. . Sep. prosectution.2 12. Sarkar. by Prabhas C. This is essential not only for ensuring efficiency. Prison Service Journal. No relief for over-crowding Tlhar. Training of prison personnel has remaini.10. PP. Towards the Restorative Prison. The provisions of the Act do not meet the needs of the contemporary correctional thinking. To be an efficient unit and center for protection and c o r r e c t i o n a l t r e a t m e n t a p r i s o n must e s s e n t i a llybea scientifically manageable unit. New Delhi. Hindustan Times. P. Scientific approach towards treatment of offenders has not yet to-be accepted and adopted by prison administration anywhere i n India. judiciary.ng woefully neglected in India. 6. 1264-65. Indian Law House. New Delhi 1997. NO-131. 11. Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 179 system.13 The organizational structure of the department of prisons i s inadequate and in effective. Margaret Carey. Any attempt by voluntary agencies to extend their services for the welfare of prisoners is looked upon with suspicion by prison personnel. PP. financial discipline and control but alos for minimizing corruption i n departmentq5.

ignored. 1.. Gaithersbung. The contemporary Prison administration in lndia is a legacy of the British rule. Peter M. Uncured. Standard for Psychology Services in Jails. C. Neeta Sharma. No. 14.2001. Carlson.. corruption of Prison Personnel. 24. PRISON REFORMS I N INDIA : THE HISTORY 7. (1999). 4. I t i s based on the notion that. l 1980-83 Vol. Ch. Report of the All lndia Committee o n ~ a t Reforms. . 27. Prison and Jail Admtntstration : Practical and Theory. 171-77 18. March 18. CorPectional Fac~litiesand Agencies. correctional objective of prisons can be achieved only when an atmosphere of wholesome opportunity surcharges with a positive value is created i n these institutions and prisons are exposed t o such an a t m ~ s p h e r e ~ . Hindustan Times. 433-494. PP. PP.2. PP. P. Ch. Prisons. 18-32 15. the best criminal code can be of a very little use to a community 13. Vol. behind bars. Ill. An Asper Publication. Realities in Indian Prison. Special issue. Criminal Justice and Behavior.

But no attempt has made at legislating the proposed draft bill.Even afte. Provisions regarding the Jail offences and punishment were specially examined by a conferences of experts on Jail Management. the archaic Prison Act 1894 has hardly undergone any substantial change.180 200 1 CENTRAL INDIA LAW QUARTERLY unless there be a good machinery for the infliction of punishments1?. The conference proposed the enactment-of a prison law and a draft bill was prepared. In 1877 a Conference of Experts met to inquiry into p r i s o n administration. was appointed.ion w a s a p p o i n t e d . In 1864 the second Commission of Inquiry into Jail Mangement and Discipline was appointed.Discipline Committee. In 1894 the draft bill become law by obtaining the assent of Governor General of India. a consolidated prison bill was prepared. the process of review of the prison problems in India continued even after this. on the basis of which the present jail Management and administration is operating in Imdia. the report was radical due t o i t s . In the report of lndian Jail Committee-1919-20. 1894. improvement diets. for the first time in the history of prisons the reformation and rehabilitation of offenders were i d e n t i f i e d as the objectives of p r i s o n : adminitratiorP8. in 1836 reforms at tndian prisons was initiated upon the recommended by Lord Macaulay. bedding and medical care. clothing. While recommending in the same liner as the 1836 Committee. In i 8 8 8 . Though. However. It is the Prisons Act. which submitted i t s report on 1838. First time. The committee recommended increased rigorous of treatment while rejecting all humanitarian needs and reforms for the prisoners. 100 years of the inception. the Fourth J a i l Commiss. the Commission made some specific sugestions regarding accommodation for Prisoners. O n t h e b a s i s o f recommendation of the Jail Commission of 1888. A committee namely: Prison.

1919. 32. P. but could not be implemented due to 17. Repo!t of lndian Jail Committee . 18. Deterrence was the basis of the concept of Prison. Vidhya Bhushan. 2 0 .reformative approach. . P. Prison Adrninistrat~on In India.

Reckless prepard a report namely. The Government of lndia Act-1935 which resulted in the transfer of the subject of jails from Centre List to the control of provincial government and hence further reduced the possibility of uniform implementation of a prison policy at the national level. ~ c c o r d i n ~ i ~ Govt. The report made a forceful pleas for formulating an uniform policy and latest methods relating to jail administration. The MPM-1960 is the guiding principle.16gal substitutes was recommended by himtg. j u v e n i l e and remand homes.C. I n 1951. of lndia appojnted the All lndia the . Dr. borstals and protective homes suppression of immoral traffic etc. The report also suggested amendments i n the Prison Act-1894 to provide a legal base for correctional work. Dr. His report made a plea for transforming jails into reformation centers. Jail Administration in India. probation. on the basis of which . the government of lndia took an land mark inititatives by inviting the United Nations expert on correctional work. In 1952. Reckless in order to undertake a study on prison administration and to suggest policy reform. The revision of outdated jail manuals and introduction of. Jail Manual Committee in 1957 to prepare a model prison manual. The committee prepared the Model Prison Manual (MPM) and presented it to the Govt.c a r e . the Eighth Conference of the Inspector General of Prisons also supported to recommendation of Dr. c e r t i f i e d and reformatory school. a f t e r . of lndia in 1960 for implementation.Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 181 the unfavorable political atmosphere that prevailed during that time. The committee submitted its report in 1960. Reckless regarding prison reform. 8. W.

Report ofbthe All lndia Committee on Jail Reform. 9. 1. PP. Both the Central Government and St8te Governments undertook various initiatives in connection to prison reforms 19.the present lndiari prison management is being governed. Revlew of Prison Reform. 1980-83. Vol. 7-17 .

The Committee specially recommended a total ban on the heinous practice of clubbing together juvenile offenders with the hardened criminals i n prisons. i n order to improve the Indian prison management and adminsitration according to the 20. Consequently. In 1980.182 CENTRAL INDIA LAW QUARTERLY on the lines of the Model Prison Manual. The Mulla Committee submitted thereport in 1983. 10. Siddique Ahmad. In 1972. It also made an important recommendation with regards to classification and treatment of offenders and laid down prin&ples. Governent of India. Mulla. The Committee also suggested segregation of mentally disturbed prisoners to mental asylums21. i n 2000. Criminology. It has recommended induction of more women i n the police force i n view of their special role i n tackling women and child offenders22. a comprehensive legislation has been enacted for the security and protective care of delinquent juveniles. rules and regulations keeping in view the overall objective of protecting the society and rehabilitating the offenders. the Government of lndia appointed. It brought out in its report the need for a national policy on prisons. Justice Krishna lyer Committee to undertake a study on the situation of women prisoners in India. The Committee has suggested that the existing di-archy of prison administration at Union and State level should be removed20. Problems and Perspective. Basic objective of the Committee was to review the laws. the Government of lndia set-up a Committee on Jail Reform under the chairmanship of Justice A. the Ministry of Home Affairs. N. the Ministry of Home Affairs. Government of lndia appointed a Committee for the Formulation of a M O ~ B I Prison Manual which would be an pragmatic prison manual. Again 1987. Lastly. appointed a working group on prisons. Eastern book Com- .

Ch.pany. P. XXIX. Lucknow (1997). Eastern Books Company. 365402 22. 151 . P. Siddique Ahmad. ibid. Lucknow 1997. 150 21. PP. Summery of Recommendations. Criminology : Problems end Persopective.

3. 4. Govt.(Attendance in Courts) Act . 2.. 23. The domestic legislation pertaining to the management and administration of prisons in India are scattered in different Acts at the national level. Ministry of Home Affairs.1894. The lndian Prisons Bill . The Prisons Act. ~ h e s e as follows : are Existing Laws 1.1894 13. 1894. 3. I t has provided for separation of prisoners on the basis of age. . 12. Data colleted from the Bureau of Polic Research (L Development.1998.. lndian Prison Legislations : A Survey I .1998.a general and uniform footing of prison administration throughout the country. The Prisons Administration and Transfer of Prisoners Bill .1996. The Prison Act . New Delhi. The Prisoners Act 1900. streamlines . The work of the Committee is under D. 2.1955.. The Transfer of Prisoners Act . Forthcoming Laws 1. of India. Teh Prisons Management Bill .Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 183 international standard. Some important provisions of the aforesaid Acts and forthcoming Bills are being discussed in some details below 24 The Prisons Act .1950. The Prisoners .

Children Act. Civil Jail Act 1874. Besides the aforesaid. there has been a number of Acts those plays an important role for the management of prison in India. Borstal School Act. Young Offenders Act. Probation of Offenders Act 1958. Civil Procedure Code and Criminal Procedure Code etc. Habnual Offenders Act. Provisions of Jndian Penal Code. These are. .24. lndian Lunacy Act 1952.

stage of proceeding. confinement. hand cuff. According to the provision the sick prisoners can report to Deputy Superintendent of Prison i f there is an genuine problem of health service26. subject to the exmination and issue of certificate of fit by the medical officer in order to sustain the punishment. refuses to work. bar fetters or whipping. With the aforesaid mandates the Prisons Act since the date of inception i. 200 gender. etc. insult.. supervision andcoordination of prisons in a state. Each prison generally headed by a Superintendent assisted by other subordinate. clothing. use of criminal force. penal diet. pre-release and employment of prisoners under different chapters. Only the officers equal to the rank of Superintendent and above are empowered for prison punishment. the Act enumerates comprehensive plans on the issues like. fitter.1894 has . false accusation and conspiring to escape than in order to control them the Act provides for punishments like : warning.184 1 CENTRAL INDIA LAW QUARTERLY .e. 1st day of July . the Act provides for initiation of proces by the District Magistrate upon the recommendation of the Prison Superintendentz7. While the Prison Act. bedding.. In case a prisoner committed a heinous crime. treating immoral and indecent behavior. tempering. The Inspector General (Prison) has made the supreme authority for the general administration. 1894 i s based on the principles of deterrent theory of punishment but female and civil prisoners are excluded from punishment of handcuff. The power of prison executive staff to inflict punishment for prison offences are restricted to maintain discipline. prison administration.Besides the above. health care. The medical officer has made responsible for over all health condition and care of prisoners. nature of crime and p u n i ~ h m e n t~~. causes willful damage. If an inmate commits willful disobedience. assault. sanitation. labour (7 days).

ibid.25. Sec .37-39 27. Ch. ibid. Sec . 11. Sec -27-30 26. VIII. The Prisons Act . Ch. Ch.45-54 . V.1894.

issued by the High Court under criminal jurisdiction. After execution the OIC have to return the writ.Special provision has been made for tunatic prisoners. The Prisoners Act 1990 13. or warrant etc. order and warrant of subordinate courts and tribunals. It gives authority to the OIC for execution of sentence. a Superintendent of Police to be appointed by the State Government. warrant etc.The State Government and Inspector General (IG) of Police has powerto order for removal and discharge of prisoners those granted free pardon according t o t h e recommendation of the High Court3*. those to be kept i n Lunatic asylum and could be discharged by the order of State GovernmentJ1. it shalt be executed by a police officer not below the rank of Superintendent af Police appointed for this purpose according and under the Act29. In case of doubt. For the implementation of this provision. - . i n presidency towns. The prisoners Act 1900 applicable to the detention of young offenders in the reformatory school.. Part I I .Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 185 been providing a comprehensive legal frame work for the management of Prisons in India. S c.1900. If any writ. The Prisoners Act 1900 consolidate the law relating to prisoners confined by the order of court. to the issuing a ~ t h o r i t yPart Ill of the act specifically deals with priosners ~~. The Prisoners Act . 28. order. the OIC shalt refer the matter to State Government after detaining the convict or accused for the time beingJ0.. I t authorizes the officer in-charge (OIC) of a prison to receive and detain a 1 1 persons duly committed to his custody.

the State Government has power to exempt certain person from personal appearance before court after detention and to make rule in this regard36. for obtaining their evidence or for answering criminal charges. 3-4 ibid. 1955 14. If a prisoner could not brought before the court. This Act provides mechanism for the inter-state transfer . Such judicial orders shall be forward to the OIC of the prison by Judicial Officer not below the rank of District Judge as Judicial Magistrates I.34 29. In the other hand. 30 ibid. The Transfer o f Prisoners Act. Part IV. 30. the Magistrate has power to issue Commission for examination of prisoners inside the jail35. in persons. The Civil and Criminal Courts has power under the Act to require the appearnace of prisoners to give evidence or answer any question.e . 1950 b 15. 31. Sec. This jurisdiction is however limited within a State only33. Sec. The Act provides rules and procedures for the attendance of prisoners in Courts.court process3. ibid. The OIC of prison shall take the concerned person to the court and cause him to be detained in custody near the court until the completion of . 14-18 ibid. Sec. Part VI 8 Vlll 186 CENTRAL INDIA LAW QUARTERLY The Prisoners (Attendance i n Courtst Act. 32.

Sec. 37. The Prisoner8 Attepdance in Courts Act lO55. several new laws in connection to prison has coming forward at the national level. 4 & S . ibld.19963a 17. SOC. Sec. Sec. Forthcoming Laws 16. by order. The proposed lndian Prisons Bill . These are as follows: The lndian Prison Bill. The prison officers have to abide by the policy decisions of the both Governrnetn~~~. Sec 3 34. The government of the State with the consent of . After years of being tolerated with a mixture of cynicism. As a result. ibid. the other State. suggestions and r observations. 5 35. 33.of prisoners . ibid. can issue a process for the removal of prisoners from the prison of one State to another. 3 Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 187 and apathy the issue of prison reform become a prime agenda of both Central and State Governments now a days. 7 $ 36. The Transfer of Prisoner Act 1955.1996 is based on an outline prepared by the National Human Right Commission (NHRC) which has been criculated among State governments and Union Territories f ~ their comments. The bill has emphasized an urgent need for bring the existing lndian prison system up to the tune of the modern criminology and penological thinking and to effectively cater .

39. Ch.o the recommendation of the Mulla Committee a separate chapter about rights and duties of Prisoners has included in the proposed bill. 19. is prepared by the National Human Right Commission. 1996. The bill clearly specified that the administration should deal with prisoners in conditions compatible with human dignity. to refrain from making false and exaggerated allegation. contents and form. .to the changed and changing demands for the society i n transition. This Outline was circulated to various States and Union Territories. 18. PP. The Conference recommended to set up a Core Group for the finalization of : AN OUTLINE OF THE INDIAN PRISONS BILL. ibid. 2-3 188 CENTRAL INDIA LAW QUARTERLY 200 1 38. b ~n outline of the lndian Prisons Bill 1996. The Commission a National Conference on Human Rights of Prisoners on Nov. right to access of law and sped trial. to assist prison authorities in performance of their etc. duty to obey law full orders and instructions. II. It was a statement in simple prose of the ideas of the Core Group. 14. According t. to use government property with due care. These are namely. of India. to abide by prison rgules and regulation. to respect hlrman dignity of fellow prisoners and staff. 1995. This document was not legalistic in its language. right to human dignity.

It called upon the State Governments to workout definite norms for accommodation of prisoners. i t explained the untility of Article -249 and 252 of the Constitution in order to legislature Model Prison Laws at the national level and its applicability at the Sate level. For this purpose. The Prison Administration and Trsatment of Prisoners Bill 1998 20. it has . A survey on the provisions of the bill shows that. health care and fooding40. 25.While recognizing every other aspects of prison management. that the Parliament has no power to make law for the states with respect to prisons and prisoners. i n order to reform the prison administration in the country and to lay greater emphasis on the care and treatment-of prisoners in the line with the current correctional humanism permeating penal sanctions. The basic objective of the bill is to introduce a progressive legislation on prison. sanitation. it has suggested a comprehensive plan regarding residence. the Bill specificalby highlighted the need for an effective and adequate aftercare strategy and staff development mechanism in order to maintain a pragmatic prison management policyJ1. The Bill while recognizing the fact. The Bill also suggested for the establishment of an Advisory Board for the development of prisons and correctional services under the Chief Secretary of the State to advise the Government on relevgnt issuesJ2.

V.. Ch. - . 1996 as dlscussed earlier. P. Ch. ibid. bid.. XVI. Ch.. . lOS8. 25 49. The National Human Rights Commirrion hat formulated a drrlt of THE PRISONS (ADMINISTRATION AND TREATMENT OF PRISONERS) BILL. . bared on An outline of the Indian Prisons Bitl. 21-23 P 42. PP. XI1 4 XW. 6-7 41. P . -. . . .incorporate all basic and relevant points of the previous legislations and manuals on the subject of prison 40.-. ibid.

with all necessary kindness. as a pre-condition at the time of punishing the inmates4$. rehabilitation of prisoners. The Bill has given a larger emphasis on the development of prison infrastructure with necessary amenities and to afford the inmates with minimum recruitment and rights of man and the establishment and administration of prisons44. preventive detenu and person who had courted arrest on any political cause45. every officers of a prison shall all 6me avoid all contact calculated to unduly irritate or among any prisoners. The Prison Management bill 1998 aims at consolidating and amending the lndian laws in relation to prison. The Prison ~anagement Bill-19984e 22.Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 189 administration in India. prison facilities. open institutions. the proposed Bill strongly recommended the application Oof rule of national justice. drug addicted person. mentally ill persons.The Bill gives due attention to issues like. after care. andkonsideration to every prisoner.The Bill recognized some new category of prisoners like: security risk prisoners. persons suffering from infectious diseases. person involved in sociopolitical agitation.On the issue of prison discipline and punishment. The proposed Bill while recognizing the right and duties of prisoners as of the lndian Prisons Bill-1996. Accordingly. treat every prisoners with tact. humanity and strict impartiality. visitors etc. Most importantly it suggested some amendments in lndian Penal Code and Criminal Procedure Code in connection to punishment and imprisonment under various Sections4. good temper. also enumerates the duties of the prison staff. by maintain strict discipline .

II. The Prison Administration and Treatment of Prisoners Bill 1998. they could be very effective legal instruments i n order to make our archaic prison laws up-to date as well as according to the. ibid. Sac. 23 An analysis of the three aforesaid forthcoming prison laws shows that. of India on the basis of An outline of the Indian Prisons Bill. 69-71 48. This is draft bill prepared by theGovt. 1996 and The Prisons (Administration and Treatment of Prisoners) Blll. ibid. expectations of the international human right standard but. unfortunately even after years of drafting. rules and regulations in order to discharge all of the duties. 7-9 45. The State Government shall provide to every unconvicted criminal prisoners transport facility to carry them conveniently to the court of taw and adequate strength of police force shall be deptued as t o sufficient for his protection during the period when he is taken out of the prison for such pruposes51. PP. the . II. 1998 prepared by the NHRC. identifies the g r o u n d s c o n s t i t u t e prison offences and section-72 prescribes the punishment provisions for the same. 37-38 47. adolescent and life convicted prisoners53. P.U . VIII. PP. Ch. Ch. The proposed bill has given special attention for the protection of under-trial prisoners. Schedule 3. 15 8 16.Section-71. The Bill a l s o s u g g e s t e d regulations for welfare of the women. PP. It empowers the State Government to establish open institutions and to prescribe rules for the proper management of the same52. Specific guidelines are suggested t o maintain integrity in the public office holders i n the prison50. CENTRAL INDIA LAW QUARTERLY and enforce all laws. assigned to him49. 9-10 * 46. Ch. ibid.P.

VI. As discussed earlier. IV. E. P. Ch. P. 53. 52. 8-9 ibid. IV. 49. The Model Prison Manual .Bills never even introduced i n Parliament for legislation. 50. t6 ibid. Therefore.XVI. the Model Prison Manual (MPM) L. it is the high time that the Central Government should immediately take action towacds this direction without any further delay.1960 : A Survey on Implementation 24. Sec. Ch. 51. Ch. 20 .4 ibid. Ch. 4-6 ibid. PP. PP. 69(1) R. The Prison Mangement Bill 1990.

women offenders. the MPM is not of handatory in nature. adolescent offenders. The organizational set-up of the ~ r i s o n head-quarters shall be headed by a Inspector General (IG) and the IG to be assisted by around twenty types of subordinate officers including Deputy I.G. TB unit. under trial prisoners. Conrrectional Officers e t ~The~ . The Model Prison Manual is consists of 6 parts and 54 chaptes. This draft model prison manual becomes a model for different States and Union Territories of India for adopting their new prison manual. s e p a ~ a t einstitution for delingquent children.Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 191 d r a f t e d by a Committee appointed i n 1957 upon the recommendation of Dr.. 25. However. District prisons to be established for offenders convicted under minor offences and the total . The Model Prison Manual recognized the importance of the reasonable diversification of prison institution like.. habitual. Leprosy unit. the Prison and Correctional services shall be under the control of the Home Department. Part one deals with issues like : Headquarters organiration and Prison infrastructure.Some basic tenets of the Model Prison . The administration of prisons is a State subject and hence.G. and other subordinate officers ar specifically recognized i n the MPMs. professional and organized criminals. Manual are being discussed in some details below. Sub-jail and open institutions. which came into existence on 1960. Prison Supe-rintendent. most of the Indian States have fallen in the line with recommendationss4. ~ power and function of the I. ~ e c k i e s s . I t has suggested the establishment of central prison for inmates upto 750 specifically for the offenders sentecned for terms o f imprisonment exceeding two years. Accordingly.

Sac. The Model Prison Manual. social and economic difficultiessi. work. a f t e r c a r e and rehabilitation. 1997. II. stage of criminal proceeding and nature of crime etc. II and VIII. ibid.population inside the district prison shall not to be more than 54. academic. technical and vocational training. moral and cultural education of a inmates and suggested a detail course curriculum for the same5$. Ch. These are like: education.Undr chapter XXVl the Manual has highlighted that the cultural and recreational opportunities should be extended to inmates i n accordance with their. Siddique Ahmad. Criminolo@y: Problems and Perspective. Part IV .A of the MPM classified the inmates on the basis of gender. cultural activities. 1-2.part Ill. d i e t . health.of the MPM enumerates number of facilities for the Prisoners.After care and rehabilitation under the MPM is aimed to help a released person to over come his mental. P. 26. PP Q & 3-7 40OS7. age. r e l e a s e . It helps for a better prison administration and management. punishment. In the other hand. Eastern Book Comp8ny. social. The MPM provides f o r physical.institutional behavior and response to institutional regimes0. vocational. Ch.9 56. it has strongly recommended that the prison work and training programme should be fundamentaliy integrated with stafe and national economic policies and suggestdd for payment of appropriate wages t o prison w9rkersS9. An analysis of the baisc provisions of the M ~ M * s h o w s . s a n i t a t i o n and hygiene. P. 150 55. leave and emergency . Lucknow.

13-14 58. 150 V 60. ibid. 12 h 1 . 134-38 59.that it not only enunciate principles for an efficient managment of prisons but also lay down scientific guidelines for correctiye treatment of various classes of offenders2. 159 61. ibid. . Report of the All India Committee on Jail Reforms. Sec 1. Ch. P. P. 138 and Sec. very few could deny. XXXVlll. ibid. P. C .2 & 3 PP. Ill. Ch. C . P. XXIII. However. 16. ibid. the fact that the MPM is already half a centruy old and the practice and experience shows that the it lacks broad human right issues and judicial guidelines recognizing the basic human rights for prisoners i n order to make them 57. PP 270-75 h 62. Ch. PP. XXI . I & 1. ibid.

Karnataka Kerala Karnataka Prison Manual. But whatever may be the case: the MPM has served as an effective guideline for the development of state prison manual in different states and Union Territories science its inception. Vol I & I1 Kerala Prison Manual Keral Prison Rule Goa Prison Manual 1965 Daman 8 Diu Tamil Nadu Tamil Nadu Prison Manual -3. Name of the State Name of the Instrument Year of No. 1983 . Inception 1. The table below identifies the various State Prison Manuals adopted on the light of MPM 1960. -5. -4. 2. table -1 A list of State Prison Manuals S.VOI XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 193 correctional institutions rather the house of captives.

Andhra Pradesh 1 hdhra Pradesh Prisons Rules I I I 1977 7.6. 1 Jammu & Kashmir Manual for the Superintendent 2000 Management of Jails in the state of Maharastra Jammu & Kashmir Maharastra Prison Manual 1979 Madhya Pradesh Madhya Pradesh Prisons Rules Bihar Punjab I Bihar Jail Manual 1990 I Manual for the Superintendent and 1 Management of Prisons in the punjab( Delhi I Delhi Prison Manual 1 1999 . 9. 1996 I 12. 1968 10. 11. and -8.

29 The UN standard Minimum Rules for the Treatment of Prisoners was adopted on 30m Aughust 1955. there must be complete separation between the prisoners detained under civil law and criminal offences. the corporal punishment. 31. It states that. It has recommended that. On the issue of prison offences and punishment. It says that the men and women shall be detained in separate institutions.1955. . no prisoner shall be punished unless he or she has been informed of the offences alleged against him and given a proper opportunity of presenting his defense. in-human or degrading punishment shall be completely prohibited a s a mode punishment as disciplinary action in the Jail. I t consists of five parts and ninety-five rules. colour. The standard rules gives due consideration to the separation of the different categories of Prisoners. All such punishment including reduction in diet shall never be inflicted unless the medical officer has examined the . . the standard minimum rule provides clear rules. In the same time there is a strong need of respecting the-religious belief and moral precepts of the group to whicha prisoner belongw.196 2001 CENTRAL INDIA LAW QUARTERLY The UN Standard Minimum Rules . language. birth or other status. 30. sex. The under-trial prisoners shall be kept in-separate from convicted prisoners. Part one provides rules of general applications. Further more. The UN standard Minimum Rule also made it mandatory to provide separate residence for young and child prisoners than form the adult prisoners i n the Prisonss. political or other opinion. national or social origin. property. by placing in a dark cell and all cruel. I t declares that there shall be no discrimination on grounds of race. religion.

197 prisoners and certified in writing that the prisoner is fit to *sustain itse. Rule 6(i) 65. The UN Standard Minimum Rubs for Treatment of Prisoners .64. news papers and writing materials and other means of occupation at his own expenses and right to get free legal aid. right to procure books. ibid. from the beginning of a prisoners sentence consideration shall be given to his future after release and he shall be encouraged and assisted to maintain or . 33. Training qf Prison Personnel 34. q 32. While recognixing the basic principles of punxing the ba ic principles of pun the purpose of punishment is not to torture a person but to reform him and ultimately making him a good citizen. I t says that.ll and Rule 8 Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA. proper selection and . The . To achieve this objective. 79-81 of the Standard Minimum Rule provides for social relations and after care provisions. are recognized b y the UN Rules7.UN Rule has given special attention to under trial prisoners and rules has been provided for their special treatment. It has recognized that un-convicted prisoners shall be presumend to be innocent and shall be treated as such. The UN recognizes the fact that. A number of rights like: right to separate detention. right to have own food and own clothing.1955. Rule. right to have opportunity for work. Par . establish relations with person outside the institution as may promote the belt interacts of his family and his own social rehabilitati~n~~.

idib. 1955 regarding 66. Hence. Rule 60 and 79-81 . Rub 27 6 28 67. the UNs Congress on the Prevention of Crime and the Treatment of Offenders have adopted another resolution on 1st September. IbM. ibI4 Rule 84 to 93 68.training of prison personnel is a pre-condition for proper implementation of prison laws and to ensure the minimum human right norms to the prisoners.

It suggests various guidelines regarding treatment of e.198 CENTRAL INDIA LAW QUARTERLY Selection and Training of Personnel for Penal and Correctional Institutions. t h e r e has been a n u m b e r o f international law instruments those indirectly provides rules and recommendatidns for ensuring the human right. 36. investigating agencies. B e s i d e s t h e above. The Resolution prescribed a comprehensive mechanism for selection of right man for right job i n prisons and their proper trainings9. prison officers and the judical bodies. Other International Initiatives 35. Sept. The International Covenant on Social. Resolution on Selaction and Training of Personnel and Correction Institutions. .very type of person detained by the government authorities including the police.for every human being including the prison population at the international level. the UN Resolution on 29 August 1955 on Open Prison and Correctional Instituion provides rules and guidelines for the establishment.In the other hand.1966 recognizing of the inherent dignity and the equal 69. and administration of open priosns and correctional institutions. The UN Congress on the Prevention of Crime and the Treatment of Offehders. The Resolution considers that the open institution marks an important step in the development 0. modern prison system and represents one of the most successful applications of the principles of the individualization of penalties with a view-to social adjustment70. Economic and Cultural Rights . Among the other international initiatives -on the subject the United Nations General Assembly Resolution on Body of Principles for the Protection of All Persnns under Any Form of Detention or Imprisonment 1997 i s a comprehensive documents. 1..

the Covenant make the State parties obliged to ensure that. 70. A variety of rights of the . The Covenant consist of 31 Articles. No one shall be arbitrarily deprived of his life. the International Covenant on Civil and political Rights . The resolution consist of 24 articles. VOI XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 199 and inaliehable rights of all members of the human family as the foundation of freedom. violated.Further more. cruel. The UNs Congress on the Prevention of Crime and the Treatment OF Offenders on Open Prison and Correctional Institution of 29th Aughust 1955 consists of S articles recommending various guidelines for the establlshment of open prison and correctional institution while highlighting the objectives of such institutions.1966. recognizes that. in every circumstance the fundamental rights of the human being should not be . special right of juvenile prisoners and pregnant women72. On the other hand. justice and peace in the world71. is a broad based document highlighting the basic fundamental rights of human being. I n the same time other international legal instruments like : the Univerrsal Declaration of Human Right 1948 and the - . under article . dealing with variety of Issues regulating prison management.1955.. The basic slogan of the Covenant is that.6.under trailed prisoners are also identified by the Covenant7*. every human being has the inherent right to life to be protected by law. in humane or degrading treatment or punishmentt3.%The Covenant strongly recommended the abolition of death penalty and recognized the right of prisoners to seek pardon. no one shall be subjected to torture.

Articb -7 74. Until and unless the Sovereign States did not ratified and implemented the same at the domestic level. See Articie . Ibld.14 of the International Covenant on Civil and Political Rights . while recalling all previous developments on the subject provides a better frame . T C Preamble. It can be concluded that. Article 6 of the International Covenant on Civil and Political Rights . Social and Cultural RiQhts 1966. although the international law regime for prison reform are very important but its implementation is totally depends on the mercy of State parties.1966 . the International Law on the subject consists 71. the aforesaid international legal instruments has no legal value. work for maintaining the human right norms for everybody. i t would to worth noting that.1866 73. Part Ill.1976.Convention Against Torture (CAT) . In this backdrop. 72. international Covenant on Economic.

while laying down the constitutional dimensions and rights available to prisoners and the approach to be adopted in dealjng with j5.e. MiHal Publications. Delhi (1986). The existing judicial and administrative trend in lndia on prison reform is based on the fundamental prinicples of the Indian Constitution and Judical decisions by Supreme Court of lndia and different High Courts. These are like : Article. P. Though. Articl. as these lacks an effective implementation mechanism. Article. In a series of land-mark judgements the apex court have. 14-Right to Equality. these rules to be considered by the national courts as merely guideline for the interpretation and l e g i ~ l a t i o at~ ~ domestic level. 22. Naresh Kumar. Using the newly established doctrine that one can be deprived of his personal liberty only through a procedure which is fair. 19-Right to Freedom of Speech. . But. n the G. T h e Existing Trend i n lndia : Humanization of Criminal Justice 37.200 200 1 CENTRAL INDIA LAW QUARTERLY of certain principles of criminal justice incorporated in the form of rules those are soft law in nature. .Protection against Arrest and Detention in certain 38. just and reasonable. the Constitution does not provides any specific provisions regulating right of prisoners or prison reform but certain Fundamental Rights generally applicable and even recognized by the Court of Law for protecting prisoners right. Constitutional Right of Prisoners. 17 . 21 Right to Life and Personnel Liberty and Article. the Judiciary has been taking steps for liberalizing the administration of criminal justice77.

PM Bakshi. Jain. The constitution of india. Ch. Universal Law Publishing Pvt. P 26 . 77. Ltd. new Delhi.) has been felt in Prison Administration also as cited in Verma S.. and Kusum. PP. An immediate beneflclal impact of Menka Gandhis Case (AIR 1978 S. The Supreme Court and Fundamental Rights. I.C. K. Fifty years of the Supreme Court of india : Its grasp and reach Oxford University Press.MP. 11-68. Deihi (1097). . 2000.76.

40. some important cases of the Supreme Courts and High Courts are being discussed in some detail below. Goijaln Vs.pensable for the development and protection of the creative faculties of human beings. 544 (1981) 1. P. K. (1978) 3. State of MaharastraTE4. I P. SCC. The growing awareness about the right of prisoners among the prisoners themselves and the others those engaged i n the movement of civil liberty has marked the prison administration i n tndia during last 30 years. In A. invoked article 21 to protect and shield prisoners from prison vices78. 608 . Prabhakar Pandunga V State of M a h a r a ~ t r a ~ The Prisons Administration and Treatment of Prisoners Bill. A. T h e right to freedom of speech and expression i s indis.Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 201 various aspects of custodial justice and administration. Ch. In Frances Coralie V Union Territory of DelhiIa2the court has recognized the detenus right to meet with friends and relatives under the scope of Article 14 and 21 of the Constitutions3. On the basis of issues in relation to prison. appeal and recessions1at the cost of the State. those identified in the judicial decisions. The Court also directed the government to assign a competent council for. Prisoners Rights 39. I n MH Hoskot V State of Maharastrat7O and Frances V Union Territory of Delhisothe right of access to law and legal facility has recognized by the Supreme Court of lndia. Supreme CourtCases (SCC) P. 1998.2 .the prisoners defense.

SC. 424 . Ranjan Dwivedi V Union of lndia AIR. P. that H will lower the human dignity. P. SC. P. SC. But the limitation should not be such. (SC). 753 The Court observed that of course. 1983 (SC) AIR 1981. 1950. AIR.Also see Khatri V State of Bihar AIR 1984. 27 AIR. 1966. the magnitude and content of this right would depend upon the extent of the economic development of the state.

202 2001 CENTRAL INDIA LAW QUARTERLY and Prabha Dutt V Union of Indiaga6 court has recognizing the . I n t h e cases o f Amir Shad Khan V. Upadhyaya V State of Andhara P r a d e ~ h the .D. and R.Some of the important rights of the prisoners are like : right to fair treatment and dignity. the court of law in lndia has been recognizing a broad range of rights of the prisoners i n the light of recent human right initiatives. Kewal Pati V State of UP. In the present case damage i n the way of compensation was awarded to a victim for wrongful imprisonment. publish books. right to basic human needs. and right to the principles of nature justice. Citizens for Democracy V State of Assam. 41 In Rudal Sah V State of BihartE7 Supreme Court while the broadening the doctrine of Act of State (the defense available i n favour of the State not to pay compensation to victims due to State action) recognized the right o f compensation t o prisoners against arbitrary arrest and detention. right to equality. Hence forward. this right i n favour of prisoners under the scope of the Article 14 and 19 of the Constitution of India. . Murti Devi V State of Delhi. articles and journal and to give interviews to journalists and legal advisors.Supreme Court of lndia identi~~ . write. ~ e c e n Developments t 42. the inmates get an exclusive right to read. etc. An analysis of some of the landmark judgements of the honourable Supreme Court of lndia and different High Courts regarding Prison reform since the early 1990s shows that. Hmingtiana. 43. etc.L.

P. . 1096 88. (1991) 4 SCC 39. The court observed 86 SCC. (2001) I .(1955) 2 SCC 743(1955) 3 SCC 800. 1 87. Sac I 437.fied the right to judicial remedy for prisoners. AIR 1983 SC. 1982. (19Q8) 9 SCC 604.

V. the prison facility like remission and parole should be exercised on the basis of doctrine of equality by the state. the right to judicial remedy flows from the constitutional guarantee enshrined in Article 14. Right to fair treatment.VOI XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 203 that. I n the cases of Citizens Democracy V State of Assam. i t is observed that the right to dignity and fair treatment under Article 21 of the constituion of India is not only available to a living man but also his body after his deathg0. the authorities are required to act according to the law but the law has been unfortunately respected i n its breach. If not. and State of A. I n the other hand. and P. In the same time the court said that. Accordingly. LJ 2016. 46.P. then the High Court can quash the unequal facility granted by the State in favour of any group or individualg1. the history of liberty is the history of procedural safe guards and hold that. Gajbbide Vs State of .D. The Prisoners right to basic human needs has recognized by the Kerala High Court in the case of A Convict Prisoner in . Challa Rama Krishna ReddytsS. 44.the Central Prison V State of KeraIalg2in which the court issued 89. the court held that the power of the police and prison authority to ensure discipline in the custody and to check the anticipated escape. It said that. 20. an inmate is subject to fundamental rights and Judicial guidelines. AIR 2000 SC 2083 and also see High Court decisions like ~ a l l a Pareddy Prajanna V State of AP. 21 and 22 of the Constitution. the Supreme Court has reiterated its voice against unneccessary restriction on the Prisoners right to personnel liberty. (1995) 3 SCC 743. 1994 Cr. dignity and equality has been recognizedby the Supreme Court and various High Courts.

21 of f the Constitution. Paramananda Kartar V Union of India. 90. and to broaden the s w p e of educational and recreational facilites. State of MP V Mohan Singh. the Indian Judiciary has recognized the natural rights of prisoners as inalienable right and compelled the government authority to act and practice accordingly. free legal aid. Administration of prison instjtutions and maintenance of discipline i n jails i s subject to the Principle of Natural Justice. 204 CENTRAL INDIA LAW QUARTERLY 200 1 direction to the State to build sufficient number of prisons for proper accommodation to effectively implement segregation. 47.in the Jail. 6.maharastra 1994 Cr W 2555. payment of wages to the prison labour. These cases has resulted i n law taking on a new identify as an instrument of justice responding to the needs of the society as steps towards lowering of the barriers between the common man and courtQ6. Speedy Trial 48. Union of IndiaQ4 and Hussainara Vs State of BihaP5 o b s e r v e that the speed trial is an integral and essential part o the fundamental right to life and liberty under Artcle. the Supreme Court of lndia i n the case of Sunil Batra Vs.According to the court. (1995) 3 SCC 248 91. (1995) 6 SCC 321. In this context. to appoint proper prison staff. The prison authorities should take action and issue order only with the due compliance of the principles of Natural JusticeQ3. it is a . Time and again. to rationalizing parole and remission policy. The long pre-trial incarceration of an accused person in lndia isa dangerous aspect of our criminal justice system.

The problem of Under trial: Hussainara Khatton and Public interest litigation. LJ 1884. New Delhi (2000). 1979. 1994. AIR. Case I. 1979.crying shame upbn our adjudicatory system which keeps men i n jail for years on end without a trialQ7. 197 97. Saga Publication. Ramaswamy V The govt.. AIR. 1882. a developed jurisprudence 93. Case 1 . Prison. I999 Cr LJ 1433. 1167 .G. Keemat Singh V I. SCP. 9 Pushpa Kapila Hingorani. punishment and the Prison: Indian and International Perspectives. SC.P. SC. 1585 1 95. P. 1979. 94. 1360 96. P. AIR. of A. 1980. SC P. Ranl Dhavan Shankardass. ch. AIR. Kadra Pahadiya V State of Bihar. 1997 Cr W 3256 and Sarjerao Pole V State of Maharastra. Chandigarh. Cr. While laid down liberal rules for bail and bond it insisted that. P.

specific provisions about the scope and power of the prison officers for the purpose. some of themode: of preserving discipline like : solitary confinement. There is no denying to the fact that maintenance of security and discipline in prison is an important ingredient of the smooth functioning of prison administration. has provoked much debateto0i n the background of the growing allegation of human right violation. 49.ommendable by the agreement of the parties. AIR 1978: SC: P. there is no reason t 4 permit the same punishment to be smuggled intothe prison system except in extreme case 98. the Prison Act 1894 and the Model Prison M-anual has prescribed . I n brief. 527-520 _ .Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 205 of bail is integral to a socially sensitized judicial processga. production of accused and assisting the prosecuting agency will facilitate speedy trial. i t can be concluded that. On the other hand.. and dehumanizing the cqurt said that. C. In Sunil Batra V D e M Administrationlol the Supreme Court of lndia laid down a detail guideline regarding the practice of solitary confinement i n Indian Jails. . In cases of offences c. Hence. bar fetters and hand cuffing etc. the proceedings may be terminated by recording the compromise. and the accused be releasedsg. recognized that separate cadre of investigation agency enjoined with the reponsibility of production of witness. Babu Singh V Uttar Pradesh. Bar fetters a n d Handcuffing 50. Solitary Confinement. Terming s o l i t a r y confinement of extremely cruel. t h e c o u r t has . The lack of coordination between the investigating and the prosecuting agencies should be rectified.

494. 2001.99. 825 . Section 73. 46 of Prisons Act 1804 recognizes solitary confinement. 24 April. Syed Mathani. The Hindu. 74 of IPC and Section 30.101. New Delhl. AIR 1981 (SC). But the Law Commission of lndia in its 42 Report favoring the abolition a of the same. 100. P. H. The right to speedy trial. also see Kishor Singh V State af Rajasthan. . SCC (1978) P.

The apex court in number of cases iaises concern against police torture. Basu V State of West Bengal the Supreme Court has observed that the power of the executive should not only be derived from law but also the same should b e limited by law106. in the case of Charles Sobhraj V Supdt. The court observed that. the third degree method being used by the police in custody or prison is violative of Article 21 of the C o n s t i t ~ t i o nCustodial death and violence ~~~. the court of law observed that arrest should not be made merely on suspicion but after attain reasonable satisfaction about the genuinenes of the complaint107. under trials and accused personslo4. and brutality on prisoners. 1978.In Kishore Singh V State of Rajasthan the Supreme Court has held that. In the same time. In D. On the issue of hand cuffing the court described the practice as inhuman and over harsh. 930 . The supreme Court recognizing 102. imposes avoidable torture and reduces man to the level of animal would certainly be arbitrary. Central Jail and Prem Shankar Shukla V Delhi Administrationlo2 the court hag restricted the use of handcuffing and fetters for the safe custody of prxioners in jail. to be employed only in exceptional circumstances and accordance with the judicial guidelineslo3.206 200 1 CENTRAL INDIA LAW QUARTERLY of necessity. P. D. SCC. While recognizing the fact that arrest can cause irreparable injury to an individuals reputation and self-respect.. Torture 51. Hence. of Prisons Act-1894 is unjustified. section36 regarding use of fetters. is one of the worst crime in a civilized society governed by rule of law. 104. the treatment of human beings which offends human dignity. Criminal Law Journal (1980). K.

s Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR I N D M 207 the principle that a person do not become non-person after = c o n v i c t i o n and s e n t e n c e d t o j a i l . 52. SC 1349 . Hence. AIR 1981. 1960 105. I n the cases like: State of Maharastra V. Revikemt . authority. SC 625 106. . cruel punishment ought not to be imposed except the gravest of cases subject to judicial scrutinylll. 610 107. Raghubir Smgh V State of Haryana. I n Bachan Singh V State of Punjabllo the court observed that the inhuman and cruel punishment infringes the fundamental human rights guaranteed under part Ill of the Constittuon. Kartar S~ngh Stale of V Punjab.Hence. AIR 1997. Supreme Court agreed with the view that i n the case of proolonged detention on the ground of delay i n execution of death sentence i s a ground to invoke Article 21. 1994 SCC 56. The court has recognized the right to fair treatment and dignity of the prisoners as a tool against the alleged acts of torture by police and jail .103. e v e n a f ter imprisonment he is still entitled for Fundamental Rights in order to maintain his dignityto8. AIR 1981 (SC) 1675 104. Nilabati Behera V State of Orissa AIR. I n Sher Singh V State of Punjab log. 1993 SC. The issues of delayed execution and cruel punishment has repeatedly raised in various courts. Joginder Kurnar V State of U P AIR 1994. SC. AIR 1980 SC 1087 8 1088. Also see Sunil Batra AIR (1978) and Khatri V State of Bihar.

21 of the Constitution. N.and R. there are movements i n order t o eliminate free labour rendered by prisoners. In the same time. SC. Prison Labour and Wages 53. Upadhya V State of Andhara Pradeshll* the Supreme Court hasheld that every prisoners are entitled for the right to fair treatment under the scope of Article 14. Prison labour i n India always viewed as a mode of punishment. AIR 1981. Prem Shankar V. Delhi Administration.20. SC 898 Also see Trivenal Ben V State of Gujrat. SC 746 1991.. AIR 1980. Francis Coralie V Union Territory of Delhi. 6 SCC 321 AND 2001.V. SC 465 AIR 1980. Vathees Waran V State of T. AIR 1983. E. AIR 1989. 1 SCC 437 . SC 142. sc 1535 AIR 1983. The Indian Judiciary promptly reacted towards eliminating free labour T.D. 361.

it can be concluded that. Neither they can be taken away by any arbitrary power. nor gifts given at the whim of a ruler or a government. It also directed all the State Governments to take a policy decision on the matter without any further delay and recommended that.208 2001 CENTRAL INDIA LAW QUARTERLY f V practices in jails. nor can they be forfeited because an individual has committed any offenceor broken any law. The problem of human rights of persons in custody is the main theme of prison reforms in the country today.P. the current trend on prison reform in lndia is guided by the following considerations: + There are certain rights and freedoms those are f u n d a m e n t a l to h u m a ~ x i s t e n c e .l14. They can not be derfied. In this background. in the case of state of Gujarat V High Court of Gujarat1. the Supreme Court of lndia while recognizing the fact that the jail authorities are enjoying by law to impose hard labour on prisoners who have been sentenced tp rigorous imprisonment. The court of law analyzed the scope of section 53 of the Indian Penal Code and said that section talks about hard labout* but not free labour for the rigorous imprisonment115 Recently. + Human right initiatives and obligations under the constitution of lndia as well as international conventions . until such decision. every prisoner must be paid wages for the work done at the rater or revised rates at the government concern fixes. the Supreme Court of lndia held that the prisoners are entitled to fair wages for the work done by them.16. 54. They a r e n o t e privileges. In the case of Mohammad ~ i a s i d d i n State of Andhra Pradesh13 and Dharambir V State of U.

7. 1998. 1979.are now an important feature of the day to day conduct 113. SCC 287 114. 1977. Prison Reforms Enhancement of Wages of Prisoner. AIR 1983 Kerala 261 116. 3 SCC 645 115. SCC 392 .

A prisoner should have human rights i n order to learn and respect the human rights of others after release. Human rights are a basic element of correctional justice based on assumptions that hate-the crime.Vol XIV FORMULATING A PRAGMATIC PRISON POLICY FOR INDIA 209 of the government in order to promote and to protect a wide variety of human rights. A p e r s o n c o m i n g t o p r i s o n does not become a non-person. 118. but not for the p ~ n i s h f n e n t . Ministry of Home Affairs. Prisoner is sent to prison as a punishment. for making them useful citizens. self-supposing. Govt. Debarring a prisoners from human rights would pose a direct threat to our own humanity and civilization. Prison Administtation in India. Dr. Data collected from the Bureau of Police Research & Development. Prison regimehelp the prisoners to lead law abiding. reform and socially rehabilitated life. of India. there i s no denying to the fact that an effective and adequate prison reform policy i n the light of fast developing and widely recognized principles of human rights i s one of t h e most unfailing tests of the 117. Hira Slngh. Prisoners have all constitutional rights except those limited due to their imprisonment. must find a place in our national plansIi8. Contemporary Issue PP. In this context. New Delhi. ~ Conclusion Programmes for reformation and rehabilitation of offenders. 112-122 as . Prisons are no more considered as a House of Captives but they are correctional institutions. not the criminal.

Saga Publications. Indian and International Perspective. edited by Rani Dhavan Shankerdev. New Delhi. . 2000.cited in the book Punishment & the Prison.

smuggling. The changed jurisprudential towards prison system i s based on therapeutic approach rather deterrent theory of punishment. theft. alcoholism.c o m m ~ n l The. To achieve this end. The standard minimum rules for treatment of Prisoners of the United Nations could b e an important tool towards this direction. The suject of prisons and allied institutions should be included in the Concurrent list of the Seventh schedule of the constitution of India121. The government have to promptly make endeavor for the Formulation of New Model Prison Manual by replacing the archaic model prison manual of 1969. However. The Directive Principles of State policy on prisons should be formulated and be embodied i n Part IV of the C o n s t i t u t i ~ n ~ ~ ~ . officials. All the Acts pertaining t o -prison . T h i s should be adequately r e f l e c t e d i n the proposed legislature on prison reform. legislature. violence. the state have to undertake legislative reform as a first step towards achievirig the goal. even after 50 years of independence the conditions of prison and prisoners i n lndia appear not to have improved wuch. un-constitutional punishment by way of solitary cellular life and transfer i n other jails are not u n .210 2001 CENTRAL INDIA LAW QUARTERLY civilization of every country. law ~~ has an important role to play towards achieving the noble goal of maintaining the human right standard in Indian Jail. The role of judiciary. press and most importantly the participation of people cannot be sidelined for formulating a comprehensive prison management policy at the national level. There is large network of criminals. and non-officialsin the prison: the house of correction and drug racket. The proposed Model P r i s o n M a n u a l s h o u l d b e s t r o n g l y on t h e l i n e o f t he recommendation of the All lndia Jail Reform Committee. 56.

Justice Krishna lyer in Sunil Batra V.119. Chapter XXIX. 121. Supreme Court. 1980-83. ibid . Summary of Recommendations Report of the All lndia Jail Reform Committee. 120. Delhi Administration All lndia Reporter. PP 365-66. 1980. P. 1586.

lndia could be a model state for most of the Afro-Asia developing countries in the field of prison reform in the new millennium. The domestic laws iike: Young offenders Act. 4Proper recognition to Indian prison service and cadre1 career planning for prison officer at the nattonal level. lndian prison could be the center for correction by providing mental.: etc Penal Code andcrime Procedure code should be amended . Children A c t Habitual Offenders Act. The State governments and Union Territories should take prompt action to frame rules under the prison statute. Borstal School Act. + Development of correctional training in order to have . Pxobaticn of Offenders Act.n the light of the provisions of the new Model prison manual arid All lndia Jail Reform Committee Report. Juvenile Justice ActTz3 and the lndra. The article hopes that by implementing all the aforesaid suggestions.VOl XIV FORMULATING A PRPGMATfC PRISON POLICY FOR INDIA 2 i administration should be complied and a new uniform and comprehensive legislation should be enacted by the government of lndia for the entire country. The government of lndia should prepare a Model Bill to be adopted by all the States and Union Territories for this purpose722. mbtal and vocational training. The study i d e n t i f i e d c e r t i a n p r i o r i t y areas for p r i s o n r e f o r n s as enumerated below: 4Need to provide adequate exposure to prison staff both at the national and international levels. + Finding the best prison practices and implementing the same in the lndian-context. so that the offenders can rehabr!rtate themselves after their release from prisons and to enjoy !heir normal life as a sensible citizen of this great country.

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