Indian Prisons — Rhetoric and Reality

By M H Ahssan

The portrayal of prisons in our reel world is that of a four walled, impossible to exit station. It is often a depiction of two contrasting facets: one showing that the convict is a dreaded criminal who is just too reluctant to change, and the other demonstrating lots of innocent masses caught in a crime jam by an archaic criminal justice system. While on one hand prisons are shown as places with dehumanising conditions, at other times they are painted as huge fortified walls of concrete with abundant space for song and dance where there is no trace of disease and filth. But in contrast, the grave reality of prisons and their state is immensely numb and not dealt with in a broader term with reference to the purpose they were construed.

Old archaic laws

According to the Prison Statistics Report 2000, India has about 2,48,115 prisoners in total to the available capacity of 2,11,720; Uttar Pradesh topping it with 49,885 inmates. Prisons in India are still governed by the century old Prisons Act 1894 and the Prisoners Act 1900. The application of a century old law in the changed socio-political scenario is absolutely bizarre, and is out of tune with the entirely transformed picture of human society. During the past some decades several organisations, intellectuals and committees set up for jail reforms have expressed their views on the importance of reviewing the Act which is not comprehensive.

The new thinking on prisons has been duly summarised by the dictum that convicted persons go to prison as punishment and not for punishment (Charles Shobraj vs. Superintendent, Tihar jail, AIR 1978, SC 1514). The condition of a substantially large number of prisons continues to be bad, dehumanising and violative of the residuary rights of inmates. There has been a plethora of recommendations for the improvement of these conditions both from recommendatory bodies and from the apex judiciary but a large chunk of these recommendations has not seen the light of the day.

Overcrowding is the greatest practical hindrance to efforts of reforming the Indian prison system. Some prisons house as much as three times more inmates than their capacity. Prisons in general are housed in dilapidated age-old buildings with its management in the hands of an untrained, disgruntled, over-worked and insufficient staff. Constraints of inappropriate working conditions weigh over opportunities for correctional work.

Inhuman conditions

During my recent visit to a prison, I saw what I had never expected to see. Even though the building stood fortified, it did ask for much do-up. The pillars were old enough to have seen four generations of prisoners. The barracks looked unkempt and least maintained. One single cell housed three times the capacity making it too uncomfortable for the inmates to even move about, apart from the fact that they slept in shifts. Those small coops, called cells, contained people from all walks of crime — petty thieves, murderers, bride burners, scamsters, anti-socials and a whole sty of undertrials.

The most evident showcase was the lot who thought they were at the wrong address. When I asked one of the inmates what he was there for, he said "I don't know, I was having my lunch at home when they arrested me on the ground of murder." Who the victim was, he never knew. One of the prison staff said that cases like these were rare.

The next corner of the prison housed women prisoners. According to the Prison Statistics Report 2000, women inmates constitute 3.42 per cent of the total inmate population in the country. In India social customs make women ex-offenders more vulnerable to suspicion and rejection. The stigma of having been in prison has more adverse after-effects for women than for men. They are always looked down upon by everyone — their family members, the prison staff, as well as society. They are forced to adapt and survive in this unfriendly and indecent ambience.

Women are disowned by their families and there is always lack of a helping guardian. As a result many of them are confined as undertrials for want of a surety. Being uneducated and lacking legal awareness they are often given unduly long detentions.

Out of the total inmates just a few seemed to repent their wrongdoings and were seriously exploring legal ways to exit for good. They consulted private lawyers who charged hefty and unaffordable fees and did the least to solve anything. The lawyers commissioned under free legal aid never visited and never cared for the inmates.

The condition of prison staff is none the better. They have a long story about their own deplorable existence. Most of them have been stagnating in the same position for more than ten years without any opening for promotion or change. Due to terrible paucity of staff, those supposed to be on security duties are on ministerial tasks. Salaries and other service conditions are unjustifiably lower than those of their counterparts in other sister organisations. Even training which is so essential for jobs in correctional institutions is conspicuous by its absence in most cadres.

It is time to think of better networking, effective prison reforms and their true application, education and overall societal contribution to the improvement of prison conditions. We must seek solutions both in the prisons and outside in society. Public funds now being wasted on unhealthy institutions called prisons need to be better spent on sensible pay-offs.

Rot In The prisons

The level of barbarism in respect of a nation's treatment of its prisoners is perhaps more uniform than we Indians expect. Developed and developing countries alike treat their convicts with a kind of depravity, which speaks volumes for the nature of contemporary civilisation and their attitudes towards the human person.

Applying even the most retrogressive standards, Indian prisoners are the pits — a level of perversity matched only by our pious, moralistic and sanctimonious preachings abroad. In the land of Gandhi and non-violence, prisons remain depraved and brutish. Internally the prisoners rot.

Rape, buggery, torture, custody without legal sanction, bars and fetters, detention far in excess of the sentence, solitary confinement, lunacy, the brutalising of children, women and casuals, drug trafficking and prostitution rackets run by the superintendents are but the daily routine of prison life. Pulling out eyes as in the Bhagalpur blinding case or the pushing of batons up the anus of prisoners as in Batra's case is perhaps Sunday's schedule.

 

If the complete absence of human rights moorings in India has escaped notice, it is only because the State has through law and lathi shrouded the prison system with an iron curtain through which only those may pass who have no hope of returning. And while the press, the public and social activists are debarred, the Courts turn a blind eye. While crores of rupees are spent in esoteric research of dubious standards with manuscripts thrown into the dustbin after the degrees are awarded, not a thing is done about prison research. As a consequence, the criminalisation of the prison administration proceeds apace and is the main factor contributing to the hardening of the offender and to the inmates' physical and psychological breakdown.

Apart from the human rights issue, the Indian State has so little intelligence that it cannot comprehend that in purely bourgeois terms it is neither economically feasible nor practical to have such a large part of the population fettered and decapacitated.

Judicial reforms have been slow - too slow. In the 1980's it merged with the forenso-personal history of one man whom all associated with the struggle for civil liberties and human rights must stand up and applaud - Krishna Iyer, a former Justice of the Supreme Court who even after retirement championed the cause with renewed fervour. His decisions describe his struggle against the tide of foul precedent, colonial prison regulations and a defiant lower judiciary not only unwilling to accept his views but also uniformly subservient to the prison administration and the police.

In the Seventies and early Eighties he transformed Indian prison jurisprudence and a few other judges inspired by him contributed to this change. By the time of his retirement in the mid eighties, he had led India through a decade of forensic change. But he left a sad man noticing in powerless retirement the flouting of his decisions by the decision of the criminals in uniform. The passage of time settles all things and India returned to its normal state - the eccentric has passed on.

The ebb tide set in. Whereas in the cases of Hussainara Khatoon and Motiram, the Court had spoken against high bail amounts for poverty stricken accused and had recommended their enlargement on bail on personal bond and even without sureties, today millions of people are jailed pending trial because they are either too illiterate to apply for bail or too poor to furnish the bail amount. Notwithstanding Hoskot's case legal aid remains on paper with more money spent on committees, reports and seminars than on legal aid itself. Sheela Barse's case likewise indicates the flagging interest in public interest matters.

Now the right of the press to interview prisoners has been couched in a language as vague as to practically operate against the press. Despite Khan's case, prisoners are often denied access to newspapers and books. Despite Walcott's case the awarding of prison punishments is like the emperor's fiat. Despite Mallik's case children are brutalised on par with adults. The International Year of the Child saw seminars organised and films made but no children released.

All the recommendations laid down in Batra's case and Kaushik's case are ignored. Overcrowding has increased many times over. The Board of Visitors is a bloody farce. The Prison Manual and other regulations are kept top secret and even defending advocates find it impossible to lay their hands on one. Liberal visits by family members depend on bribe money.

The ombudsmanic task of policing the police that Krishna Iyer advocated is now an impossibility. The standard minimum rules for treatment of prisoners are not only not followed but the rules cannot be found, Section 235(2) 248(2) of the Criminal Procedure Code in respect of more humane sentences is overlooked despite Giasuddin's case and Santa Singh's case. Despite Varghese's case poverty stricken, indigent debtors are jailed. Notwithstanding the Prison reforms enhancement of wages case convicts perform slave labour on notional or illusory wages.

If, as in Nandini Satpathy's case, the methods, manners and morals of the police force were a measure of a government's real refinement, ours would be a tyranny. Censorship of correspondence contrary to the directions in Madhukar Jambhale's case, the solitary confinement contrary to the directions in Sunil Batra's case thrive. Likewise, bar fetters are commonly used. And the accused are tied together like cattle and paraded to Court through the streets in defiance of the decision in Shukla's case.

The little Hitler found lingering around Tihar Jail in Batra's case is now fully grown and well fed. Despite Sah's and Hongray's case compensation is rarely awarded. In the face of Veena Sethi's case, mentally disturbed persons are maltreated and rendered insane. The 'hope and trust' placed in the prison administration and the police by the Supreme Court have turned out to be a joke. Even after Barse's case women's rights are not implemented. Despite Nabachandra's case remand is done as a matter of rote. Nothing changes in India - ever.

As we age, Krishna Iyer's passions recede in the memory of bench and bar. A new conservatism has taken over. Once again judicial apathy and unconcern fuel prison sadness.
His decisions are largely, therefore, of academic interest, perhaps the only merit of the decisions being, as Justice Hughes once said, that they are, "an appeal to the brooding spirit of the law (and) to the intelligence of a future day."

They display overall certain common trends and characteristics. Firstly, that judicial standards in human rights are uniformly pathetic and secondly that judges in India are universally unwilling to punish prison officials and policemen even in the face of cast iron evidence of major offences committed by them.

Judicial reluctance, administrative callousness and the absence of any State recognition of white collar crime, takes India rapidly towards the precipice where the working class find themselves brutalised and isolated and the justice system is seen by all - as it essentially is - as a class weapon perpetually perpetrating injustice.

As this happens the story foretold by Krishna Iyer in Veena Sethi's case may well come true; "One day the cry and despair of large number of people would shake the very foundation of our society and imperil the entire democratic structure. When that happens we shall have only ourselves to blame.