Prison Reforms: Journey From Deterrence To Rehabilitation

“Imprisonment does not spell farewell to fundamental rights, although, by a realistic re-appraisal, Courts will refuse to recognize the full panoply of part III enjoyed by a free citizen. Article 21, read with Article 19 (1) (d) and (5) of the Constitution of India, is capable of wider application than the imperial mischief which gave it birth and must draw its meaning from the evolving standards of decency and dignity that mark the progress of a mature society. Fair procedure is the soul of Article 21; reasonableness of the restriction is the essence of Article 19 (5) and sweeping discretion degenerating into arbitrary discrimination is anathema for Article 14. Constitutional karuna us thus injected into incarceratary strategy to produce prison justice.”[1]

By
Jasper Vikas George*


“The therapeutic approach is of recent growth even in countries where great progress has been made in science, education, business and industry. In countries like India, the approach so far has been in somewhat rudimentary form… whatever has happened in India in the field of correctional approach is the direct outcome of developments taking place in the penological thought of various countries, particularly in England and the U.S.A. ”[2]

“It was only around the twelfth century that administration of justice was taken over by the Crown in England. Before that, like other tetonic tribes in North-Western Europe, crime was regarded as a wrong against a person for which compensation was payable by the wrongdoer to the victim… in course of time, this became an important source of revenue. Imprisonment, as understood then, was not an end in itself by way of punishment. It was used to compel the offender to pay the fine, or to spend the period between arrest and trial or between the conviction for a capital offence and its execution.”[3] In the early days of criminal system, the punishment aspect, confine to Torture and mutilation of limbs. Later on, transportation was used as punishment. Capital punishment was not common at the end of the eighteenth century in the evolution of the criminal system. The detention houses of the nineteenth century were kept in very inhuman conditions. There was no separate arrangement for men and women.


Prison Reforms


At the end of the eighteenth century we have seen the emergence of the humanitarian movement, which was directed towards the better administration of criminal justice. Further, because of the change in the pattern of the criminal administration from punitive to correctional, it leads to the development of prison administration. In the words of Barnes & Teeters,[4] jail is one of the most mysterious section of the prison system. John Howard, no doubt, rightly called as the father of prison reforms. The interaction of psychology and law lead to the development of prison administration. The advent of psychology is the foundation stone of correctional methods. In 1773, High Sheriff of Bedfordshire, tried to do something about the bad sanitary conditions prevailing in prisons. In the field of prison administration in the USA, two methods took birth. The Pennsylvania System and the Auburn System. In the first system hardened criminals of more serious offences were given solitary confinement. In this, the inmates were kept in complete seclusion all through the sentence. Two French observers acknowledged the reformative aspect of solitary confinement. In an interview, one of the prisoners said to them: ‘it is with joy that I perceive the figures of the keepers who visit my cell. This summer a cricket came into my yard, it looked like a companion. When a butterfly or any other animal happens to enter my cell, I never do it any harm.’ But this bright side of the reform cannot go longer. Immediately their side effect comes forward. Prisoners developed the tendency of suicide. Change in prison philosophy is the need of the hour. In the latter system, the prisoners were allowed to associate during the daytime with other persons in relation to their work only. The Pennsylvania System was applied in Pentonville prison of England.

Due to the end of transportation as punishment, the problem of overcrowding of prisons started. Though ‘ticket to leave’ was introduced, yet the problem remained as even before. The Irish system created by Sir Walter Crofton, chairman of the Board of Directors of Irish Prisons, was the first system. based on the philosophy of correction. Here in the first stage the prisoners were kept under strict discipline and given some schooling for an hour a day. This system was tapered off due to strong public opinion and general increase in the number of crimes. In 1898, Prison Act was passed in England, which till today remains the basis of Prison administration there.

The present prison administration and philosophy in England is based on the following concepts:[5]

1. The sentence in prison should be utilized for moral, mental and vocational training.

2. The help of the community out side the prison should be made useful for such training.

3. The responsibility of the outside community should continue after the convict’s discharge from the prison.

Indian Prison System

Before the advent of British in India, the conditions of Indian Prisons were very pathetic. The prison reform in India starts with the appointment of a committee of which Lord Macaulay was the member. “The first all India Jail Committee (1836-38) condemned the system of employing the prisoners outside the jail walls on the construction of roads, cleaning of drains and similar occupations and this system of employment of prisoners had almost disappeared by the time the second jail committee was appointed in 1864 to review the prison administration in India. The second jail committee recommended a certain minimum space for each prisoner inside the prison, better clothing and food, and regular medical check-up of the Prisoners… a clear departure from the deterrent aspects was made for the first time when the principle of reformation of the convict was highlighted by the jail-committee in 1919-20. It stated:

The Indian prison administration has lagged behind on the reformative side of prison work. It has failed so far to regard the prisoners as an individual and has conceived of him rather as a unit in the jail administrative machinery. It has a little lost sight of the effect which humanizing and civilizing influences might have on the mind of the individual prisoner.”[6]

Recommendation to end the short-term sentences was the first step recommended by the All Indian Jail Manual Committee (1957-59) towards the prison reforms. “Short term imprisonment which obviously has no therapeutic or rehabilitative value is being gradually replaced by part-time work on civic projects, restitution plans, the payment of fines in installments, etc.”[7] The above committee recommended number of reformative and rehabilitative measures pertaining to the problems of prisoners. But they all are merely guidelines. In 1980-83, Government of India appointed All India Jail Reforms Committee, with Justice A.N.Mulla as its chairman, who recommended the creation of a permanent national body by the Ministry of Home Affairs, to be known as the “National commission of Prisons”. “Some of the more important general recommendations made in the National Policy draft are as follows:

1. There shall be in each State and Union Territory a Department of Prisons and Correctional Services dealing with adult and young offenders – their institutional care, treatment, aftercare, probation, and other non-institutional services.

2. The State shall endeavour to evolve proper mechanism to ensure that no undertrial prisoner is unnecessarily detained. This shall be achieved by speeding up trials, simplification of bail procedures and periodic review of cases of undertrial prisoners. Undertrial prisoners shall, as far as possible, be confined in separate institutions”[8]etc.

But, these recommendations are in vain because of its non-implementation.

Prison Objectives and Problems

It is well settled now that the main aim of imprisonment is not retribution but reformation, to make prisoner a better human being. Though it requires a lot of strength to commingle two opposite forces. On the one hand there is compulsive element of detention with all its evil consequences and on the other hand, there are efforts of the society to reform him.

“Classification of offenders is one of the most important problems faced by the prison system. Individualization of treatment of offenders means that the personality of each offender is to be assessed and prison programmes designed to meet the individual requirements as far as possible…classification of offenders involves consideration at two different stages. Firstly, at the time of determining which particular type of prison the offender is to be sent to and secondly, within a given prison the offenders are to be classified through medical, psychiatric and psychological examinations, through educational and vocational studies and through case work interviewing.”[9]

“Based on the segregation imperatives, the committee suggested the following varieties of institutions to meet the needs of different categories of prisoners.

i. Separate prisons or annexes for undertrials.

ii. Separate prisons or annexes for women.

iii. Separate camps for prisoners courting arrest in connection with socio-economic movements and protests.

iv. Separate institutions for young offenders which should be semi-open with medium security arrangements.

v. Separate prison yards and enclosures for non-habitual offenders.

vi. Maximum-security prisons for habitual offenders, professional and organized criminals, sophisticated criminals and criminal careerists.

vii. Special security prisons for difficult discipline cases, escape risks and dangerous and violent prisoners.”[10]

The committee also put stress over the diversified education, as was there in USA. According to the committee, education is the principal channel of correctional treatment. The content of the education is multipurpose. On the one hand, it includes fundamental academic education, which consists of vocational education, and on the other hand, it includes health, cultural and social education that consists of religious and moral education.

Prison Labour and Industry

Jeremy Bentham was the first, who in his 1791 book, entitled ‘Panoptican’, propagate the private management of prisons. “Under the scheme of privatization of prisons, the wages earned by the working prisoners could be divided in three ways; to contribute towards the cost of their confinement, to make restitution to the victims of their crimes; and to help support their own families during imprisonment, or accumulate funds for use on their release to lessen any temptation for return to a life of crime. Even under the present system, at Yerawada Jail of Poona in Maharashtra prisoners work eight hours a day, earn money and learn some skill which could be of use after their release. Though the main occupational Yarwada Jail is agriculture, some inmates have learnt to be carpenters, cooks, ironsmiths, weavers, tailors, bakers, cobblers etc. In 1995, Maharashtra’s net turn over from prison industry and agriculture was a whooping Rs. 500 million, the highest in India, followed by Gujarat with a modest Rs. 30 million.”[11]

Supreme Court in a case[12], found three years’ rigorous imprisonment awarded to a well-educated white-collar Government employee for the offence of cheating, to be inappropriate and ordered its substitution by 18 months’ imprisonment along with suitable mental-cum-manual work. Regarding wages, the Court held that unpaid work was “bonded labour and humiliating” and expressed its shock and surprise that two decades after all discussions regarding correction and rehabilitation in the country, the A.P. Government had yet to frame rules for the payment of wages of prisoners.

In Dharambir v. State of Uttar Pradesh[13] court reiterated its support to the work training progress in the following words:

“We are told that the two prisoners are agriculturists by profession. It is better, therefore, that they are put to use as agriculturists, whether within or without the prison campus. Being young, they should also be trained in any other useful craft, if they have aptitude, therefore, so that when eventually they emerge from the prison walls, they may become sensitive citizens and that when prisoners are made to work, as these two ought be under our directions, a small amount by way of wages could be paid and should be paid so that the healing effect on their minds is fully felt. Moreover, proper utilization of services of prisoners in some meaningful employment, whether as cultivators or as craftsmen or even in creative labour, will be good from the society’s angle as it reduces the burden on the public exchequer and the tension within.”

“Continuing the same approach, the courts have gone further to hold that prisoners are entitled to fair wages for the work done by them even, if, they have to do it involuntarily as a part of punishment. The issue has been directly and squarely dealt with by the Kerala High Court in the matter of Prison Reforms Enhancement of Wages of Prisoners, where free labour by the prisoners was held to be violative of Article 23 (1) of the Constitution…the court justified the ruling by pointing out that what is authorized by Section 53 of the Indian Penal Code is Hard labour and not free labour.”[14]

Solitary Confinement

Solitary confinement is inhuman. In the leading decision[15] Supreme Court held the following points in support of the judgment:

1. “Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed. If Section 30 (2) of the Prisons Act enables the prison authorities to impose solitary confinement on a prisoner under death sentence, not as a consequence of violation of prison discipline but on the sole and solitary ground that the prisoner is one under sentence of death, the provision would offend Articles 14, 19 and 20. Further, if by imposing solitary confinement there is total deprivation of camaraderie amongst co-prisoners commingling and talking and being talked to, it would offend Article 21.

2. Sub-section (2) of Section 30 does not purport to provide a punishment for a breach of jail discipline. Prison offences are set out in Section 45 and the power to deal with them has been vested in the superintendent under Section 46 of the Act which authorises him to put a prisoner in separate or cellular confinement.

3. Solitary confinement is by itself a substantive punishment which can be imposed only by a court of law as provided in Sections 73 and 74 of the Penal Code.

4. Section 30 (2) merely provides for confinement of prisoner under sentence of death in a cell apart from other prisoners and he is to be placed day and night under the charge of a guard. Such confinement can neither be cellular nor separate and in any event, it cannot be a solitary confinement.

5. The expression “prisoner under sentence of death” can only mean a prisoner whose sentence of death has become final and conclusive and indefeasible, which cannot be annulled or voided by any judicial or constitutional procedure. To be ‘under sentence of death’ means ‘to be under a finally executable death sentence’.

6. If solitary confinement is a revolt against society’s humane essence, there is no reason to permit the same punishment to be smuggled into the prison system by naming it differently. Law is not formal label, nor logomachy, but a working technique of justice. The Penal Code and Criminal Procedure Code regard punitive solitude as too harsh and the legislature cannot be intended to permit preventive solitary confinement, released even from the restrictions of Sections 73 and 74, IPC, Section 29 of the Prisons Act and the restrictive Prison Rules. It would be extraordinary that a far worse solitary confinement, masked as safe custody, sans maximum limit, sans intermission, sans judicial oversight or natural justice, would be sanctioned. Common sense quarrels with such nonsense.”

Though there are certain doubtful points in this judgement, such as, it is “doubtful that the power regarding award of punishment, including solitary confinement, vested in the court is exclusive or necessarily ousts the administrative or disciplinary powers of the jail authorities under the Prisons Act or any other legislation. In fact, it is significant that there are some sanctions e.g. whipping, which though not permissible under the Penal Code can still be applied by the jail authorities under certain circumstances.”[16]

Fetters

The use of Fetters is another problem faced by the court. In Charles Sobraj[17]case few points emerged as under: -

1. bar fetters, to a very considerable extent curtail, if not wholly deprive, locomotion which is one of the facets of personal liberty.

2. the court cannot be oblivious to the fact that the treatment of human beings which offends human dignity, imposes avoidable torture and reduces man to the level of a beast would certainly be arbitrary and can be questioned under Article 14 of the Constitution. Putting bar fetters for an unusually long period with out due regard to the safety of the prisoner and security of the prison would certainly not be justified under Section 56. Particularly, it would be so when the medical opinion is that bar fetters should be removed.

3. undertrials shall be deemed to be in custody but not undergoing punitive imprisonment and they shall be accorded more relaxed conditions than convicts.

4. the prolonged continuance of ‘irons’ as a punitive or preventive step shall be subject to previous approval by an external examiner like a Chief Judicial Magistrate or Sessions Judge who shall briefly hear the victim and record findings.

5. the Inspector General of Prisons shall, with quick dispatch, consider revision petitions by fettered prisoners and direct the continuance or discontinuance of the ‘irons’. In the absence of such prompt decision, the fetters shall be deemed to have been negatived and shall be removed.

Handcuffing

Handcuffing is described as inhuman and overharsh practice to be employed only in exceptional circumstances and with judicial safeguards.[18] The Court held that the distinction based on the class of persons and nature of accusation was unsustainable and ‘compulsive need’ could be the only basis of handcuffing in some unusual circumstances.

Prisoners’ Rights

“Right from the inception of human civilization crime has been in existence in every society. However, due to urbanization, industrialisation and the development of science and technology the traditional criminal pursuits have been replaced by new ones. Alongwith this change, the change in the methods of punishment too became inevitable…however, the criminologists throughout the globe have come out with theory of “Prisonization” or the effect of the sub-criminal culture in the prison, whether long-term or short term.”[19]

The aim of prisons is to rehabilitate and reform the ‘Prisoners’. The United Nations Congress has also highlighted on the factors in correctional reforms. It states[20]:
“…the resocialisation of the offender, the protection of society, and the redirection of crime in the community continued to be the ultimate objectives of corrections. The main problem was the necessity to strike an adequate balance in practice, between the needs of rehabilitation, on the one hand, and the necessity to protect society on the other, under rapidly changing political and economic conditions. It was generally accepted that the least restrictive sanction should be utilized to achieve that balance.”

Prisoners are not less than the human beings. They also have fundamental right to live their life with dignity. United Nations, through its Department of Economic and Social Affairs, in 1958, had come up with ‘Standard Minimum Rules For The Treatment Of Prisoners And Related Recommendation’.

Part I of the ‘Minimum Rules’ dealt with the rules of general application. According to Para 6 (1) The rules shall be applied impartially. There shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, or social origin, property, birth or other status.

Articles 9 to 14, deals particularly with the conditions of accommodation of the prisoners. Good sleeping conditions, which consists of minimum floor space and lighting, proper use of dormitories, enough large windows for fresh air, etc. In the like manner, there are some other conditions such as, medical services, personal hygiene, etc. which needs proper attention.

In Frances Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746, “the Supreme Court got the opportunity of considering a few other aspects of the prisoner’s right to have a lawyer and reasonable access to him without undue interference from the prison staff. It was said that the right of a detenu to consult a legal advisor of his choice for any purpose is not limited to criminal proceedings but also for securing release from preventive detention or for filling a writ petition or for prosecuting any civil or criminal proceedings. A prison regulation, it was pointed out, cannot prescribe any unreasonable and arbitrary procedure to regulate the interviews between he detenu and the legal adviser.”[21]

The apex Court ruled that though overcrowding in jail is not constitutionally impermissible, but the same adversely affects health and hygiene and, therefore, must be taken care of.

In Frances Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746, the Court held that the relevant provisions of the conditions of the Detention Order to be violative of Articles 14 and 21 of the Constitution. In reaching the above conclusion the Court also emphasized the distinction between convicts and detenus under preventive detention; the latter being on a higher pedestal compared to the former.

In Prabha Dutt v. Union of India[22], the Court allowed the interview holding that the Press is entitled to interview prisoners unless weighty reasons to the contrary existed.

The remedy of compensation to prisoners must be available in appropriate situations. In Rudul Sah v. State of Bihar[23], the Supreme Court awarded damages to a victim of wrongful imprisonment for 14 years after his acquittal.

Even after all this, the condition of prisons is still pathetic. Lack of implementation of programmes made specifically for the welfare of the prisoners is the main cause of concern.

© Copyright reserved with the author

Notes


*Jasper Vikas, Advocate, Delhi High Court, Pursuing LL.M from Faculty of Law, University of Delhi, Res. 69, Antriksha Apartments, H-3, Vikas Puri, New Delhi – 110018, Office G-2/2, Ground Floor, Sector-16, Rohini, New Delhi-110085, (M) 9818821498

1. Charles Sobraj v. Supdt. Central Jail, AIR 1978 SC 1514.

2. Siddique, Ahmad, Criminology: problems and perspectives, p. 142

3. Ibid., p 142.

4. New Horizons in Criminology, 3rd edition 329.

5. Siddique, Ahmad, Criminology: problems and perspectives, p. 147

6. Sirohi, J.P., Criminology and criminal Administration, p. 128-129.

7. Dr. Hira Singh’s Editorial, New Trends in Correction, Social Defence, Vol. XII, Number 48, April 1977, quoted from Sirohi, J.P., Criminology and criminal Administration, p. 130.

8. Siddique, Ahmad, Criminology: problems and perspectives, p. 150.

9. Ibid. 153.

10.Ibid. 155.

11. Dr. Lalithabreenath, Privatisation of Prisons – Relevance of Bentham; 1996 Cr. L.J. 119.

12. Mohammad Giasuddin v. State of A.P., AIR 1977 SC 1926.

13. AIR 1983 Ker. 261.

14. Siddique, Ahmad, Criminology: problems and perspectives, p. 160.

15. Sunil Batra v. Delhi Administration, 1978 4 SCC 494.

16. Siddique, Ahmad, Criminology: problems and perspectives, p. 165

17. Charles Sobraj v. Supdt. Central Jail, AIR 1978 SC 1514.

18. Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526.

19. Raina, S.C., Judicial Activism and Social Change, p. 455.

20. Fifth United National Congress on the prevention of Crime and the Treatment of Offenders, United Nations, New York.

21. Siddique, Ahmad, Criminology: problems and perspectives, p. 172.

22. 1982 1 SCC 1.

23. (1983) 4 SCC 141