In an ongoing case, the Supreme Court is likely to consider the feedback of various states and union territories on the standard of living in 1,382 prisons across the country, with regard to two key issues – overcrowding and unnatural deaths.
The case has been heard since 2014 by a bench presided by Justice Madan B. Lokur after a letter by former Chief Justice of India R.C. Lahoti was converted into a PIL on the issue. It is an instance of the court’s activism to ensure justice for the prisoners, in the absence of any initiative by the central and state governments to take timely remedial steps to alleviate their suffering.
On October 3, the court was informed that several jails across the country were overcrowded by around 150%. The data is alarming: eight jails in Assam, 17 in Chhattisgarh, three in Jharkhand, seven in Karnataka, 21 in Kerala, five in Madhya Pradesh, 16 in Maharashtra, 21 in Rajasthan, 47 in UP and 12 in Delhi have reported such overcrowding.
In its previous order, the court had asked the states and union territories to submit a plan of action to reduce overcrowding in prisons, but none bothered to, or rather, none could come up with a concrete plan. Although there are some options available to resolve the problem of overcrowding, such as constructing new prisons, these come with added issues.
Constructing new prisons
Constructing more prisons is a possible solution to the problem at hand. Most large prisons are old constructions built within cities, which means they are located somewhat in the vicinity of the courts. Given the price of land and number of people living in urban areas, it is difficult to acquire land within cities. It would, therefore, be useful to acquire large tracts of land outside the city for the construction of new prisons. But this is bound to give rise to logistical issues with producing the accused at the courts.
Ensuring enough guards and vans to escort prisoners to court is a challenge even now. Over-burdened prison and police departments will find it an even tougher task if prisons are moved to the outskirts of the cities. Videoconferencing – often cited as a solution to the problem of producing prisoners at courts – has its own limitations, if it is used on a mass scale.
Any issue that obstructs the process of an accused being produced before a court would mean an interruption in accessing justice.
The construction of new prisons is a time-consuming process. Therefore, in the meantime, prisons that have over-crowded wards should allow some prisoners to stay in temporary tents built on the prison grounds or allow them to sleep in the corridors lining the wards.
Although this appears to be an effective solution to over-crowded prison wards, most prison departments would be reluctant to implement it due to the shortage of available prison guards. Prison departments are severely understaffed. Filling up vacancies and training prison staff, therefore, should be part of any plan proposed by the state governments.
Bail for undertrials
In the ongoing prisons case, the Supreme Court has issued directions to ensure that undertrials, who form a significant proportion of the prison population, are released, if they are eligible to be released under the provisions of Section 437 of the CrPC.
Granting bail or even dismissing a case remains a matter of judicial discretion. But the application of the judicial mind is subject to the time available per case in between the first and subsequent productions of the accused in court.
The first physical production of the accused in court, however important, remains an empty formality. The states have not succeeded in providing legal aid lawyers to all accused before their first physical production within 24 hours of arrest. As a result, the accused are put behind bars in an almost mechanical manner. People who can afford private lawyers are more likely to step out of the maze of the criminal justice system but the poor remain trapped in it.
In the absence of effective legal aid, the severely over-burdened judiciary at the district and sub-divisional courts cannot discharge its duties effectively. Till vacancies of judicial officers are filled and the legal aid mechanism is stepped up, it will continue to cast its shadow on the prison population.
Lengthy trials also impact the prison population. Often, a trial gets delayed because the official witness does not appear. Witnesses such as the investigating officer (IO) and the doctor, are required to give testimonies in several cases and are also subject to frequent transfers. In an ideal situation, the official witnesses need to be sent early summons and on their appearance, their statements should be recorded and examined in the court at an early stage of the trial. Also, it would save time if, on the day of their court visit, the statements of the IO and the doctor are recorded in more than one matter pending in the same court, in which they also stand as witnesses.
Given these issues, Rajasthan’s prison rules provide a model worth emulating across the country.
Overcrowding in prisons can also be reduced if steps are taken towards reducing the convict population in prisons. According to the 2014 prison statistics, convicts make up more than 31% of the prison population. Some progressive steps initiated back in the early 1960s can be revisited.
The Rajasthan Prisoner Release on Parole Rules, 1958 has a provision for permanent parole, under which a prisoner undergoes his sentence outside prison. According to this rule, any prisoner who has completed one-third of his sentence inside the prison, has successfully completed three paroles and has maintained good conduct during his stay in prison is eligible for a permanent parole, whereby he is put on parole under certain conditions for the remaining part of his sentence.
For permanent parole, a committee headed by the director general of prisons sends its recommendation to the state government, which takes a decision on the recommendation. According to Ajit Singh, Rajasthan’s director general of prisons:
Normally the government accepts the committee’s recommendations. Last year 176 persons were recommended for permanent parole out of which 175 persons were given parole. We have this provision of permanent parole for years now and it has been working since there is hardly any instance of recidivism which have come to our notice. Other states can examine the utility of this rule.
It is surprising that the practice of releasing prisoners on permanent parole has not found a place in the prison rules of other states. It is possible that some states don’t even know that Rajasthan has been successfully implementing this since 1958.
Rajasthan also has 28 open camps or open prisons – where prisoners go out of the prison in the morning to earn a living and return to the camp by night. The camps also housed the families of the prisoners. Open camps have existed in Rajasthan since the early 1960s and more such camps are coming up. Though other states have attempted to implement similar practices, their efforts are far from satisfactory. Singh further added:
Anyone convicted for more than five years and has done one-third of his sentence is eligible to go to open camp. Number of people eligible is far more than the number of open camps available, so we send people to open camps in terms of their seniority, which is calculated according to the time spent in prison. That is why people convicted under 302 IPC usually get sent to open prison.
On the possibility of prisoners escaping from such camps, Singh said with a chuckle, “Last year, I had to forcefully evict prisoners from open camps because they had completed their sentence and were over staying in the camp but still refused to leave.” This incident occurred at Sangnare open camp, Rajasthan’s largest open prison.
Rajasthan’s experiment in rehabilitating convicts is fascinating, even though it has not prevented the overcrowding: 21 of its jails are reportedly overcrowded to the extent of 150%.
But the unstated explanation for this puzzle is perhaps the state’s failure in addressing the problems revolving around prisoners under trial.
Smita Chakraburtty is an independent researcher and activist working on prisoners’ rights.