30, Jul 2020 | Sanchita Kadam
To improve prison conditions does not mean that prison life should be made soft; it means that it should be made human and sensible.”
– Jawaharlal Nehru in India and the World
Prisons are those public institutions that are fundamentally the least public in nature. What happens within the high walls of a prison, remains within those high walls and very little news of the lives of the prisoners makes it into the public domain. Prisons are meant to house undertrials and convicts to protect society from offenders and their crimes but prisons are also places where convicts and undertrials live a covert life making them more prone to being subject to inhumane conditions.
Naturally, an institution like that needs a decent monitoring system to ensure that no prison authority functions without having to be accountable for incidents and occurrences within the prison. The overemphasis on ‘security of prisons’ has not only invisibilised prison conditions, but also obscured the statutory monitoring mechanisms that need to be available for public scrutiny.
A prison, being a well-guarded, high walled institution, is hidden from the public eye and the occurrences within the prisons seldom get public attention. This means there is a section of our population that spends, in many cases, significant amount of time of their lives in such a place that is removed from public glare and attention. There is never too much concern over a prisoner’s death in a prison because society believes more in vindication than in reformation, and thus has less regard for the life or the rights of a prisoner. Never mind the fact that as per the National Crime Records Bureau (NCRB) Report of 2018, 69.4 percent of these prisoners are hapless undertrials, languishing in jails only because they lack the wherewithal to challenge their egregious term. Statutory norms exist on our Prison Manuals but poor application, societal disdain and an institutional apathy to ensure implementation have relegated the monitoring of prison conditions to a farce.
In the research paper titled The Mess We’re In: Five Steps Towards the Transformation of Prison Cultures author Lynn Branham said, “Treating prisoners not as objects, but as the human beings they are, no matter how despicable their prior actions, will demonstrate an unflagging commitment to human dignity. It is that commitment to human dignity that will, in the end, be the essential underpinning of any endeavour to transform prison cultures.”
It is this commitment to human dignity that should inform the discourse regarding the rights of prisoners. Simply establishing a right is not adequate, but safeguarding it is as much a part of the process of the realisation of that right. Rights without remedy are illusory. Hence, if a prisoner whose rights are being violated does not have a redressal mechanism at his disposal, the existence of the rights is nullified.
Justice RC Lahoti, former Chief Justice of India had in a letter petition to the Supreme Court mentioned a quote from a research paper, “Judges rarely express concern for the inhumane treatment that the person being sentenced is likely to face from fellow prisoners and prison officials, or that time in prison provides poor preparation for a productive life afterwards. Courts rarely consider tragic personal pasts that may be partly responsible for criminal behaviour, or how the communities and families of a defendant will suffer during and long after his imprisonment.” This letter petition was converted into a suo moto petition In Re Inhuman Conditions in 1382 Prisons [(2016) 3SCC 700].
Watching the Watchdogs
Here we have a look at the internal as well as external mechanisms in India for the monitoring of prisons to ensure that prisons function as per the rules laid out, and that prisoners live there under humane conditions.
Compliance and prison management
Compliance of rules within the prison is meant to be checked by prison authorities. The improvement of conditions and maintenance of humane conditions are to be ensured by prison authorities and their subordinates. A study of the entire system reveals a closed system as all the monitoring and reporting happens within the department, with no external checks and balances rendering an opaque system… unaccountable.
It is the Model Prison Manual, 2016, released by the Ministry of Home Affairs, that lays down the roster. Under this, the Deputy Superintendent (DSP) is supposed to visit the prison twice a day and once a week at night to satisfy himself that no untoward incident has taken place and that everything is in order. The DSP reports to the Superintendent and the Superintendent further reports to the Inspector General of Prisons of that state. The Superintendent is also expected to make surprise visits to the prison to keep a check.
The prison manual also provides for a Grievance Redressal system, which requires prisons to have a complaint box which is to be opened by the Deputy Superintendent every evening. The prisons are also required to have a permanent Grievance Redressal Committee comprising the Superintendent, the Deputy Superintendent, the Medical Officer, and the Welfare Officer. If the prison has a female enclosure, one-woman officer, not below the rank of Deputy Superintendent needs to be on the Grievance Redressal Committee. This Committee is supposed to look at the complaints in their bi-weekly meetings.
Clause 19.16 (xii) of the Model Prison Manual states that, letters addressed by prisoners to the Government, Judiciary, Inspector General of Prisons or other high functionaries should be forwarded to them immediately without being censored and a dated receipt of these should be given to the prisoner who has authored them. This provision is made to ensure that the prisoner is able to communicate with whichever authority he wishes to address his concerns and grievances to.
On paper, these rules sound ideal. If followed in good faith and practice, conditions of prisons in India would surely not be the opaque den of disease, squalor and filth in India. First person accounts of recent political prisoners are clear giveaways of how prisons are still ill managed no matter how ideal the manual looks on paper. The rosy model manual not only lacks implementation on man a count, but also most significantly falls short on robust external scrutiny and monitoring. Public scrutiny becomes an imperative aspect of prison management, and eventually of safeguarding prisoners’ rights within the high walls of a prison.
External scrutiny: Who should watch the watchdogs?
Monitoring and scrutiny of any institution is best done by a party independent from its control or influence. It is then less likely that any violation of the rules will come to be reported beyond the high walls of a prison since that would open it to questioning, accountability and liability. Hence, it becomes important that an authority independent of the prison authorities, bureaucracy and government, keeps a check on their functioning to ensure the rules are being followed and prisoners are living in decent, liveable conditions.
Hence, the Model Prison Manual provides that the District Judge should visit each prison under his jurisdiction once a month and give an opportunity to all the prisoners to present their grievances or requests, if they so desire, in the absence of prison officers. This is described as a statutory function of a District Judge and thus becomes binding on him/her. However, there is no public access to records of whether these visits are actually made.
As per a report of the Commonwealth human Rights Initiative (CHRI) ‘Prison visiting system in India’ states that State supervision over day-to-day happenings within such institutions has been reduced to a mere formality. The report cited a judgment of the Madhya Pradesh High Court in Ranchod Vs. State of M.P. (1986 16 Reports M.P. 147) in which the callous behaviour of jail doctors, maltreatment by jail staff and tampering of jail records came up for judicial scrutiny. Through the judgment, the bench questioned the efficiency of monitoring of prisons in India,
“Do our District and Sessions Judges, who are ex- officio visitors to the jail within their respective jurisdiction, the Director of Health Services, the Civil Surgeon or Medical Officers, the representatives of people representing particular urban or rural constituency in the State Legislature and the non-official visitors, as appointed…do they satisfy themselves that the law, rules regulating the management of prisons and prisoners are duly carried out? Their duties are enumerated in the Jail Manual. They can call for and inspect any book or other record in the jail. Have they regularly visited the jail so as to apprise themselves of the genuine problems the prisoners are facing and their grievances? The non-official visitors to the jail, appointed by the State Government, have they justified their appointment by getting themselves acquainted with the prisoners’ problems and making efforts for amelioration of their lot, within the framework of the Jail Manual itself; if all this had been going on smoothly, as is expected and sought to be, possibly there was no need for this letter petition. The question looms large, who bothers..”
The report further states that “The system of prison visitors is still considered by prison staff as an un-necessary intrusion in their work, and non-official visitors reduce their functions to mere clerical formality in the absence of any accountability.”
District & Session Judge
Under clause 26.26 of the 2016 Model Prison Manual, the District and Sessions Judge is duty bound to visit and inspect high security and other prisons, and to satisfy himself that all rules, regulations, directions and orders made or issued to such prisons, are duly observed and enforced. The frequency of these visits has not been specified and hence, the accountability of the monitoring process under the Judge is considerably lessened. The Sessions judge also has the authority to issue an order based his observations, albeit, without undermining the authority of the Superintendent over subordinate prison officers as well as prisoners. The record of such visits are, however, not made public making it nearly impossible to ensure real accountability.
Justice JS Verma, former Chief Justice of India and later Chairperson of the National human Rights Commission had sharply pointed to some lacunae. This was two decades ago through a letter to the Chief Justices of all High Courts with regard to human rights in prisons in January 2000. In the letter he pointed out how “Sessions Judges are not regular in visiting prisons and the District Committee headed by Sessions Judge / District Magistrate and comprised of senior Superintendent of Police is not meeting at regular intervals to review the conditions of the prisoners.” He had further stated in the letter that, “The prisoners are in judicial custody and hence it is incumbent upon the Sessions Judges to monitor their living conditions and ensure that humane conditions prevail within the prison walls also.” He further asked Chief Justices of high courts to consider giving appropriate instructions to District and Sessions Judges to make these visit frequent and regular as per the law as otherwise it has an impact on the human rights of the prisoners, in absence of monitoring.
Board of visitors
The Manual also makes it binding upon state governments to constitute a Board of Visitors comprising Official and Non-official members at District and Sub-divisional level in order to monitor the correctional work in prison, infrastructure in prisons, gathering grievances of prisoners and providing redressal.
The Board of Visitors at District level are supposed to comprise official members such as District Magistrate; District Judge; Chief Medical Officer of the Health Department, at the District level; Executive Engineer, PWD at the District level District Inspector of Schools; District Social Welfare Officer and District Agricultural Officer. They are also meant to include non-official members like Three Members of the Legislative Assembly, one of them being a woman; one nominee of the State Commission for Women and two social workers.
This board of visitors is to meet the Superintendent once in every quarter of the year (three times a year) and the details of such a meeting have to be submitted to the Inspector General of Prisons. At least one member of the Board is supposed to visit the prison once a month, without having to give any intimation to any prison authority. This means this is required to be a surprise visit. They have the freedom to speak to prisoners individually as well as secretly without having to be in the hearing range of a prison officer.
Do such visits take place?
How do Indian citizens and members of the public know that such statutorily required monitoring steps and mechanisms are actually being implemented?
Apart from attending to grievances and attempting to redress them, the Board is also to attend to the quality and quantity of the Prison diet, conditions (hygiene) of the kitchen and hospital, availability of medicines, hospital management, medical treatment of the prisoners, sanitary arrangements, aspects of vocational trainings, literacy program, and library facility for the prisoners. Any member of the board is given the power to call for and inspect any book, or other record, in the prison, unless the Superintendent declines it, on the grounds that the production would be undesirable. This puts the power back into the hands of the Superintendent, who is one authority that is in need of maximum scrutiny and monitoring.
Further, the Superintendent is required to ensure that the prisoners lodging complaints with the visiting member/members of the Board of visitor do not subsequently fall prey to vendetta of the accused or prison staff complained against. This sounds more utopian than real. If this process if duly followed and if a prisoner is made aware that his complaint is ultimately going to the Superintendent, it is less likely that any true grievances will be expressed.
A 2016 report of the CHRI, Looking into the haze- A study on prison monitoring in India, had concluded that only Arunachal Pradesh, Chhattisgarh, Meghalaya and Tripura had Board of Visitors in all their jails, until 2016.
Neither the internal nor the external monitoring mechanisms of prisons are transparent in any manner. While the prison authorities at all levels are required to keep a record of their duties performed as per the prison manual, these records stay within the high walls of the prison, the Deputy Superintendent reports to the Superintendent and he in turn reports to the Inspector General of Prisons but the record kept is not required to be made available for public scrutiny by default.
The few reports that reach the government are reports on deaths in prisons, escape of a prisoner, and death of prisoner in transit and report of prisoners on hunger strike. The death of prisoner in transit is also supposed to be reported to the National Human Rights Commission (NHRC). Apart from this, only the annual report on the functioning and progresses achieved by the Department of Prisons and Correctional Services is placed before the state legislature. These Annual Reports were not found to have been uploaded on prison department website of the states.
Jurisprudence on prison conditions
Re Inhuman Conditions in 1382 Prisons [(2016) 3SCC 700] is only the recent landmark apex court judgment concerning prison conditions. This was a suo moto case converted from a letter written by former Chief Justice of India, Justice RC Lahoti, Justice Madan B Lokur. The main issues raised were overcrowded prisons, unnatural deaths of prisoners, inadequacy of staff and inadequately trained staff. The bench of Justice Lokur and Justice RK Agrawal observed, after having a look at the state responses that, by-and-large, the steps taken by the state were facile and lack adequate sincerity in implementation.
Through state responses the court were apprised of the fact that despite funds being allocated under the 13th Finance Commission for the improvement of conditions in prisons no grant was allotted in as many as 19 States and in the States where grants were allotted, the utilisation was less than 100 percent.
The Model Prison Manual, 2016 cited hereinabove is the result of the nudge given by the apex court in this case since the former prison Manual dated as long back as 2003. Even undertrial review committees were set up at district levels in states to ensure that undertrials do not have to languish in jails owing to lack of legal aid and their inability to have access to the courts for securing bail.
Are prisons truly monitored?
This judgment, which was delivered two years ago, led to complete revamp of the prison manual, which had not been reviewed since 2003! It also led, successfully, to the setting up of undertrial review committees at district level in all states. The review of the prison manual ensured inclusion of provisions such as the Board of Visitors which is an extremely important provision as it gives even non-official members such as social activists a glimpse into prisoners’ lives and to face to face with their grievances.
Once the Board of Visitors are able to voice their concerns to the Superintendent, there is nothing in the manual to ensure follow up actions in this regard. The power of the Board is, therefore, limited. The fact that these reports from the Board of Visitors are not required to be submitted to the state Home department, means that the political class, representatives of the people are also not entirely in the know of prison conditions and efficacy of monitoring systems. This also means that is essentially a closed circle of people –IPS officers and bureaucrats –who hear grievances, which may or may not be redressed.
Rights without remedies are illusory and rights with only apparent remedies negates the rights completely. Despite of the refurbished and revised Model Prison Manual, 2016 –an exercise undertaken due to a nudge from the Indian Supreme Court –that, for the first time, gave outsiders access to prisons, this method of monitoring does not meet o transparency continues to rule the day.