Mumbai: The recent death of Manjula Shette, who was serving a life sentence at Byculla District Prison, has revived the interest of the media, civil society and quasi-judicial bodies — such as the state human rights and women’s commissions — in the condition of prisons in our country. Prison authorities are under a lot of pressure to find answers to questions of how prisoners are treated: prison conditions, overcrowding, diet and medical care, physical abuse. Every time an incident like this occurs, the same narrative plays out. And the solutions emerging are similar too. The reason for this is our characteristic ad hoc policy-making process: look for some quick-fix solutions, hold a few people responsible and hope the matter fades away from public memory.
Problems behind bars
When we look at ‘under-trials’— the term in India for persons accused of a crime, arrested, and in prison, either awaiting trial or in the process of being tried — a few key issues emerge.
Though there are no official statistics, there are juveniles who are in prison because the police wrongly entered their ages at the time of arrest. Such cases need to be identified by district legal services authorities, and transferred to the juvenile justice system.
A large number of under-trials have been arrested in less serious offences. For example, out of around 22,000 under-trials in Maharashtra, more than 5,000 are in prison for offences for which where the maximum possible sentence (if they were to be convicted) is less than seven years. As per the Prison Statistics India Report 2015, there were 3,599 under-trials in the country whose trials were not completed even after five years of being in prison, as on 2015. For example, nine Muslim accused in the 2006 Malegaon blasts case lost a decade of their lives till a special court acquitted them of terror charges in April 2016.
Convicted prisoners face problems of a different variety.
The backlog in courts (another problem requiring its own set of fixes) means their appeals against conviction remain pending in High Courts and the Supreme Court for years, with hardly any system of follow-up by the legal aid machinery.
Laws and regulations relating to release on parole, furlough and premature release need overhauling. The sanctioning authority for release of prisoners on parole is the collector or the divisional commissioner; the Inspector General of Prisons’ office sanctions furlough; and the Home Department sanctions premature release of those sentenced to life imprisonment. Having multiple authorities to consider different types of non-institutional treatment leads to policy confusion and makes the procedure open to judgment errors and corruption.
One fix is the creation of a state sentence review board, as recommended by the Model Prison Manual, 2003.
A larger issue affecting prisoners, whether under-trials or convicts, is the culture of vice and violence in prisons. Media reports highlight cases of physical abuse of prisoners, sometimes leading to grievous injury or even death, as in Ms. Shette’s case. Violence — by prisoners against each other as well as by the staff — is used as a tool for ‘disciplining’ errant prisoners or anyone who dares to question the regime. The writ in prison is, stay out of trouble and you are not harmed.
Imprisonment is also characterised by scarcity and curtailment of access to goods and facilities, and thus creates ideal conditions for the use of money power.
The ‘prisonisation’ process of first-timers and young offenders in prison — a term first used by American sociologist Donald Clemmer in 1941 — brutalises prisoners and makes hardened offenders out of them.
Prisoners also lose touch with their families, which leaves them socially isolated and alienated. This is especially true for women. One way to help them keep contact and be involved with their families’ day-to-day lives, especially with their children, is to have prison welfare and liaison officers. Most of these posts have either been ‘surrendered’ by the social welfare or prison departments or lie vacant. Again, there is no data readily available on this important aspect of correctional administration.
There is also hardly any focus on mental health interventions to mitigate the long-term impact of imprisonment. Research shows that social isolation and loss of civic identity lead to mental deterioration of prisoners, who begin to lose touch with ‘reality’. Vocational training facilities for prisoners — to help them stay away from crime on their release — are not in tune with market realities and need to be upgraded, as do education and library facilities.
Once a prisoner gets released, there is no agency or nodal officer who s/he can approach for any kind of post-release support. Social work initiatives with prisoners have shown the need for a range of post-release support services: travel allowance to go home, temporary shelter, emergency financial assistance, family counselling and support, and help with vocational training and job placement.
Systemic issues
The release of an under-trial on bail depends on financial sureties. This acts against the poor and the migrant population, especially those without proper identity and residence documents.
As on August 2017, around 530 under-trials in Maharashtra have been granted bail but are still in prison because they do not have suitable sureties (Maharashtra Prison Department data). These prisoners are supposed to be released on personal bond by the trial courts, as per the Section 436 of the Criminal Procedure Code, but the legal aid system fails to bring their cases to the magistrates’ notice.
One of the many other causes for delayed trials — which are a violation of prisoners’ legal rights — is because police escorts are often not provided to under-trials on their court dates, leading to non-production in courts. This happens because of staff shortage in the police department, and because policemen allocated for escorting prisoners to courts get diverted to law and order functions. The recent move to produce under-trials through video-conferencing suffers from issues like the lack of reliable connections and electricity failures. Also, under-trials cannot meet their family members in court and their lawyers to speak about their case progress.
The denial of justice — which is what long periods of incarceration without a trial, and the lack of a robust appeals system, boil down to — is because we do not have free and competent legal aid services.
The honorarium to legal aid lawyers in Maharashtra is an appalling ₹1,200 per case for the entire trial, irrespective of the number of hearings. The Maharashtra State Legal Services Authority has issued guidelines in 2017 increasing the honorarium to be paid to legal aid lawyers to ₹7,500 per case. The amount is still paltry, and not a draw for most competent lawyers. Prisoners prefer to remain unrepresented in court rather than take the services of lawyers who do accept, and then do not attend court dates, demand money and do not prepare briefs like they would for clients who hire them professionally.
Unless we devise a system whereby legal aid lawyers are paid on the basis of effective hearings, rather than a lump sum for the entire trial, the situation is unlikely to improve.
Our policy-makers also ignore the fact that our prisons are heavily understaffed, and lack specialised services.
On an average, 35% to 40% of sanctioned positions in prisons across the country are vacant. At Arthur Road Prison, staff positions are allotted on the basis of a sanctioned capacity of around 800 prisoners. In reality, it houses around 3,000 prisoners. The prison has just four doctors, who are on deputation from the State Health Department. (See chart for State figures).
Imagine the pressure on the staff to function under such conditions. They work 12-hour (and longer) shifts, which leaves them little time to attend to personal and family needs.
Some job functions considered necessary in modern correctional systems do not even exist in the system: there are no posts for counsellors or social workers to address prisoners’ psycho-social problems. The Maharashtra Prison Department recently signed an MoU with Tata Trusts, under which 19 social workers have been contracted to work across six prisons in a three-year pilot project, with Prayas (Tata Institute of Social Sciences) as the knowledge partner. Hopefully, such initiatives will address at least some chronic issues.
To decongest our prisons, we need to revive an almost-forgotten piece of legislation: the Probation of Offenders Act, 1958, which gives first-time and less serious offenders a chance to reintegrate in society without facing the stigma of imprisonment.
Under the Act, probation officers (POs) must visit prisons and courts regularly to identify cases that could be considered for release on probation (under a bond of good behaviour or the supervision of a probation officer) and request the trial court to call for the social enquiry report from the PO. Based on this, the court may pass an order of release on probation. But today, many PO posts are unfilled. In those that are, their superiors make them inspect women and children’s institutions and implement schemes for them, which have no connection with what they are supposed to do. Not surprisingly, POs tend to be demoralised. Incidentally, in Maharashtra, POs come under the Department of Women and Child Development, for reasons known only to the government. (In Tamil Nadu and Odisha, they are under the office of the DG Prisons, whereas in Delhi and Gujarat, they come under the social welfare or social defence departments.)
The will to change
In several countries, prison management and correctional administration are important areas of policy-making and research. The UK has the Home Office Research Unit, which collaborates with university criminology and social work departments for scientific research on prison administration and rehabilitation, and brings in policy changes based on findings. Criminology and Correctional Social Work or Criminal Justice Social Work are important disciplines in many universities abroad. The state employs graduates from these disciplines as social workers, probation officers, parole officers and aftercare workers to work with prisoners in jail and those released. There is continuity of policy, and changes are based on ground realities and data-based research, after debate and discussion with key stakeholders.
In India, however, policy making on matters relating to criminal justice is left to the wisdom of police officers and judges. Moreover, recommendations on prison administration and prisoners’ rehabilitation by the Justice Mulla Committee (1983) and the Justice Krishna Iyer Committee (1987) have been neglected.
Prisons are a state subject. There is no ministry at the Centre to look into prisons and prisoners’ rehabilitation. The Bureau of Police Research and Development has a Correctional Administration Wing, and the Ministry of Home Affairs has a Correctional Administration Division; neither has much influence on policy.
Turning our correctional system from warehousing structures for marginalised sections into human resource-building facilities requires financial resources and trained human power.
But most important, it needs political will.
Such efforts as there have been to bring about a qualitative change in our prisons have met with success. For example, the Tihar prisons have initiated counselling, mental health programmes, support services for children of prisoners, vocational training and job placement in collaboration with NGOs. Maharashtra’s prisons have a long record of involving voluntary organisations and academic institutions to provide educational, recreational, legal, vocational and family support services for prisoners, and to foster research activities around prisoners’ rights and rehabilitation. Initiatives like open prisons (without walls) and open colonies where selected life imprisonment prisoners are allowed to live with their families and go out during the day for work, have been running successfully in Rajasthan, Maharashtra and Uttar Pradesh. However, in the absence of continuity in correctional philosophy, these remain islands of excellence.
Every time there are media reports of ‘special treatment’ to a VIP prisoner or the release on parole of a heinous offender — or a celebrity — the humanisation agenda is set back by a few years, and the government rushes in to prove its credentials of being a ‘hard state.’ An added hindrance is that an IPS officer — trained to suspect and loathe offenders — heads the prison department (the trend began in the 1980s).
As long as prison reforms are viewed through the lens of leniency with people who have offended society, age-old traditions and ad hoc changes will rule our prisons. We must realise that it costs money to keep a person in custody with no guarantee that s/he will come out a better human being. We need to use prisons only for those who really require imprisonment rather than as a quick-fix solution to ‘invisibilise’ people (by putting them behind bars). Our prisoners, more often than not, end up there due to social inequity and injustice.
Our law and policy makers must show courage and will to move towards this kind of change.
About author
Vijay Raghavan is Professor with the Centre for Criminology and Justice, School of Social Work, Tata Institute of Social Sciences (TISS), Mumbai. He is also the Project Director of Prayas, TISS’ field action project that has been working since 1990 on the legal rights and rehabilitation of prisoners, children of prisoners and women in commercial sexual exploitation