Uttarakhand High Court
Surendra Singh Sandhu vs State Of Uttarakhand And Others on 10 January, 2017
Author: Sudhanshu Dhulia
Bench: Rajiv Sharma, Sudhanshu Dhulia
1
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
WRIT PETITION (PIL) No.27 OF 2016
Surendra Singh Sandhu ........Petitioner
Vs.
State of Uttarakhand and others .......Respondents
Mr. Lalit Sharma, Advocate for the petitioner.
Mr. S.S. Chauhan, Dy. Advocate General for the State.
Reserved on : 23.12.2016
Decided on : 10.01.2017
Coram : Hon'ble Rajiv Sharma , J.
Hon'ble Sudhanshu Dhulia, J.
Per : Hon'ble Rajiv Sharma, J.
The petitioner is a permanent resident of Amrit Saria Farm, Manpur Ojha, Bilaspur. He is a social activist. He had served as Block Pramukh for five years. He has filed present petition in pro bono publico seeking to preserve, protect, improve and restore the original form of Sampurnanand Shivir (Central Jail) situated in Sitarganj, District Udham Singh Nagar. The prison provides the prisoners' opportunities of employment, living a life in the open air, restore their dignity and develop self reliance, self confidence and social responsibility for rehabilitation of the convict in the society. According to him, a major chunk of land belonging to Central Jail has already been acquired by the State Government and distributed to some individuals and remaining land has been distributed to Government undertakings. According to the record, in the Sampurnanand Shivir (Central Jail), Sitarganj, as many as 14911 prisoners were shifted till April, 2005. Out of which, 2 14281 were released after completion of the period of imprisonment. The prisoners were found with improved humanitarian attitude and they were also skilled and self defendant. The facilities available in the Shivir are - (a) one day remission, (b) staying with family for a short time and (c) home leave.
Earlier, the jail was having a large chunk of land measuring about 5965 acre, having a diameter of about 25 Kms. 235 acre of land was covered by the forest and by the efflux of time, area of Shivir was reduced to only 640 acre. As per details supplied to the petitioner under Right to Information Act, State Government had already transferred 5325.92 acres land, out of total 5965 acres. According to the petitioner, State Government is making undue inference in day-to-day functioning of the Sampurnanand Shivir (Central Jail). The very purpose for establishing the open jail is going to be frustrated as State Government is distributing the lands to some individuals and government undertaking, company etc. According to information placed on record, only 130 acres land is suitable for agriculture and remaining 510 acres land is occupied by the rivers, drainages, residential houses, road, bushes, trees etc. Petitioner has also placed on record the photographs. According to the visual impression of the photographs, the condition of the building is dilapidated.
The petitioner has prayed for the following relief :-
1. A writ, order, or direction in the nature of mandamus commanding the Respondents to preserve, protect, improve and restore the original form of Sampurnanand Shivir (Central Jail) situated in Sitarganj of District Udham Singh Nagar.3
2. A writ, order or direction in the nature of mandamus commanding the Respondents not to transfer the land of Sampurnanand Shivir (Central Jail) situated in Sitarganj of District Udham Singh Nagar to any other departments, companies or individuals etc. and to ensure that the noble object of establishing the Shivir is achieved.
3. A writ, order or direction in the nature of mandamus commanding the Respondents not to curtail the facilities being provided to the prisoners of Sampurnanand Shivir (Central Jail) situated in Sitarganj who are detailed under reformative scheme.
4. Any other order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
5. Award cost of the petition to the present petitioner.
Inspite of opportunities given to the State, the counter affidavit has not been filed.
According to the notification issued by State of U.P., the jail manual of Uttar Pradesh was to be followed with certain modifications for Central Jail, Sitarganj. State Government has not filed any affidavit even in compliance of order dated 11.07.2016.
The Sampurnanand Shivir (Central Jail) was established on 16.02.1960. The total land of Sampurnanand Shivir (Central Jail) was 5965 acres. The same has been reduced to only 640 acres. 130 acres land is cultivable suitable for agriculture and remaining land is being used for the construction of residential houses, road etc. Till Aril, 4 2005, 14911 prisoners were shifted in the Sampurnanand Shivir (Central Jail). Prisoners were sent to Open Air Jail on the basis of their behaviour and conduct during the imprisonment in jail. The purpose of said Open Air Jail is to give opportunity to prisoners to make them self-dependent after their release from the jail.
Government of India, Ministry of Home Affairs has prepared Model Prison Manual, 2016. The objective of open institutions is mentioned in para 23.01. According to this para, all open and semi-open institutions are intended to put into practice the contemporary ideology of reformation, correction and rehabilitation of convicted prisoners so that they may lead a self-disciplined and cultured life after their release. This restores dignity of the individual and develops in him/her self confidence and social responsibility.
According to the para 23.03, the below mentioned categories of prisoners shall not be eligible for transfer to any of the open institutions.
(a) Offenders classified as habitual, provided they have not earned a higher grade in the proposed progressive system.
(b) Prisoners who are considered dangerous or are involved in serious prison violence like assault, outbreak, riot, mutiny or escape, or who have been found instigating serious violation of prison discipline.
(c) Prisoners convicted for offences such as dacoity, terrorist crimes, kidnapping, and smuggling including those convicted under NDPS Act, foreigners, escape risks and members of organised criminal gangs.
5(d) Prisoners committed for failure to give security for maintaining peace or good behaviour.
(e) Prisoners suffering from mental illness.
(f) Prisoners convicted of offences against any law relating to matters to which the executive power of the Union Government extends, unless approved by the Union Government.
(g) Convicts in POCSO case.
(h) Prisoners whose transfer is likely to have
repercussions elsewhere in the country.
(i) Facing trial in other cases.
(j) Prisoners who have been transferred from an
Open Prison to a Closed Prison.
According to the para 23.03.01, for the purpose of selecting prisoners for confinement in any Open Prison, the Selection/Classification Committee is required to be constituted consisting of the Deputy Inspector General of Police (Prisons), the Superintendent of the Prisoners, Medical Officer of the concerned prison and Rehabilitation Officer. The committee is required to submit the same to the Head of the Prisons for his orders.
As per para 23.03.2, the Selection Committee is required to screen the case of each casual prisoner on the following points before recommending them for transfer to an open institution :-
(a) Physical fitness and mental health required for living in a semi-open or open institution.
(b) Behaviour and conduct in the prison.
(c) Number of paroles availed and his conduct during that period.
(d) Progress in work vocational training and education.6
(e) Group adjustability.
(f) Character and self-discipline.
(g) Verification of his address/relatives.
(h) Extent of institutional impact (Whether the inmate has reached peak points of training and treatment).
(i) Whether the inmate can be further helped in the institution. Whether he will benefit by training and treatment in Semi-open or Open Institutions.
(j) Whether the inmate is getting institutionalized.
(k) Sense of responsibility Para Nos. 23.12 to 23.23 deal with the transfer to open colony read as under :-
23.12. On completion of seven years' of imprisonment in case of a life convict, or in the case of a convict sentenced to seven years of imprisonment or more after the convict having undergone half of the sentence, excluding remission as a convict, the Selection/Classification Committee shall examine the inmate's case for being transferred to an Open Colony. If there is no Semi-open or Open Institution in the State, a prisoner may be transferred directly to an Open Colony after completion of 10 years stay in a closed Institution with remission in case of a life convict, or on completion of three-forth of the sentence in the case of other convicts. If the Selection/ Classification Committee is satisfied that the inmate is fit for a transfer to an Open Colony, a report in the prescribed form, along with the inmate's case file, should be forwarded to the Inspector General. On receipt of sanction from the Inspector General of Prisons the inmate should be transferred to an Open Colony.7
23.13. Inmates should initially be treated in Semi-open Institutions and then in Open Institutions. Transfer to an Open Colony should be made only after ensuring that the inmate has satisfactorily responded to the treatment in Semi-open and Open Institutions.
These transfers should be done on a highly selective basis. Care should be taken to see that selection for treatment in an Open Colony does not become reutilized and mechanical.
23.14. Before being transferred to an Open Work Camp/Semi-open or Open Institutions/Open Colony, the inmate should be informed about the requirements and responsibilities of living in the new institution. On admission at these institutions, the inmate should be kept in the reception yard under observation. During this period he should be further oriented to institutional standards of behaviour and other requirements of institutional life. 23.15. The conditions which an inmate shall have to observe at these places should be laid down. Before being transferred to these institutions the inmate will be required to sign a bond prescribed by the Inspector General.
23.16. Minimum standards, as prescribed for the Closed Institutions, regarding accommodation, equipment, sanitation, hygiene, medical services, diet and welfare services, shall be maintained at each Semi-open Training Institution, Open Training Institution, Open Work Camp and Open Colony. These institutions should have good communication and transport facilities. Emergency equipment shall be provided in accordance with the requirements of each institution.
23.17. Security arrangements in these institutions should be established in a way that the possibility of escape gets minimised and a sense of security prevails in the neighbouring community. 23.18. The programmes at these institutions should be very carefully planned so that the inmates remain occupied in useful 8 activities. Special attention should be devoted to:
(i) Care and welfare of inmates
(ii) Individual attention to inmates' problems
(iii) Education, work, vocational training and cultural activities
(iv) Self-discipline and character training,
(v) Release planning, pre-release preparation, and after-care.
23.19. Wages should be paid as prescribed by the State Government. The wages at Semi-open institutions, Open Training Institutions, Open Work Camps and Open Colonies may be higher than those at the Closed Institutions.
23.20. Inmates should be encouraged to maintain their family contacts. The Superintendent may use his discretion in granting the facility of additional letters and interviews according to the merits of the each case.
23.21 While an inmate is living in open conditions in a Semi-Open or Open Training Institution or Open Work Camp, he should be allowed to stay with his family members for one week every six months. Arrangements for such stay should be made in a family hutment in a suitable place outside the Semi-open or Open Training Institution. These huts should be so located that the inmate and his family members get the required privacy while at the same time the requirements of discipline and security are also fulfilled. The period of stay in the family hutments should be treated as leave period and should count towards the sentence.
Note: Such a periodical stay with his family will be helpful in keeping the inmate close to his family group. This concession should, however, be granted on a selective basis and after a thorough study of each inmate's case. Initially this concession should be tried on an experimental basis. In due course, and after having gained enough experience, it may be further developed to suit local conditions in each State. The State 9 Government should issue detailed instructions in the respect.
23.22. Inmates working in open conditions in Semi-open Prisons will get concessions/remissions as permissible in Open Work Camps.
23.23. The Superintendent should examine the case of every inmate at least once in three months.
Para 23.26 provides that open work camps can be started in places where nation building activities, like digging canals, water channels, construction of dams, roads, government buildings etc. can be undertaken. Open Training Institutions should be situated in place where land and vocational training facilities are available for inmates' training and after that for work either in collaboration of some industry/department.
The International Covenant on Civil and Political Rights (ICCPR) remains the core international treaty on the protection of the rights of prisoners. India ratified the Covenant in 1979. According to the UN Global report on Crime and Justice 1999, the rate of imprisonment in our country is very low i.e. 25 prisoners per one lakh of population, in comparison to Australia-981 prisoners, England-125 prisoners and USA-616 prisoners. According to as of 2007, the prison population was 3,76,396 as against an official capacity of 277,304, distributed across 1276 establishments throughout the country.
All India Committee on Jail Reform (1980-83) has made following recommendations for improvement the Open Air Prisons :-
"In 1952, the Hague Conference recommended the organisation of open air camps. It stipulated that those prisoners, who have spent satisfactorily a certain portion of the term of their sentence, should be 10 transferred to open-air camps and allowed to lead a near -community life. These work - based camps would have a small inmate population and have bare minimum security arrangements. Further, the inmates would work and earn parity wages. Following this, in many countries such camps were started. First open - air camp was organised, in 1952, in U.P. As of now, there are 28 - 30 open-air jails with different vocational thrusts: agriculture, dairy- farming, coir work, etc. Generally speaking, prisoners spend a portion of their sentence in Central or District Jails. When their conduct and work are found satisfactory (in some states they are declared 'star prisoners') they become eligible for transfer to open-air jails. Similarly, if their conduct and work while in open-air jail is found unsatisfactory, they are usually reverted to the prison form where they had come.
Open-air jails have no security walls. Some of them may not have even barbed wire fencing. In some states / UTs, nomenclatures are also changed: Chief Welfare Officer for Jail Superintendent and Mazdoor for convict.
As mentioned, inmates of open-air jails earn wages almost equal to those in the community. After deductions for up- keep, they may deposit the balance in the post-office or remit it to their family members. Further, the rate of remission in sentence is also higher in open-air jails.
Nonetheless, there are a few constraints to contend with. Usually, open-air jails are set up in rural areas which may raise problems of administration and problems for jail- staff (shopping, education, medical treatment, etc.). Jail authorities have also to contend with the pressure for selecting prisoners for transfer to open-air jails.
In this regard, several issues need careful consideration: () Formal legal provisions and rules dealing with open air jails. (ii) Old and new open-air jails set up in a state or UT.
(iii) Utilisation of land attached with Central and District Jails. (iv) Nature of work or trades being pursued by open-air jails. (v) Criteria for the selection and transfer of prisoners to open -
air jails. (vi) Rules specifying the proportion of completed term of sentence. (vii) Agricultural orientation of different open-air jails. (viii) 11 Introduction of technology in open-air jails by way of installation of bio-gas plant, wind mill and solar electricity generators. (ix) Facilities to inmates in open -air jails. (x) Huts for family m embers visiting open- air jails' inmates. (xi) Facilities for the staff working in open -air jails. These and related matters have been dealt with by the Committee.
Para 19.33.2: The scope and purpose of open institutions should be clearly defined in the statute.
Although open-air jails and camps have been in existence for nearly half a century, a legal framework on their establishment and function is yet to come about in all the states. This is what seen on going through Table 24.01. Only in 11 states and UTs, a legislation on open -jails has emerged. In contrast, there are 17 states and UTs which are yet to proceed into the matter.
Para 19.33.28: Model rules laying down minimum standards for open institutions should be framed.
The point has been pursued further and an attempt has been made to find out as to how many states have framed rules on open - jails. It would be seen that 13 states have taken action in this regard. Andhra Pradesh has introduced the subject of open -air jails / camps in Prison Rules in 1979; Assam has amended the Prisons Act; Himachal Pradesh has framed rules of selection of jail- inmates before they are transferred to open - air jail; Tamil Nadu has inserted provisions on this in its prison manual. It should be possible for other states and UTs to proceed on similar lines.
Para 19.33.1: Open-camp movement should be developed as a positive measure of correctional treatment.
Para 19.33.8: Open camps (Sanganer type) should be developed in each state government / UT as the final stage in the open camp movement.
Eleven states report as having open jails. While Rajasthan has seven open jails, six other have one jail each. How come that several major states have lagged behind in setting up open - jails?
Para 5.8.23 & 19.33.7: All additional institutions to accommodate any future 12 increase in the convict population should be of open or semi-open type.
During last 20 years, many states have set up new open jails: Andhra Pradesh, Gujarat, Madhya Pradesh, Punjab, Rajasthan and West Bengal. Having stared three new open jails, the state of Rajasthan is in the forefront in this regard.
Para 19.33.9: Land attached to closed prisons should be converted into semi-open or open institutions.
As mentioned earlier many Central and District Jails have land attached to themselves. This is a very important resource for setting up agro-based open jails.
Para 19.33.5: The inmate capacity of existing open -institutions should be fully utilized.
It is interesting to note that capacity utilisation of open jails has been far from being optimum. It has been only 10 per cent in Tamil Nadu, 15 per cent in Chattisgarh and 20 per cent in Punjab. It is hardly necessary to point out that jail administration in states and UTs has hardly been alive to the correctional potential of open jails.
Para 19.33.25: The maximum inmate capacity of an open -institution should be 200.
Apart from the under -utilisation of the capacity of open jails, there is yet another issue. Open jails need not be very large as it would contravene the approach and objectives behind them. What is the position in the states and UTs? Largest open jail in Andhra Pradesh is located at Anantapur having 149 inmates; in Assam at Jorhat, 33 inmates; in Chattisgarh at Masgoan, 33 inmates; in Gujarat at Ahmedabad, 60 inmates; in Himachal Pradesh at Bilaspur, 40 inmates; in Karnataka at Koramangala, 43 inmates; in Maharashtra at Paithan, 238 inmates; in Punjab at Nabha, 40 inmates; in Rajasthan at Sanganer, 150 inmates; in Tamil Nadu at Singanallur, 100 inmates and in West Bengal at lalgola, 63 inmates. It would be readily seen that the open
-air jail in Maharashtra, followed by Rajasthan and Andhra Pradesh are somewhat oversized
--in other states these are, inmate- wise, small institutions.
Para 19.33.11: Diversified work programmes including those relating to 13 agriculture and industry should be provided at open-institutions.
As mentioned, open-air jails are work- based institutions. It would be seen that, in most open -air jails, agriculture and agriculture-related work like poultry, dairy, fishery and seri-culture are being undertaken. In Bilaspur, Himachal Pradesh the labour of inmates of the open - air jail is utilised by private contractors. Needless to add, there is considerable scope for introducing market relevant and newer trades.
Para 19.33.14: All work programmes including agriculture in open institutions should be carried out by prisoners themselves under the supervision and management of the prison department.
Para 19.33.10: Open-camps, mobile and permanent, should be set up at public projects to provide employment to prisoners sentenced to less than one year. Ticketless traveller should be employed on railway projects in camps to be financed by the Indian Railways.
As is known, several big and small projects (dam construction, road building, quarrying of limestone, etc.) are going on in public sector. Have any open -air jails been set up at or nearby the site of such a project? Maharashtra reports that it has set up such a prison at Paithan which has a dam site close by. Presumably inmates of this open -air jail are engaged in earth work and masonry work.
Para 19.33.4: Conditions of eligibility of prisoners for admission to open-institutions should be liberalized.
Paras 11.39.24 & 11.39.35: Inmates for open agricultural farms should be properly selected.
Para 11.39.25: Before the prisoners are transferred to open institutions, they should be allowed to work for some time in semi-open institutions.
Para 19.33.6: Open-institutions in any state should be able to accommodate at least 20 percent of prisoners sentenced to one year and above.
For several reasons, transfer to open -air jails is sought after by the inmates. Most states have evolved criteria for this. It would be seen that main consideration is good conduct and behaviour of the prisoner while in 14 a District or Central Jail. This is followed by 'sentence completion'. Since most open-air jails are agro-based, experience of working on farms is preferred in eight states. In Tamil Nadu and Uttar Pradesh, a sort of panel is developed and prisoners, on the basis of their conduct and work, are included in this panel and are called 'star prisoners'. Transfer to open-air jails is from this panel.
The issue of sentence completion has been probed further. What part of sentence a prisoner should have completed before he is considered for transfer to open -air jails? It would be seen that, in Andhra Pradesh, Gujarat, Himachal Pradesh and Uttar Pradesh, the requirement is that the prisoner should have completed at least one-fourth of his sentence. In Assam, Maharashtra, Punjab and Rajasthan it is one-third. On the other hand, in Goa and Madhya Pradesh it is three -fourths of the sentence. The need for uniformity in these criteria is apparent.
In some states, term of imprisonment is also a criterion for transfer to open-air jails. These are Assam (five years), Himachal Pradesh (eight years), Rajasthan (five years), Tamil Nadu (twenty years) and West Bengal (seven years).
Para 19.33.23: Before being transferred to an open - institution prisoners should be oriented about the requirements & responsibilities of living in such an institution.
The regime of open - air jails is distinctively different from other institutions. It is, therefore, necessary that the inmates being transferred to open-air jails are oriented in to the rules and regulations of these open institutions.
Paras 11.39.36 to 11.39.42: Dairies should be developed on open prison farms on commercial lines under proper technical guidance. Dairies in closed prisons should be discontinued.
Looking to the composition of prison population, dairy farming has a great relevance.
Doubtless, most jails have a wide scope for non-conventional energy generation or for setting up of bio-gas plants. Most of them turn out huge amounts of organic waste. Besides all open-air jails have agriculture as their main 15 work. It is then relevant to ask have they set up bio-gas plants? Table 24.17 brings out that this has been done only in two states, namely, in Andhra Pradesh and Gujarat. They have one bio-gas plant each.
In recent years, much emphasis has been laid on 'wind energy' as a source of non- conventional energy. Have open-air jails set up wind mills for this purpose? Available data go to show that an initiative is yet to be taken in this area.
While discussing non-conventional source of energy, attention goes to solar energy. Have open -air jails set up solar plants to generate energy? Available data show that none of the open -air jails have taken to this inexpensive and renewable source of energy.
Para 19.33.13: The system of wages in open-institutions should be rationalised.
As could be expected, inmates of open-air jails are provided wages. It is revealing. In Himachal Pradesh and Tamil Nadu, inmates are provided market or parity wages. In Karnataka, Manipur and Rajasthan they are provided 'minimum wages'. Furthermore, in Chattisgarh and Rajasthan, they are merely offered 'token wages'. The need for uniformity in the wages offered to inmates of open-air jails is loud and clear.
Para 19.33.15: The inmates in open institution should be granted liberal facilities for functional literacy, recreation, cultural activities, community participation, visit to neighbouring towns for marketing and recreational purposes, continued contacts with family, remission of sentences, leave and premature release.
Attention may be turned to other facilities made available to inmates of open-air jails.
Are inmates of open-air jails allowed to receive and inter-mix with members of the local community? It is seen that this facility is available only in a few states (Gujarat, Himachal Pradesh, Punjab, Rajasthan and West Bengal).
In many countries, inmates of open-air institutions have the facility of 'conjugal visits'. In ten states they are permitted to maintain contact with family members.
Six states have higher rates of remission is hardly surprising. For example, in Andhra 16 Pradesh, they are allowed remission of eight days for a month completed in open jail and, in Punjab, they are given a remission of ten days. What is surprising is that Assam, Chattisgarh, Karnataka and Rajasthan do not offer any additional remission to these inmates.
And how about the facility of temporary release to these inmates? In nine states, this facility is granted rather liberally. So is not, however, the case in Rajasthan and Tamil Nadu.
In this regard, the matter of pre-mature release also needs to be looked into. Is it liberal? It is so only in Andhra Pradesh, Chattisgarh and Punjab.
Para 19.33.22: Family reunion of short durations should be allowed to inmates of open-institutions by allowing them to stay with their families in huts to be constructed on the premises of such institutions.
Paras 16.11.13, 16.11.14, 19.33.18 & 19.33.22: The scale of remission for life convicts in semi-open prisons should be liberlised and they should be given the facility of staying with their family members in huts to be constructed on the premises of such institution.
The matter of contact with family members has been focalised earlier. More information has been gathered on this issue. Do inmates put up huts to stay with their family members for short duration? Information gathered shows that this facility is available only in Assam, Punjab, Rajasthan and West Bengal.
Para 19.33.24: Prison offences and punishments for inmates in open -institutions should be separately defined. Inmates not abiding by the rules of the open-institution should be sent back to closed prisons.
In the case of open-air jails, the most common punishment meted out to disturbing inmates is to send them back to the Central or District Jails they have come from. What is the position at the ground level? Available data show that rules provide for this kind of procedure in all the states having open-air jails.
Para 19.33.26: The staff posted at open- institutions should be carefully selected, trained and oriented to correctional philosophy.
17It follows that open -air jail is a correctional institution making heavy demands on the commitment, skill and competence of functionaries. Given this, is carefully selected and trained staff posted in open jails? Table 24.29 brings out relevant data. It is seen that this is done in most of the states. However, in Himachal Pradesh and Maharashtra this has not been possible to do.
Para 19.33.27: The working conditions of the staff at open-institutions should be improved.
More often than not, open-air jails are located a distance away from civilian population, sometimes in remote areas. In view of this, the staff have to be provided proper facilities. Do they have cent-per-cent built-up family accommodation to themselves? Table xxx shows that this has been possible in Chattisgarh, Gujarat, Karnataka, Maharashtra and Punjab. On the other hand, Andhra Pradesh, Assam, Himachal Pradesh, Rajasthan, Tamil Nadu and West Bengal have not been able to provide cent-per-cent accommodation.
How about transport facility for school- going children of the staff? The data supplied by the state go to show that this facility is non- existent. Jail officials working in open-air jails and their families are required to visit shopping centres often located at a distance. Do they have to themselves any official transport facility? Available information is in the negative. Looking to the exigencies inevitable in the working of open- air jails, is the staff provided any special allowance? Again, information indicates that in no state the staff is provided any special allowance.
In Harvard Civil Rights Civil Liberties Law Review Vol. 48, learned author 'Mika'il De Veaux' in the article captioned 'The Trauma of the Incarceration Experience' has highlighted the effects of incarceration, as under :-
"Reports regarding the consequences of incarceration vary greatly. Some researchers report findings of psychological harm, while many others do not.4 Researchers have questioned the 18 validity of studies on the prison experience due to inadequately robust research designs. For example, following reviews of a large number of studies related to the psychological harms that result from incarceration, some researchers found faulty research designs, questionable sampling techniques, and other methodological problems. These factors have led several researchers to conduct studies, in which they ultimately concluded that the psychological effects of incarceration were not substantial, even when the population studied had spent time in solitary confinement. In contrast, a body of literature concludes that the psychological effect of incarceration is substantial, even among those experiencing relatively short-term confinement in a jail or refugee and detention incarceration. Indeed, the prison experience is unlike any other. Sociologist Donald Clemmer noted in his classic book, The Prison Community, that the prison experience is neither normal nor natural, and constitutes one of the more degrading experiences a person might endure. People in prison are likely to report that their adaptations to the constant scrutiny of guards and the lack of privacy are psychologically debilitating. Some literature suggests that people in prison experience mental deterioration and apathy, endure personality changes, and become uncertain about their identities. Several researchers found that people in prison may be diagnosed with posttraumatic stress disorders, as well as other psychiatric disorders, such as panic attacks, depression, and paranoia; subsequently, these prisoners find social adjustment and social integration difficult upon release. Other researchers found that the incarceration experience promotes a sense of helplessness, greater dependence, and introversion and may impair one's decision-making ability. This psychological suffering is compounded by the knowledge of violence, the witnessing 19 of violence, or the experience of violence, all too common during incarceration. Some assert that the psychological effects of incarceration, developed during confinement, are likely to endure for some time following release. Some researchers argue that the psychological pain of incarceration is not inadvertent but inflicted by design. Author Gresham Sykes characterizes these psychologically damaging experiences as "deprivations or frustrations," and suggests that some of these frustrations "appear as a serious attack on the personality, as a 'threat to the life goals of the individual, to his defensive system, to his self-esteem, or to his feelings of security." Thus, in addition to tangible and easily identified forms of punishment, incarceration may inflict more subtle emotional and psychological punishment. Sykes suggests these forms of punishment result from deprivations caused by a loss of liberty, material impoverishment, personal inadequacy, loss of heterosexual relationships, loss of autonomy, and loss of personal security. Moreover, Sykes suggests that the emotional and psychological forms of punishment "of prison life today might be viewed as punishments which the free community deliberately inflicts on the offender for violating the law" or "as the unplanned . . . concomitants of confining large groups of criminals for prolonged periods." A prison experiment in the early 1970s attests to the psychological damage caused by the experience of incarceration. During the Stanford Prison Experiment, a group of college students were randomly assigned roles as guards or as prisoners and then placed in a prison-like environment. Because the prisoner subjects experienced such intense psychological pain in the simulated environment, the researchers terminated the experiment after six days
-- eight days ahead of schedule. A number of the student prisoners experienced "acute psychological trauma and breakdowns"; some pleaded for 20 release from the environment because of "intense pains" and five were released due to the "extreme emotional depression, crying, rage, and acute anxiety" they suffered during their brief, mock incarceration. In one instance, the Stanford professors observed that a student prisoner "developed a 'psychosomatic rash which covered portions of his body." Researchers concluded that "adjusting" to prison life would be difficult for anyone. The experience "can create habits of thinking and acting that are extremely dysfunctional" and permanently change those made to endure it. A. Trauma The origins of the word "trauma" lie in the Greek word for wound, traumat. Trauma is an event in which there is physical harm, the self is wounded, or when a person who directly experiences, witnesses, or learns about a violent event is "damaged" by it. Indeed, even the apprehension of a violent event is particularly stressful when the event involves a family member or close friend. Today, researchers writing about trauma rely on the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) for differential diagnosis of the phenomenon. Often used interchangeably with posttraumatic stress disorder, which is a psychiatric diagnosis, trauma is a subjective experience. There are two types of trauma. Type I Trauma is a level of injury, pain, or shock derived from a rare unanticipated single event, while Type II Trauma is the injury, pain, or shock that results from anticipated, ongoing, or multiple incidents over time. Edwin F. Renaud warns that the experience of an event alone does not lead to the diagnosis. Rather, he observed that symptoms after the event will trigger diagnosis. It is only when a person is rendered helpless or is overwhelmed by an event that the results may be said to constitute trauma. This distinction is important because various individuals are likely to experience a singular event differently. The traumatic 21 experience of incarceration is likely to be varied and to produce both negative and positive psychological results post-release among the formerly incarcerated, in some ways similar to repatriated prisoners of war. An experience, without more, does not make an event traumatic. The conceptualization of trauma is created by the relationship between the event, the individual involved, and her reaction to it. When seeking to characterize an event, researchers have often made assumptions about the nature of the event and largely ignored the subjective component or unique perspective of the individual experiencing it. Professor Andrew Rasmussen and his colleagues argue that researchers often impose their own beliefs about an experience based upon their assumption about its effect, without ever asking those that have undergone the experience about their interpretations of it. Studies about the traumatic experiences of Black males explore these confounding individual and social factors, though such studies still have not been developed thoroughly and the topic is difficult to subject to rigorous scientific methods. These studies typically focus on incidences that occur in the community prior to prison such as physical assaults, sexual assault or molestation, shootings, stabbings, or other problems associated with living in the inner city. Some researchers focus on historical and cultural trauma related to the collective memory of Black people about slavery or the psychological effects of living in a race-conscious society. Although these ideas may be popular and have been advanced by public figures, these discussions are not well developed; they lack any reference to the Diagnostic and Statistical Manual of Mental Disorders and are difficult to study using rigorous research methods.
In well researched article written by learned author 'Andrea C. Armstrong' in 'No Prisoner Left Behind? Enhancing Public Transparency of Penal Institutions' which appeared in 22 Jail Law Journal expressed Current Effects of Incarceration as under :-
The effects of incarceration, both for the inmate and for society more generally, are not limited to the judicial sentence imposed. Rather, how a person is incarcerated (i.e., the conditions in which an inmate serves his or her sentence) can radically shape that person's life, health, and economic prospects. These effects have implications for the communities to which the incarcerated person returns and to society more generally. This Part examines the current effects of incarceration and concludes that incarceration can have debilitating and disproportionate effects. Incarceration practices are creating a permanent underclass in our society. Giovanna Shay describes prisons as "part of a symbiotic structure that reproduces disadvantage for certain groups within society." Prison and jail conditions are a significant part of these disadvantages, as time incarcerated can lead to future unemployment, long-lasting medical and psychological issues, and social isolation. This is fundamentally at odds with the underlying premise of our criminal justice system, namely that the legal punishment imposed is for a specific amount of time, following which the convicted rejoin society. Thus incarceration is intended to serve the goals of punishment for the illegal act, incapacitation from committing additional acts for a period of time, deterrence from committing future acts, and rehabilitation to regain and retain the rights and freedoms lost. Only the most egregious acts result in the permanent incapacitation of the offender and even in those circumstances, the offenders retain their essential human dignity, as guaranteed by our Constitution. This Article focuses on the distinct aspect of prison conditions in fostering a permanent underclass. I do not intend to minimize the disastrous impact of post- incarceration policies, such as restricting 23 access to public services and benefits, scholarships, voting rights, and employment, but rather to highlight how prison conditions themselves can contribute to subordination. Sharon Dolovich identifies several key features of our current incarceration policies, many of which have distinct implications for subordination, including strict limits on visits and communication with family and friends on the outside; . . limited access to meaningful work, education, or other programming; little if any concern for the self-respect of the incarcerated; and 'us' versus 'them' dynamic between incarcerated and custodial staff; and increased reliance on solitary confinement for the purpose of punishment and control. Our prisons and jails are rife with violence (by both inmates and correctional staff), inhumane and unconstitutional conditions, and failures to provide adequate medical and mental health services. These conditions matter. Experiencing these conditions can have lasting effects long after the period of incarceration is over.
The case law is replete with examples of prison sentences that impose extreme punishment through unconstitutional prison conditions. The punishment exacted in these cases entails far more than simply the loss of liberty. One of the more recent Supreme Court cases decided the authority of judges to orderrelease based on the unconstitutional overcrowding of inmates. Another case considered the damages to be awarded to the family of a prisoner who died of penile cancer, which could have been identified and successfully treated earlier but for the State of California's abysmal medical care for detainees. Another relatively recent Supreme Court case considered an Alabama practice of hitching prisoners to a post in painful positions for hours without shade or water as punishment more akin to torture. The Supreme Court invalidated a California prison practice of racially segregating incoming inmates, 24 which according to the Court imposes racial stigma and stereotype on inmates and may have increased the possibility of racial violence. And these are only Supreme Court cases in the twenty-first century.
Ernest Drucker describes the
physical and mental effects of
incarceration, as currently practiced in America, as the "long tail of mass incarceration." Significant and increased risks of HIV/AIDS, other sexually transmitted diseases, hepatitis, and tuberculosis constitute one of the "enduring effects of punishment" long after a person has served his or her formal sentence. Significantly, "[o]ver 40 percent of those in solitary confinement, a widely used disciplinary measure, develop major psychiatric disorders." In addition, the way we incarcerate prisoners can lead to "learned passivity."
"Learned passivity" is the "psychological process of adapting to life in an institution where one is neither expected nor permitted to make decisions, where trust is a liability and intimacy a danger." Prison conditions can also generate crime, both reducing an inmate's chance of effective rehabilitation and increasing the risks for public safety. In Brown v. Plata, the United States Supreme Court recently upheld a lower court's order to reduce the California prison population due to overcrowding. While Justice Kennedy's opinion focused primarily on how overcrowding in California prisons negatively impacts the delivery of critical medical and mental health services, Justice Kennedy also noted that reducing overcrowding could in fact enhance public safety by mitigating prisons' "criminogenic"
aspects. Our prisons and jails are plagued with high rates of recidivism. California estimates that approximately 63.7% of felon inmates released return to state custody within three years. Delaware boasts similar rates for released inmates recommitted to state custody within three years. The failure to 25 provide mental health care, drug treatment, medical care, and skills training significantly affects the ability of an ex-prisoner to successfully re-enter general society. A prisoner may emerge from prison not only without job skills, but also incapacitated for future work because of severe and lasting physical and mental health issues. The conditions of incarceration can have profound effects on the incarcerated, both those eventually released and those remaining in prison for life terms. It is worth summarizing (and emphasizing) what we do know about the operation of prisons, as presented above. The incarcerated develop life-long mental and physical illnesses, instead of job-ready skills. Inmates are subject to enormous discretion and sometimes abuse. The punishment suffered can be well beyond the sentence formally imposed by the criminal judge. The experience of being incarcerated, as it is currently practiced in the United States, seems at odds with a basic commitment to human dignity. In effect, and whether or not intended, prison conditions generate a permanent underclass, one whose "[s]ocial and economic disadvantage, crystallizing in penal confinement, is sustained over the life course."
Moreover, these effects
disproportionately impact racial
minorities and the poor. It is no secret that minority racial groups--particularly African-American and Latino populations--are overrepresented in our criminal justice system. In 2008, one in eleven African-Americans and one in twenty-seven Latinos were under correctional control versus one in forty- five Caucasians. Indeed, as Michelle Alexander and others have argued, our current mass incarceration binge is distinctly tied to continuing attempts to subordinate and control minority racial groups. According to the Bureau of Justice Statistics, in 2011 African- Americans and Hispanics, both males and females in all age groups, were 26 incarcerated at higher rates than Caucasians in state and federal prisons. For males in particular, who are by far the majority in prison facilities, African- Americans are incarcerated at rates of three to nine times those of Caucasians, depending on the age group. Prisoners identifying as Hispanic accounted for approximately 20% of the national prison population and one in three of the federal prison population. More than 60% of all state and federal prisoners are members of a racial minority group.
Similarly, the poor are also disproportionately represented in our nation's detention facilities. Although this data is not consistently collected, what data is available demonstrates that, at a minimum, at least a third of our detention population falls under the poverty threshold at the time of arrest. The number is likely more, since that initial income figure does not include the number of dependents, which would expand the poverty threshold to include marginally higher incomes. At the same time, adults in poverty are approximately 11% of the population, thus they are three times more likely to be arrested than adults above the poverty line. The effects of prison conditions are disproportionately concentrated on marginalized groups and may, in fact, facilitate their further exclusion from society.
In Prison Service Journal (January,2015 No.217), learned author 'Victor L Shammas' in the article captioned 'A Prison without walls : Alternative incarceration in the late age of social democracy' has made following pertinent observations with regard to the Open Jails in Bolt more particularly in Norway :-
"The Nordic societies have concocted a series of alternative penal measures to correct and control criminal offenders. Chief among these is the open prison. In Norway prison administrators regularly 27 channel around one-third of the incarcerated population into minimum- security, open prisons. Here inmates enjoy greater autonomy and freedom of movement, more meaningful work, and increased opportunities for immersion in ordinary society. While open prisons are significantly less expensive to operate than higher-security facilities, largely thanks to the fact that they require fewer security personnel to control the prison population, it remains a contentious issue whether such prisons are better at rehabilitating offenders and delivering reduced recidivism rates. What seems certain, however, is that such prisons are uniquely suited to disciplining and controlling prison populations, crucially, by giving inmates something to lose and then threatening to take it away. Maximum security prisons, on the other hand, are unable to produce fine-grained gradations of incentives and disincentives to regulate inmate behavior for the simple reason that inmates there have practically nothing to lose. This is perhaps the fundamental disciplinary innovation of the open prison: it corrects, in some sense, because many inmates learn to desire to be corrected.
Introduction The United States has witnessed a spectacular boom in prison populations over the past four decades, peaking at some 2.3 million persons behind bars by the early 2010s, and Western Europe continues to converge on its trans-Atlantic counterpart with rising prison populations and increasingly severe conditions of confinement. Austerity policies will likely make matters worse: by creating fertile conditions for the commission of crime, by reducing the funds available to the public sector. But in the face of the seemingly unstoppable tide of proliferating punishment, a few select northern European societies -- Denmark, Norway, and Sweden -- have seemingly withstood this veritable 'punitive turn.' The Nordic countries have relatively low prison population rates: around 70 28 inmates per 100,000 persons, that is, one half of England and Wales' rate of incarceration and one-tenth of the US imprisonment rate. The Nordic societies' prison populations are spread far and wide in relatively small institutions:
Norway's entire prison population could be contained in California's San Quentin State Prison. Fewer than 4,000 inmates are spread out across 44 separate correctional institutions, making Norway's prisons almost comically petite (the smallest jail holds 12 persons), particularly when compared with the carceral behemoths of North America, like the people-processing plant that is Los Angeles Men's Central Jail (with a capacity of more than 5,000 inmates) or Miami's bloated Pre-Trial Detention Center (with its approximately 1,700 beds). Indeed, prison size matters:
evidence suggests that smaller prisons (fewer than 50 prisoners) make for higher staff satisfaction, which could plausibly have beneficial effects on inmates' quality of life. Suggestive of a relative absence of punitive sentiments in the legal system and general population, Norway's prison sentences are relatively short: around two months on average. In Norway, around one-third of prison beds are located in minimum-security, 'open' prisons. Inmates receive quite generous welfare benefits. All inmates who work or study are paid around 300 Norwegian krone (around £28) per working week -- certainly not sufficient to live comfortably in a society that has a high cost of living, but enough to buy snacks, phone credits, and tobacco from the commissary -- and it is very nearly lavish when compared with England's minimum rates of prisoner's pay, a meager £4 per week for prisoners who work (or £2.50 per week paid to inmates who are willing to work but for whom no work is made available, an allowance rate widely ridiculed excessively generous, as 'unbelievable' and 'hugely offensive to taxpayers,' as consisting of a 'handout for doing nothing,' by right-wing 29 politicians and pundits when the program was revealed in the Daily Mail). By this simple metric alone, and correcting for differences in price levels, Norway's prisons are nearly ten times more generous than those operated by Her Majesty's Prison Service. On the whole, the Nordic prison systems seem to perform well, at least within the narrow parameters set by the state bureaucracy:
between 20 and 30 percent of released convicts were convicted of additional crimes within a two-year follow-up period in a study conducted in Denmark, Norway, and Sweden. While such statistics are notoriously difficult to compare, a UK Ministry of Justice showed that nearly 40 percent of a released cohort of offenders had reoffended after two years. No doubt these characteristics have sparked the curiosity and imagination of progressive and liberal elements in the United States and Europe. As an American theologian who visited Aarhus, Denmark in the early 2000s commented, 'Many Americans have felt that the social justice of our dreams has come true in Denmark. The streets are safe and clean, everybody seems to have decent clothing, healthy food and a nice home.' The ambulatory scholar could have substituted Norway or Sweden for Denmark and added the prison system to their catalog of virtues. Indeed, there is no shortage of paeans to Nordic punishment in the world press. Time Magazine judged Norway to have constructed the 'world's most humane prison.' A recent documentary sees a former warden of a New York prison, James Conway, tour four separate prisons in Norway, playing on the dramatic disparities between US mass incarceration and Nordic penal tolerance. At one point, Conway remarks, 'I'm having a hard time believing that I'm in a prison.
Ultimately, what makes the Nordic prison systems unique is not the mundane regularities and empirical details of their institutions. Rather, it lies, on the one 30 hand, in the web of popular mentalities that envelops the process of punishment, those collective representations that construct and construe both crime and punishment in particular ways; on the other hand, in the structure of the welfare state, particularly the generous and universalist character of the assistive and social wings of the state that regularly generate low levels of unemployment, equitable access to educational opportunities, public housing, healthcare, and so on. To imitate punishment Nordic- style is to buy into a whole package of welfare state solutions: quite probably, one cannot construct Nordic- style tolerant, humanist punishment without also buying into the entirety of social democracy at the same time.
Landfall on Prison Island In the autumn of 2011, I spent three months visiting Prison Island, a Norwegian open prison widely regarded as the crown jewel of the nation's penal system. In some ways, it was easy to forget that Prison Island was a prison at all. At first glance, it seemed so strangely mundane. One arrived by way of ferry, walked along a gravel path for about half a mile, along an avenue of trees. Fields surrounded one on all sides where wholesome staple crops were grown and tended. Dotted around the island were a number of small wooden houses where inmates lived in groups of four to six persons. Beyond the fields lay the sea. Much of the island was dotted with trees. There was a path running along the edge of the island, and inmates could be seen running along the path for exercise at night. As one approached the main square, a large chapel built around the fin de siècle became apparent, surrounded by the white-painted school building, a low red stable where horses were kept, and the two-story main barracks where the guards spent most of their time. Inmates walked or rode their 31 bicycles as they moved to and fro between their homes, workplaces, and school classes. Perhaps the fundamental features of this institution were the degree of permeability and porousness of its boundaries to the world outside, evidenced in part by the great regularity of contacts it maintained with ordinary society. There was a constant coming and going of visitors, journalists, social workers, lawyers, construction workers, and correctional staff. Inmates enjoyed spectacular -- albeit gloomy, in the depths of stormy autumn -- views of the constantly roiling sea and the nearby littoral communities with their luminous homes and alluring sense of ordinariness, a constant outlook that was nevertheless tinged with a certain bittersweet flavor for a number of inmates because of the promises outstretched that those same panoramas somehow failed to deliver on. Here, then, was a prison that at first glance had all the appearances of a nonprison. And yet a prison it remained. Many inmates in Norway are permitted eighteen days of home leave per year, and those with parental responsibilities are typically granted thirty days' worth of leave per year. This meant that a certain amount of flux in the prison population was not uncommon. Also, it was not uncommon for a few prisoners every week to travel to nearby towns for dental or medical appointments, or to buy clothes, toiletries, and other necessities, typically under the supervision of prison staff. The reasoning behind such frequent exchanges between the prison and the world outside was that the prison was by design meant to act as a last stop before the convicted offender was released into the community for good. Typically, inmates had served at least half their sentence in a higher- security institution. Therefore, open prisons were meant to act as socialization machines, in the parlance of the prison guards, to reacquaint inmates 32 with some the routines and normalcy of humdrum life. Inmates had their own peculiar language to describe the suffering and sorrow perpetrated on their minds and bodies by long months or years spent behind bars in closed prisons: they were tormented by 'sentencing injuries' (soningsskade), a term with its own peculiar and wistful musicality when pronounced with the rough, working-class vernacular that most of the Norwegian inmates spoke. So goes the reasoning of the Norwegian Correctional Services, in any event, which notes that most inmates at the outset of their prison sentences will 'start off strict,' that is, be confined under strict measures of control, but who will then have to be reacquainted with normalcy before being let loose on society again: transferring inmates to open prisons is 'based on the need for a gradual resetting from prison to total freedom.'17 No doubt there is a tyrannical potential in such 'resetting.' Rehabilitation, a 'return to competence,' wins its legitimacy from the axiom that the fault of the offender's offence lies with the offender alone.18 In Norway's open prisons, however, it is quite readily admitted that the crucial task is to correct those injuries perpetrated by the closed, higher-security wing of the prison system. By and large, Prison Island, with its quaint historic buildings, its ecological farming techniques, and its apparently relaxed conviviality, impressed most visitors with all the apparent opportunities to carry out the task of rehabilitation in a most agreeable manner.
In the State of Uttarakhand, criteria for admission to Open Institutions is as under :-33
State Criteria for admission in open Prisons Who are authorized to decide Age Minimum When due for sending to Prisoners ineligible for Prisoners limit for period of Open Prisons open prison eligible for admiss- sentence to be open ion (in served in prisons years) Closed Prison Uttar 21-50 More than one For Sapurnanand Camps: For Sapurnanand i. A transfer roll of Pradesh years year Camps: Prisoners inmates who fulfill i. For causal and habituals need to be the stipulated (Now (with one conviction) i. Physically unfit with resident of criteria has to be Uttara- sentenced from 1 to 10 unstatisfactory Uttar submitted by closed khand) years : served 1/8 of behavior. Pradesh. jails to the Selection sentence (including Board consisting of remission). ii. Habitual offenders ii. Inspector General of with more than one Physically Prisons-Chairman-
ii. For dacoits sentenced previous conviction. and and Superin upto 5 years: 1/8 of mentally tendent of open sentence (including iii. Escapees and sound prison convener. remission). escape risks. convicts.
The Board is
iii. For dacoits sentenced iv. Political agitators. iii. authoirsed to grant
for 5 to 10 years: have 4 Prisoners approval and
years to serve. v. Prisoners punished free from sanction transfer of
for more than once any convicts to different
iv. For dacoits served 1/8 (per year of their physical receiving open jails.
of sentence and sentenced detention in close deformity
for more than 10 years prison) for more and Superintends of
including lifers : 2/3 of prison indiscipline. infectious open institutions
sentence (including disease screen the convicts
remission) in closed vi. Prisoners convicted before finally
prisons. for promoting sending them to
communal enmity ; open camps.
harboring, robberers
or dacoits;
counterfeiting coins;
insulting or offending
religions and religious
feelings; attempting
suicides, kidnapping
or abducting with
intent to commit
murder, extortions,
and cheating.
vii. Women prisoners.
viii. Prisoners with
'boyish look'
ix. Hired and
professional murders.
For Model Prison
Open Annexe:
i. Self sufficient
dacoits watched for 3
months 1/6 of the
sentence or 5 years or
½ sentence (including
remission) whichever
is earlier.
Justice Mulla Committee on jail reforms has following pertinent observations for administration of open Institutions:-
34"It is disheartening to note that the prison authorities are reluctant to transfer prisoners to open institutions and are not putting to full use even the existing capacity of open institutions. Greater attention, therefore, needs to be paid to the transfer of prisoners to open institutions so that more and more convicted prisoners may avail of the benefits of these progressive institutions. This will require not only liberalization of the conditions of eligibility for admission to open institutions."
This data has been taken from Open Peno- Correctional Institutions in India- A Review of Fifty five years Experiences and Expectations written by Khushal I. Vibhute.
Learned author has also recalled the the following advice tendered in 1973 by Bureau. It recommended:-
"Only trained and well adjusted personnel who accept the importance of personal knowledge and understanding of prisoners in their charge and have the qualities of leadership, integrity and humanity should be posted to open prisons. When trained staff is not available, arrangements should be made for proper orientation for running an open prison before they take up their duty. Literature with particular emphasis on the treatment of prisoners in open conditions should be developed and the Superintendent should also be given necessary talks to the newly posted staff. It would be preferable, if the newly posted staff is allowed to observe the programmes of an open prison for a fortnight before they actually take up their new duties. The custodial staff should also be given similar orientation and training for their specialized duties in an open prison. Staff meetings should be held as frequently as possible to discuss programmes and policies in open prisons.35
In 1983, Justice Mulla Committee has made following pertinent observations :-
"The staff at the closed prison is generally custody oriented and when it is posted to open institutions it values security and discipline more than welfare, rehabilitation and informal relationship with the prisoners. We were distressed to find at some of the open institutions that even the higher executive staff did not know the basic philosophy and principles on which these institutions were supposed to run. In one closed prison, prisoners selected for and awaiting their transfer to an open institution were sent out to work in the jail garden in fetters. The ideal position will be to have separate staff for open institutions but this is not practicable in view of the small number of open institutions. We are, therefore, firmly of the opinion that the staff at the open institution as well as at the reception centres for such institutions should not only be carefully selected but should also be given special training from time to time regarding the philosophy and management of open institutions.
Their Lordships of Hon'ble Supreme Court in AIR 1974 SC 2092 in the case of "D. Bhuvan Mohan Patnaik and others Vs. State of Andhra Pradesh and others"
have held that convicts are not by mere reason of the conviction, denuded of all the fundamental rights. Their Lordships have held as under :-
"6. Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison- house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to "practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold 36 and dispose of property for the exercise of which incarceration can be no impediment, likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law."
Their Lordships of Hon'ble Supreme Court in AIR 1978 SC 1675 in the case of "Sunil Batra Vs. Delhi, Administration and others etc." and "Charles Gurmukh Sobraj Vs. Delhi Administration and others" have held that a prisoners' liberty is in the very nature of things circumscribed by the very fact of his confinement. Conviction for a crime does not reduce the person into a non-person whose rights are subject to the whim of the prison administration and, therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguards. Their Lordships have held as under :-
"38. A note in Harvard Law Review18 commenting on Weems v. United States urges such a progressive construction:
"The inhibition of the infliction of 'cruel and unusual punishment' first appears in the Bill of Rights of 1680, at a time when the humanity of Judge Jeffreys of Bloody Assizes' fame and of his fellows under the Stuarts, loomed large in the popular mind. ... In the eighth Amendment to the Constitution of the United States the same prohibition is found . .. (Courts) have held that whatever is now considered cruel and unusual in fact is forbidden by it. Another difference of interpretation intersects these divergent views and separates the Courts which confine the words to the kind or mode of punishment from those who extend their meaning to include as well its degree or severity. In a recent case concerning such a provision in the Bill of Rights of the Philippine Islands, which has the same meaning as the Eighth Amendment, the Supreme Court of United States, committing itself to the most liberal interpretation, not only held that the 37 clause was concerned with the degree of punishment, but approved of the extension of its scope to keep pace with the increasing enlightenment of public opinion. (Weems v. United States, 217 US 349 (1910)) It is, indeed, difficult to believe that a law passed in the twentieth century is aimed solely at abuses which became almost, unknown two hundred years before, even though it is an exact transcript of an old Bill. And excessive punishment may be quite as bad as punishment cruel in its very nature. The fear of judicial intermeddling voiced by one of the dissenting judges seems scarcely warranted, for the power to prevent disproportionate punishment is to be exercised only when the punishment shocks public feeling. With this limitation, the progressive construction of this clause laid down by this case seems desirable.
53. Is it legal or legicidal (sic) to inflict awesome loneliness on a living human? The lesser poser to the prison administration is, what is its authority, beyond bare custody, to wound the condemned men by solitary confinement? Indeed, the Additional Solicitor General, at the threshold, abandoned such an 'extinguishment' stance ambiguously lingering in the State's counter-affidavit and argued only for their realistic circumscription, since a prison context affects the colour, content and contour of the freedoms of the legally unfree. The necessary sequitur is that even a person under death sentence has human rights which are non- negotiable and even a dangerous prisoner, standing trial, has basic liberties which cannot be bartered away.
The Cooper effect and the Maneka armour vis-a vis prisons
57. 'Prisons are built with stones of law' (sang William Blake) and so, when human rights are hashed behind bars, constitutional justice impeaches such law. In this sense, courts which sign citizens into prisons have an onerous duty to ensure that, during detention and subject to the Constitution, freedom from torture belongs to the detenu.
212. These two petitions under Article 32 of the Constitution by two internees confined in Tihar Central Jail challenge the vires of Sections 30 and 56 of the Prisons Act. Sunil Batra, a convict under sentence of death challenges his solitary confinement sought to be supported by 38 the provisions of Section 30 of the Prisons Act (for short "the Act"); Charles Sobraj, a French national and then an undertrial prisoner challenges the action of the Superintendent of Jail putting him into bar fetters for an unusually long period commencing from the date of incarceration on July 6, 1976 till this Court intervened by an interim order on February 24, 1978. Such a gruesome and hair-raising picture was pointed at some stage of hearing that Chief Justice M.H. Beg, V. R. Krishna Iyer, J. and P.S. Kailasam, J., who were then seized of the petitions visited the Tihar Central Jail on January 23, 1978. Their notes of inspection form part of the record."
Their Lordships of Hon'ble Supreme Court in AIR 1997 SC 1739 in the case of "Rama Murthy Vs. State of Karnataka" have held that even if overcrowding be not constitutionally impermissible, there is no doubt that the same does affect the health of prisoners. Their Lordships further held that inmates should be given proper medical facilities and appropriate hygienic conditions should be provided. Their Lordships have held as under :-
"20. Even if overcrowding be not constitutionally impermissible, there is no doubt that the same does affect the health of prisoners for the reasons noted above. The same also very adversely affects hygienic conditions. It is, therefore, to be taken care of. 20A. We require the concerned authorities to take appropriate decision on the recommendations of the Law Commission within six months from today.
31. There are horror stories in this regard. The Cellular Jail in Port Blair resounds with the cries of the prisoners who were subject to various forms of torture. This is now being brought home in the Light and Sound programme being organised in that jail, which after Independence has been declared as a national monument. Other jails would also tell similar stories.
49. While on the subject of prayer, mention may be made about the experiment carried out even in the closed Tihar Jail sometime in 1993- 94, when Vipassana meditation was 39 introduced in a big way, which according to Tarsem Kumar, one of the Superintendents of the Jail, brought about a radical change in the living and thinking of the prisoners, as narrated in his book titled Freedom Behind Bars."
Their Lordships of Hon'ble Supreme Court in (1980) 3 SCC 488 in the case of "Sunil Batra Vs. Delhi, Administration." have held that protection of the prisoner within his rights is part of the office of Article 32 and Article
226. Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods 'right, just and fair'.
39. At the outset, we notice the widespread prevalence of legal illiteracy even among lawyers about the rights of prisoners. Access to law postulates awareness of law and activist awareness of legal rights is the condition for seeking court justice. So the first need in the juristic twilight is for the State to produce and update a handbook on Prison Justice, lucid, legible for the lay, accurate, comprehensive and, above all, practical in meeting the felt necessities and daily problems of prison life. The Indian Bar has, as part of its judicare tryst special responsibility to assist the State in this behalf. A useful handbook prepared by the American Civil Liberties Union was handed on to us by Dr Chitale titled THE RIGHTS OF PRISONERS. Law in the books and in the courts is of no help unless it reaches the prisoner in understandable language and available form. We, therefore, draw the attention of the State to the need to get ready a prisoners' handbook in the regional language and make them freely available to the inmates. To know the law is the first step to be free from fear of unlaw.
40. Prisoners are peculiarly and doubly handicapped. For one thing, most prisoners belong to the weaker segment, in poverty, literacy, social station and the like. Secondly, the prison house is a walled-off world which is incommunicado for the human world, with the result that the bonded inmates are invisible, their voices inaudible, their injustices 40 unheeded. So it is imperative, as implicit in Article 21, that life or liberty, shall not be kept in suspended animation or congealed into animal existence without the freshening flow of fair procedure. The meaning of 'life' given by Field, J., approved in Kharak Singh15 and Maneka Gandhi16 bears excerption :
"Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world."
Therefore, inside prisons are persons and their personhood, if crippled by law-keepers turning law-breakers, shall be forbidden by the writ of this Court from such wrongdoing. Fair procedure, in dealing with prisoners, therefore, calls for another dimension of access to law-provision, within easy reach, of the law which limits liberty to persons who are prevented from moving out of prison gates.
41. A handbook meets the logistics of the law in the field. Of course, the prison staff also suffers from the pathology of misinformation or non-education about rights and limitations and this ignoratia juris situation leads to insensitivity to human rights and a test in the handbook of prison law must be a minimum for recruitment. The peril to prison rights is from the uninstructed personnel, apart from the anti-cultural ethos which permeates. It behoves government to insist on the professional requirement, for warders and wardens, of a hearty familiarity with the basics of Prison Law.
42. Rights jurisprudence is important but becomes an abstraction in the absence of remedial jurisprudence. Law is not an omnipotence in the sky but a loaded gun which, when triggered by trained men with ballistic skill, strikes the offending bull's eye. We have made it clear that no prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court. All other freedoms belong to him -- to read and write, to exercise and recreation, to meditation and chant, to creative 41 comforts like protection from extreme cold and heat, to freedom from indignities like compulsory nudity, forced sodomy and other unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self-expression, to acquire skills and techniques and all other fundamental rights tailored to the limitations of imprisonment.
48. Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Article 21 is satisfied. There must be a corrective legal procedure, fair and reasonable and effective. Such infraction will be arbitrary, under Article 14 if it is dependent on unguided discretion, unreasonable, under Article 19 if it is irremediable and unappealable, and unfair, under Article 21 if it violates natural justice. The string of guidelines in Batra1 set out in the first judgment, which we adopt, provides for a hearing at some stages, a review by a superior, and early judicial consideration so that the proceedings may not hop from Caesar to Caesar. We direct strict compliance with those norms and institutional provisions for that purpose.
49. Likewise, no personal harm, whether by way of punishment or otherwise, shall be suffered by a prisoner without affording a preventive, or in special cases, post facto remedy before an impartial, competent, available agency.
50. The court is always ready to correct injustice but it is no practical proposition to drive every victim to move the court for a writ, knowing the actual hurdles and the prison realities. True technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found; still, the awe and distance of courts, the legalese and mystique, keep the institution 42 unapproachable. More realistic is to devise a method of taking the healing law to the injured victim. That system is best where the remedy will rush to the injury on the slightest summons. So, within the existing, dated legislation, new meanings must be read. Of course, new legislation is the best solution, but when lawmakers take far too long for social patience to suffer, as in this very case of prison reform, courts have to make do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far- away marble architecture. Counsel rivetted their attention on this pragmatic engineering and jointly helped the court to constitutionalise the Prison Act prescriptions. By this legal energetics they desired the court to read into vintage provisions legal remedies.
"51-A. Section 27(2) and (3) of the Prisons Act states :
"27. The requisitions of this Act with respect to the separations of prisoner are as follows : (2) in a prison where male prisoners under the age of twenty-one are confined, means shall be provided for separating them altogether from the other prisoners and for separating those of them who have arrived at the age of puberty from those who have not. (3) unconvicted criminal prisoners shall be kept apart from convicted criminal prisoners;
and"
The materials we have referred to earlier indicate slurring over this rule and its violation must be visited with judicial correction and punishment of the jail staff. Sex excesses and exploitative labour are the vices adolescents are subjected to by adults. The young inmates must be separated and freed from exploitations by adults. If Kuldip Nayar is right this rule is in cold storage. It is inhuman and unreasonable to throw young boys to the sex- starved adult prisoners or to run menial jobs for the affluent or tough prisoners. Article 19 then intervenes and shields.
52. Section 29 and connected rules relating to solitary confinement have been covered by Batra case1. But Prem Chand, in this very case, has been sent to a "solitary" or 'punishment' cell without heeding the rule in Batra case1 regarding impost of punitive 43 solitary confinement. We cannot agree that the cell is not 'solitary' and wonder what sadistic delight is derived by the warders and wardens by such cruelty. Any harsh isolation from society by long, lonely, cellular detention is penal and so must be inflicted only consistently with fair procedure. The learned Solicitor General mentioned that some prisoners, for their own safety, may desire segregation. In such cases, written consent and immediate report to higher authority are the least, if abuse is to be tabooed.
53. Visits to prisoners by family and friends are a solace in insulation; and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject, of course, to search and discipline and other security criteria, the right to society of fellow-men, parents and other family members cannot be denied in the light of Article 19 and its sweep. Moreover, the whole habilitative purpose of sentencing is to soften, not to harden, and this will be promoted by more such meetings. A sullen, forlorn prisoner is a dangerous criminal in the making and the prison is the factory! Sheldon Krantz rightly remarks : 18 "In 1973, the National Advisory Commission argued that prisoners should have a 'right' to visitation [Task Force Report, Corrections (1973) at 66]. It also argued that correctional officials should not merely tolerate visiting but should encourage it, particularly by families.
Although the Commission recognised that regulations were necessary to contend with space problems and with security concerns, it proposed that priority be given to making visiting areas pleasant and unobtrusive. It also urged that corrections officials should not eavesdrop on conversations or otherwise interfere with the participants' privacy. Thus, although there may be current limitations on the possible use of the Constitution on visitations by family and friends, public policy should dictate substantial improvements in this area, in any event."
We see no reason why the right to be visited under reasonable restrictions, should not claim current constitutional status. We hold, subject to considerations of security and discipline, that liberal visits by family 44 members, close friends and legitimate callers, are part of the prisoners' kit of rights and shall be respected.
54. Parole, again, is a subject which is as yet unsatisfactory and arbitrary but we are not called upon to explore that constitutional area and defer it. Likewise, to fetter prisoners in irons is an inhumanity unjustified save where safe custody is otherwise impossible. The routine resort to handcuffs and irons bespeaks a barbarity hostile to our goal of human dignity and social justice. And yet this unconstitutionality is heartlessly popular in many penitentiaries so much so a penitent law must prescribe its use in any but the gravest situation.*
75. The final panacea for prison injustice is, therefore, more dynamic, far more positive, strategies by going back to man, the inner man. The ward-warden relationship needs holistic repair if prisons are, in Gandhian terms, to become hospitals, if penology, as modern criminologists claim, is to turn therapeutic. The hope of society from investment in the penitentiary actualises only when the inner man within each man, doing the penance of prison life, transforms his outer values and harmonises the environmental realities with the infinite potential of his imprisoned being. Meditative experiments, follow-up researches and welcome results in many countries lend optimism to techniques of broadening awareness, deepening consciousness and quietening the psychic being.
76. It is of seminal importance to note that the Tamil Nadu Prison Reforms Commission (1978-79) headed by a retired Chief Justice of the High Court of Patna, working with a team of experts, has referred with approval to successful experiments in Transcendental Meditation in the Madurai Central Prison : 26 "Success has been claimed for this programme. It is reported that there is "reduction of anxiety and fear symptoms, greater flexibility in dealing with frustration, increased desire to care for others, and ability to interact in group situations via rational rather than purely aggressive means. Some inmates reported spontaneous reduction in 45 clandestine use of alcohol and ganja; and even cigarette smoking was less. Prison authorities informed us that they noticed personality changes in some of these prisoners, and that they now had calm and pleasant exchanges with these inmates. Their behaviour towards others in the prison "and relationship with prison authorities also changed considerably". There is a proposal to extend this treatment to short-term prisoners also. This treatment may also be tried in other prisons where facilities exist. A copy of the report of the Director of the Madurai Institute of Social Work is in Appendix XI."
78. The omega of our judgment must take the shape of clear directives to the State and prison staff by epitomising the lengthy discussion. To clinch the issue and to spell out the precise directions is the next step :
1. We hold that Prem Chand, the prisoner, has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party.
Lack of vigilance is limited guilt. We do not fix the primary guilt because a criminal case is pending or in the offing. The State shall take action against the investigating police for the apparently collusive dilatoriness and deviousness we have earlier indicated. Policing the police is becoming a new ombudsmanic task of the rule of law.
2. We direct the Superintendent to ensure that no corporal punishment or personal violence on Prem Chand shall be inflicted. No irons shall be forced on the person of Prem Chand in vindictive spirit. In those rare cases of "dangerousness" the rule of hearing and reasons set out by this Court in Batra case1 and elaborated earlier shall be complied with.
3. Lawyers nominated by the District Magistrate, Sessions Judge, High Court and the Supreme Court will be given all facilities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations. This has roots in the visitatorial and supervisory judicial role. The lawyers so designated shall be bound to make periodical visits and record and report to the concerned court results which have relevance to legal grievances.
464. Within the next three months, Grievance Deposit Boxes shall be maintained by or under the orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is deemed fit and suitable action taken on complaints made. Access to such boxes shall be afforded to all prisoners.
5. District Magistrates and Sessions Judges shall, personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make expeditious enquiries thereinto and take suitable remedial action. In appropriate cases reports shall be made to the High Court for the latter to initiate, if found necessary, habeas action.
It is significant to note the Tamil Nadu Prison Reforms Commission's observations :
"38. 16. Grievance Procedure : -- This is a very important right of a prisoner which does not appear to have been properly considered. The rules regulating the appointment and duties of non-official visitors and official visitors to the prisons have been in force for a long time and their primary function is 'to visit all parts of the jail and to see all prisoners and to hear and enquire into any complaint that any prisoner may make'. In practice, these rules have not been very effective in providing a forum for the prisoners to redress their grievances. There are a few non-official visitors who take up their duties conscientiously and listen to the grievances of the prisoners. But most of them take this appointment solely as a post of honour and are somewhat reluctant to record in the visitors' book any grievance of a prisoner which might cause embarrassment to the prison staff. The judicial officers viz. the Sessions Judge and the Magistrates who are also ex-officio visitors do not discharge their duties effectively 28."
We insist that the judicial officers referred to by us shall carry out their duties and responsibilities and serve as an effective grievance mechanism.
6. No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and 47 where such intimation, on account of emergency, is difficult, such information shall be given within two days of the action. Conclusion
79. What we have stated and directed constitute the mandatory part of the judgment and shall be complied with by the State. But implicit in the discussion and conclusions are certain directives for which we do not fix any specific time-limit except to indicate the urgency of their implementation. We may spell out four such quasi-mandates.
1. The State shall take early steps to prepare in Hindi, a prisoner's handbook and circulate copies to bring legal awareness home to the inmates. Periodical jail bulletins stating how improvements and habilitative programmes are brought into the prison may create a fellowship which will ease tensions. A prisoners' wallpaper, which will freely ventilate grievances will also reduce stress. All these are implementary of Section 61 of the Prisons Act.
2. The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity, community contact and correctional strategies. In this latter aspect, the observations we have made of holistic development of personality shall be kept in view.
3. The Prisons Act needs rehabilitation and the Prison Manual total overhaul, even the Model Manual being out of focus with healing goals. A correctional-cum-orientation course is necessitous for the prison staff inculcating the constitutional values, therapeutic approaches and tension-free management.
4. The prisoners' rights shall be protected by the court by its writ jurisdiction plus contempt power. To make this jurisdiction viable, free legal services to the prisoner programmes shall be promoted by professional organisations recognised by the court such as for example. Free Legal Aid (Supreme Court) Society. The District Bar shall, we recommend, keep a cell for prisoner relief.
80. In this connection, it is heartening to note that the Delhi University, Faculty of Law, 48 has a scheme of free legal assistance even to prisoners.
Their Lordships of Hon'ble Supreme Court in (1997) SCC 642 in the case of "Rama Murthy Vs. State of Karnataka" have held that in the context of torture and ill- treatment enacting of a new Prison Act and framing of a model new All India Jail Manual should be considered. The recommendations of Justice Mulla Committee should be considered and needed steps should be taken. Persons authorized should inspect the standard of food and clothing. Prison system afflicted by 9 major problems viz. overcrowding, delay in trial, torture and ill-treatment, neglect of health and hygiene, insubstantial food and inadequate clothing,, prison vices, deficiency in communication, streamlining of jail visits and management of open air prisons. Their Lordships have held as under :-
37. The Mulla Committee has dealt with this aspect in Chapters 6 and 7 of its Report, a perusal of which shows the pathetic position in which most of the jails are placed insofar as hygienic conditions are concerned. Most of them also lack proper facilities for treatment of prisoners. The recommendations of the Committee in this regard are to be found in Chapter 29. We have nothing useful to add except pointing out that society has an obligation towards prisoners' health for two reasons. First, the prisoners do not enjoy the access to medical expertise that free citizens have. Their incarceration places limitations on such access; no physician of choice, no second opinions, and few if any specialists. Secondly, because of the conditions of their incarceration, inmates are exposed to more health hazards than free citizens. Prisoners therefore, suffer from a double handicap.
47. Open-air prisons play an important role in the scheme of reformation of a prisoner which has to be one of the desideratum of prison management. They represent one of the most successful applications of the principle of individualization of penalties with a view to 49 social readjustment as stated by B. Chandra in the Preface to his book titled "Open Air Prisons". It has been said so because release of offenders on probation, home leave to prisoners, introduction of wage system, release on parole, educational, moral and vocational training of prisoners are some of the features of the open-air prison (camp) system. Chandra has stated in the concluding portion of Chapter 3 at p. 150 (of 1984 Edn.) that in terms of finances, open institution is far less costly than a closed establishment and the scheme has a further advantage that the Government is able to employ in work, for the benefit of the public at large, the jail population which would have otherwise remained unproductive. According to the author, the monetary returns are positive, and once put into operation, the camps pay for itself.
48. Reference may also be made to what has been stated in Chapter 5 about the change in the human and social outlook, which activities and programmes of those camps bring about. The whole thrust is to see that after release the prisoners may not relapse into crimes, for which purpose they are given incentives to live normal life, as they are trained in the fields of agriculture, horticulture etc. Games, sports and other recreational facilities, which form part of the routine life at the open-air camps, inculcate in the prisoners a sense of discipline and social responsibility.
The prayers made regularly provide spiritual strength.
49. While on the subject of prayer, mention may be made about the experiment carried out even in the closed Tihar Jail sometime in 1993- 94, when Vipassana meditation was introduced in a big way, which according to Tarsem Kumar, one of the Superintendents of the Jail, brought about a radical change in the living and thinking of the prisoners, as narrated in his book titled Freedom Behind Bars.
53. Let us, therefore, resolve to improve our prison system by introducing new techniques of management and by educating the prison staff with our constitutional obligations towards prisoners. Rest would follow, as day follows the night. Let the dawning ray (of hope) see the end of gloom cast on the faces of 50 majority of prisoners and let a new awakening percolate every prison wall. Let it be remembered that "where there is a will, there is a way". Will there is, way would be found.
Their Lordships of Hon'ble Supreme Court in (2016) 3 SCC 700, titled as "Inhuman Conditions in 1382 (II), In Re"; have held that Prison reforms have been the subject-matter of discussion and decisions rendered by the Court from time to time . Unfortunately, even Article 21 of the Constitution requires a life of dignity for all the persons, little appears to have changed on the ground as far as prisoners are concerned. Prisoners are also entitled to fundamental rights while in custody. The problem of overcrowding has been accentuated with the passage of time. Their Lordships have made pertinent observations, which are as under :-
"1. Prison reforms have been the subject- matter of discussion and decisions rendered by this Court from time to time over the last 35 years. Unfortunately, even though Article 21 of the Constitution requires a life of dignity for all persons, little appears to have changed on the ground as far as prisoners are concerned and we are once again required to deal with issues relating to prisons in the country and their reform.
2. As far back as in 1980, this Court had occasion to deal with the rights of prisoners in Sunil Batra (2) v. Delhi Admn.1 In that decision, this Court gave a very obvious answer to the question whether prisoners are persons and whether they are entitled to fundamental rights while in custody, although there may be a shrinkage in the fundamental rights. This is what this Court had to say in this regard: (SCC p. 504, para 28) "28. Are prisoners persons? Yes, of course. To answer in the negative is to convict the nation and the Constitution of dehumanisation and to repudiate the world legal order, which now recognises rights of prisoners in the International Covenant on Prisoners' Rights to which our country has signed assent. In Batra 51 case2, this Court has rejected the hands- off doctrine and it has been ruled that fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration."
3. A little later in the aforesaid decision, this Court pointed out the double handicap that prisoners face; the first being that most prisoners belong to the weaker sections of society and the second being that since they are confined in a walled-off world their voices are inaudible. This is what this Court had to say in this regard: [Sunil Batra (2) case1, SCC p. 508, para 40] "40. Prisoners are peculiarly and doubly handicapped. For one thing, most prisoners belong to the weaker segment, in poverty, literacy, social station and the like. Secondly, the prison house is a walled-off world which is incommunicado for the human world, with the result that the bonded inmates are invisible, their voices inaudible, their injustices unheeded. So it is imperative, as implicit in Article 21, that life or liberty, shall not be kept in suspended animation or congealed into animal existence without the freshening flow of fair procedure."
4. In Rama Murthy v. State of Karnataka3 this Court (SCC p. 653, para 14) identified as many as nine issues facing prisons and needing reforms. They are:
(i) Overcrowding;
(ii) Delay in trial;
(iii) Torture and ill-treatment;
(iv) Neglect of health and hygiene;
(v) Insubstantial food and inadequate clothing;
(vi) Prison vices;
(vii) Deficiency in communication;
(viii) Streamlining of jail visits;
(ix) Management of open air prisons.
This Court expressed the view that these major problems need immediate attention. Unfortunately, we are still struggling with a resolution of at least some of these problems.
525. In T.K. Gopal v. State of Karnataka4 this Court advocated a therapeutic approach in dealing with the criminal tendencies of prisoners. It was pointed out that there could be several factors that lead a prisoner to commit a crime but nevertheless a prisoner is required to be treated as a human being entitled to all the basic human rights, human dignity and human sympathy. It was pointed out that it is this philosophy that has persuaded this Court in a series of decisions to project the need for prison reforms. This is what this Court had to say: (SCC pp. 177-78, para 15) "15. The therapeutic approach aims at curing the criminal tendencies which were the product of a diseased psychology. There may be many factors, including family problems. We are not concerned with those factors as therapeutic approach has since been treated as an effective method of punishment which not only satisfies the requirements of law that a criminal should be punished and the punishment prescribed must be meted out to him, but also reforms the criminal through various processes, the most fundamental of which is that in spite of having committed a crime, maybe a heinous crime, he should be treated as a human being entitled to all the basic human rights, human dignity and human sympathy. It was under this theory that this Court in a stream of decisions, projected the need for prison reforms, the need to acknowledge the vital fact that the prisoner, after being lodged in jail, does not lose his fundamental rights or basic human rights and that he must be treated with compassion and sympathy."
52. Has anything changed on the ground? The prison statistics available as on 31-12-2014 from the website of NCRB13 indicate that as far as overcrowding is concerned, there is no perceptible change and in fact the problem of overcrowding has perhaps been accentuated with the passage of time. The figures in this regard are as follows:
53 Central Jails District Jails
Capacity 1,52,312 1,35,439
Actual 1,84,386 1,79,695
% 121.1% 132.7%
Undertrials 95,519 (51.8%) 1,43,138 (79.7%) The maximum overcrowding is in the jail in the Union Territory of Dadra & Nagar Haveli (331.7%) followed by Chhattisgarh (258.9%) and then Delhi (221.6%).
Their Lordships of Hon'ble Supreme Court in (2016) 10 SCC 17, titled as "Inhuman Conditions in 1382 (II), In Re"; have issued directions for Model Prison Manual for Juveniles in line with Model Prison Manual, 2016. Their Lordships have made pertinent observations, which are as under :-
"2. When this petition was listed on 14-3- 20162 we had noted that the Ministry of Women and Child Development of the Government of India had set up a Committee on 24-2-2016 for drafting a Manual similar to the Prison Manual prepared by the Ministry of Home Affairs of the Government of India concerning issues pertaining to juveniles in custody either in observation homes or special homes or places of safety in terms of the Juvenile Justice (Care and Protection of Children) Act, 2015. We were informed that although the Committee was required to submit its report by 31-5-2016 the time given was rather short. We were in agreement with the Member-Secretary of the Committee in this regard and had expressed the view that there was no need to show undue haste in the preparation of the Manual or produce a half- baked document. We had also suggested the inclusion of representatives from academia and NGOs in the drafting process.
3. The matter was again taken up on 6-5- 2016 when we were informed by the learned Amicus that the Manual for juveniles in custody would take about three months for completion. With regard to overcrowding in 54 jails, the learned Amicus submitted that there are several jails where overcrowding is to the extent of more than 150%, meaning thereby that there are more than one-and-a-half times the number of prisoners than the permissible limit. It was submitted that an excessive prison population has its own problems of hygiene, sanitation, management, discipline, etc. The problem of overcrowding cannot be looked at in isolation. He submitted that in the first instance, the States may be directed to identify jails in which overcrowding is to the extent of 150% or more so that further directions could be given. On the basis of this submission we called for information and now find that the situation continues to be not only tragic but also pathetic. The learned Amicus has drawn our attention vide his note dated 20-9-2016 to overcrowding to the extent of 150% or more in jails in Assam (8), Chhattisgarh (17), Jharkhand (3), Karnataka (7), Kerala (21), Madhya Pradesh (5), Maharashtra (16), Rajasthan (21), Uttar Pradesh (47) and Delhi (12). It is unfortunate that in spite of our directions the prison authorities have not been able to take any effective steps for reducing overcrowding in jails.
6. On the basis of the above, we heard the learned counsel for the parties and the learned Amicus and find that more than sufficient time has elapsed but the Manual for juveniles in custody has not yet been prepared by the Ministry of Women and Child Development of the Government of India. Accordingly, we are left with no option but to direct the said Ministry to expedite the preparation of the Manual and ensure that it is ready positively on or before 30-11-2016.
10. There are a host of decisions rendered thereafter by this Court on the same subject of the fundamental rights and human rights of convicts and undertrial prisoners repeated every decade over the last so many years. We may mention only a few of them: Charles Sobraj v. Supt., Central Jail9, Francis Coralie Mullin v. UT of Delhi10, Nilabati Behera v. State of Orissa11 and D.K. Basu v. State of W.B.12 More recently, in Mehmood Nayyar Azam v. State of Chhattisgarh13 this Court observed in para 38 of the Report as follows: (SCC p. 16) 55 "38. It is imperative to state that it is the sacrosanct duty of the police authorities to remember that a citizen while in custody is not denuded of his fundamental right under Article 21 of the Constitution. The restrictions imposed have the sanction of law by which his enjoyment of fundamental right is curtailed but his basic human rights are not crippled so that the police officers can treat him in an inhuman manner. On the contrary, they are under obligation to protect his human rights and prevent all forms of atrocities." Unfortunately, it seems that the views of this Court over the 50 years (since Prabhakar Pandurang Sanzgiri5 in 1966) have continuously fallen on deaf ears and the situation does not seem to be changing even now.
11. Unless due importance is given to the fundamental rights and human rights of the people, the right to life and the right to live with dignity under Article 21 of the Constitution will have no meaning.
There is no merit in the contention of learned Advocate appearing on behalf of respondents/State that since the number of prisoners has reduced substantially, the land of Sampurnanand Shivir was transferred. The number of prisoners to be transferred to open jail would always be fluctuating. The decision to transfer the land of Sampurnanand Shivir to Government departments, Public undertaking and private individual companies was arbitrary, unreasonable, capricious and retrograde. The concept of open jail is reformatory, correctional with specific focus of rehabilitation of prisoners housed in open jail.
Human rights of the prisoners cannot be taken away by reducing the area meant for open jail. Prisoners do not lose all their fundamental rights while undergoing jail term. They also have natural rights and these are required to be protected under Article 21 of the Constitution of India. We have to show lot of sensitivity and compassion to the prisoners. The object of the establishment of open jail is to 56 reduce stress and prevent dehumanizing effects to the personalities of the prisoners. If the area of the open air jail is reduced, it would give feeling of ordinary jail. Since the convicts are sent to the jail by the judgments pronounced by the courts, it is their constitutional responsibility to ensure that convicts are lodged in jail with basic amenities. The open air jail prepares convicts to face outside the world after their release.
The open air jail provides better freedom, natural surroundings and lesser tension to the inmates.
The first open air prison in the world was established in Switzerland in 1891. In the State of U.P., first open air prison camp was established in 1953 for the construction of dam over Chandraprabha River near Banaras. After completion of this dam, the prisoners were shifted nearby place of constructing the dam over Karamnasa River.
Sampurnanand Shivir was largest open prison in the world. However, now by reducing the area, it has lost the status of largest open air jail.
According to the research made by learned authors quoted hereinabove, the prisoners are likely to suffer psychological debilitating. They also suffer mental deterioration and apathy. They are uncertain about their identities. They suffer from normal stress, psychiatric distress and paranoia. Decision making ability is also affected. They are emotionally less stable. There is acute psychological trauma and break down. Their problems are further aggravated by not getting adequate medical and health facilities. There is overcrowding in the prisons. The quality of food is not upto the mark. The open jail is last place before the prisoner is released into society.
57Every prisoner should be educated for recreations i.e. reading of books, newspapers and periodicals, listening of radio, yoga classes. There should be participation in outdoor and indoor games.
State Government should not have transferred the land of Open Air Jail to any individuals, companies, Government undertakings and Government departments defeating the very purpose of establishment of Open Air Jail. Purpose of Open Air Jail is to keep inmates busy and to make them disciplined and to restore their dignity. State Government should also take necessary steps to give employment to the prisoners after their release. Prisoners have fundamental and human rights. It is duty of State Government to protect their rights. State of Uttarakhand is a progressive State where industrial training is also imparted to the prisoners.
We can borrow the ideas from developed countries, how they run their jails including open air jails more particularly in Scandinavian countries.
Accordingly, the writ petition is allowed by restraining the State Government/respondents from transferring any land belonging to the Sampurnanand Shivir to any person except to the State or State instrumentalities that too only for public purposes such as school(s) and hospital(s).
(Sudhanshu Dhulia, J.) (Rajiv Sharma, J.) 10.01.2017 JKJ