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PRISONER’S DILEMMA: FROM TRIAL TO CONVICTION By RAJ VARDHAN SINGH
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PRISONER’S DILEMMA: FROM TRIAL TO
CONVICTION
Authored By: RAJ VARDHAN SINGH
Designation: LLM candidate at
Chanakya National Law University.
Institution: Chanakya National Law
University
Email Address: raj1997s@gmail.com
Contact Number: +91 9142545831
INTRODUCTION
Prison system owes it’s genesis with
the civilization itself. Imprisonment as a way of punishing offenders has been
in vogue since ancient times[1].
Prisons and correctional services are deemed to be the ‘tail end’ of criminal
justice system. The punishment is based upon the principle that it must not
degrade human dignity of flesh and spirit in order to keep the society
civilized. The verity lies far away from this principle. History bears
testimony to the fact that prison is regarded as the most opaque institution of
the state as no one can just walk into a prison and ask to be taken around as
one would in case of courts, hospitals and schools. The rule of law has always
advocated the need for treating prisoners as human beings conforming to the
basic standards of humanity and fairness. The words of Justice V.R Krishna Iyer
clearly depicts the current situation in our prisons:
“ In our world, prisons are still
laboratories of torture, warehouses in which human commodities are sadistically
kept and where spectrum of inmates ranging from drift wood juveniles to heroic
dissenters.[2]”
The utility of prisons as an
institution for rehabilitation of offenders and preparing them for normal life
is the motive behind giving punishments as ruled by the Supreme court through
it’s various judgements that it follows reformative theory[3] of
punishment. Thus, this paper suggests a new approach towards the concept of
reformation, which is coupled with the views of Mahatama Gandhi that
‘criminality is a disease- criminal is a patient- reformation is the needed
treatment- prisons are the hospitals- prison staff ought to be the expert
doctors for the criminal patient. The idea is to turn prisons into hospitals[4].
This is the need of the hour as the conditions of the majority of prisons in
India is horrible and many offenders are languishing in jails without trial for
several years. Further, the prisoners are suffering in jails due to non
availability of proper health facility, solitary confinement, inhuman torture
of prisoners, overcrowding etc. This paper attempts to discuss all essential
rights associated with the prisoners along with the desired result in case of
it’s violation with a comparative study with laws of different nations[5].
Further, the paper evaluates the penal provisions which are harsh in nature and
needs to be scrapped or lessened and further a case study is attempted based on
the model of Bastoy prison and various alternatives for under trial prisoners
is also dealt in.
1.1 Objective of the Study.
·
To
make a comprehensive and critical analysis of the entire subject of prision
reforms.
·
To
understand, the need and necessity of prison reforms.
·
To
offer appropriate suggestions to make the prison system more effective and
efficient.
1.2 Scope of the study.
It is limited to the
study of law and policy relating to prisons. This paper further intends to know
the significant role that the Bastoy model will play in bringing prison reforms
in India.
1.3 Methodology.
The research is purely
based upon doctrinal method. The research is analytical and descriptive in nature.
The data for the research has been gathered through various techniques such as
Statutes on prison and prison administration, various judicial decisions, jail
manuals etc.
Indian prison system, it’s core
working and drawbacks have been analyzed from the viewpoint of the prisoners,
keeping in mind their betterment. The paper intends to offer some valuable
suggestion in order to make the system more effective and efficient.
PRISIONER’S RIGHTS:
CONSTITUTIONAL PERSPECTIVE
The
socio-legal framework of India is based on reforming and maintaining human
dignity of the individual. Since the rights of the prisoners are not codified
in India, the Judiciary has recognized certain prisoners rights mentioned
below.
1.
RIGHT TO BE PRODUCED BEFORE A MAGISTRATE:
An arrested person has the right to be produced before a
magistrate within 24 hours of his arrest.[6] This right safeguards the
personal liberty of a person.
2. RIGHT TO BAIL:
Bail is the procurement of release
from prison by a prisoner under trial or on appeal. Provisions w.r.t. bail
grant are provided in CrPC(ss. 436 to 450).[7]
“Bail is the rule and committal to
jail an exception”. This principle has been pronounced by the apex court in
umpteen cases, justifying the fact that until proven guilty, an accused cannot
be deprived of his personal liberty[8].
It also finds place in s.436a(CrPC) which directs bail grant to under-trials
after the completion of half the time of minimum punishment for the accused
offence. In the case of Bhim Singh[9],
it was observed that in spite of incorporation of section s.436a (CrPC)
under-trials continue to remain in prisons in violation of the mandate of the
said section.
3. RIGHT TO FAIR AND SPEEDY TRIAL:
Fair trial is the heart of a
democratic polity that is governed by rule of law, and denial to it is regarded
as crucifixion of human rights.[10]It
is the allowance of fair and proper opportunities to the accused to prove his
innocence.[11]Articles
14 & 16 of ICCPR advances mandate to a fair trial internationally.[12]
The slow motion syndrome[13]
has plagued Indian Judiciary so much so that 67.2% of our prisoners are under
trial, out of which 1.3% remained in jail for more than 5 years, being rebuffed
of justice.[14] Even
after the recognition of Right to speedy trial as fundamental to Article
21 of the Constitution and Article 9(3) of ICCPR,[15]
its reach cannot be seen even marginally, leading to grave breaches of the
fundamental rights of the prisoners. Overcrowded Indian prisons can be
attributed to this very syndrome.[16]
4.
RIGHT TO FREE LEGAL AID:
The promise
of equality before law[17]
has proven to be an empty promise, and has become the scourge of the poor
worldwide. Things which come free are often compromised in quality and the same
can be seen in dissemination of improper legal aid. Article 14 of ICCPR
embodies the principle of access to justice to all. The Convention on
International Access to Justice[18]
came into being to ensure that its State parties provide access to justice to
all, including aliens to the state. While in India Legal Services Authority
Act, 1987 has been enacted to ensure access to justice. It is government’s duty
and not charity to extend free legal aid to its citizens,[19]
in which government has fallen on its face.
5.
RIGHT TO LIVE WITH HUMAN DIGNITY:
The
apex court has promulgated that Article 14, 19 & 21 are available to both
prisoner and freemen.[20]
Article 21, the parent to many rights encloses within itself Right to live with
human dignity.[21]
Treating all persons deprived of their liberty with humanity and with respect
for their dignity is a fundamental and universally applicable rule.[22]
Despite such legal pronouncements, prisons continue to be handicapped with
overcrowded prisons, poor sanitation, inadequate food, , poor medical services,
and improper legal aid, robbing off the prisoners of their basic human rights.
6.
RIGHT AGAINST CUSTODIAL VIOLENCE:
Prisoners
have always been a trifle in the hands of policemen, killed and tortured at
their behest. Custodial death is a sheer violation of Article 21of the
Constitution.[23]NCRB
reports 1496 custodial deaths in the year 2015, with a poor classification of
natural and unnatural death. Collecting evidence and fair investigation is
grueling by the very nature of such deaths being caused under police custody.
Awarding compensation to the next kin has been a practice followed by the apex
court, but it has not resulted in lowering of custodial deaths. The apex court
suggests that custodial deaths be made in itself a crime.[24]
PRISIONS, PENOLOGY AND PENAL REFORMS
The Penal Provisions in India date
back to 1860s when IPC was put to effect, since then the ideology of human
rights have taken a huge leap, bringing in the need for reform.
Death Penalty is the judicial killing of an
offender. Over the past 20 years as many as 141 countries have abolished death
penalty either in law or practice,[25]
even the UN promotes abolishment of death penalty.[26]
Often India was bewildered with the question of its constitutionality but all
disputes were set to rest in the case of Bachan Singh[27] when the apex court held death penalty to be
constitutionally valid. Death penalty as a measure to deter crime has been in
practice since time immemorial but in today’s world it has failed drastically.
Even as some countries continue its use today, the crime rate has not lowered,
instead a negative slope in crime rate has been observed in countries that have
abolished death penalty.[28]
Also, it is the only punishment that neither leaves any opportunity of reform
in the offender nor provides any scope for rectification of error in the
judgment if any.
Understanding the need for prison
reforms, the apex court has come up with measures to ameliorate the prison
system. Supreme Court issued guidelines to the Under Trial Review Committee to
safeguard the fundamental rights of under trail prisoners relating to bail,
habitation, health etc.[29]
Also issued guidelines for High Courts to deal with under trials on a fast
track basis.[30] With
respect to legal aid it has been reiterated that a prisoner is entitled to legal
aid for trial as well as appeal.[31]
Measures to check custodial violence and make it a crime a have been issued to
the government in another recent case.[32]
CASE STUDY: A TURNING POINT
Over the past three decades,
penologists repeatedly have described Indian prison as “in crisis”. The nation
has transformed itself from the mid 1970’s regarding the views towards the
prison inmates. It has departed from the culture where prisoners were seen as
inhuman beings, who were sent in prison in order to be suffered. The judiciary
owes the credit for changing this perception. Despite the verity, that our
prison follows the reformative approach, the reality lies far away from the
truth as overcrowding, absence of necessary things, custodial violence have led
to make prison life far away from the reformative one and the very basic idea
of putting a person behind bar defeats the very purpose of reformation as no
one can be reformed sitting in a cage.
Bastoy prision island is the largest
low security prison in Norway situated a couple of miles off the coast in the
oslo fjord. The criminal justice system in Scandinavian countries[33]
is based on the concept of ‘Restorative Justice[34]’,
which puts more emphasis on repairing the harm caused by crime than punishing
the perpetrators. It also concentrates on the recovery of prisoners and efforts
are made to prepare inmates for their return to the normal world. The Bastoy
prison is based on the same principles.
4.1 Salient features of Bastoy Prison.
Bastoy prison is house to murderers,
rapists, Addicts and thieves, people who would be locked away in maximum
security in prisons in India, roam free here on the island and that too with
minimal security containing 8-10 guards and that too without fencing and yet
there has been only a single attempt of escape, in it’s 32 years old history.
The prison is based on the principle of mutual respect and trust as the guards
deployed here don’t even carry any weapons. The prisoners here live in communal
cottages that includes a kitchen, living room and private bedrooms. The cost to
maintain the facility is much less than other prisons because the inmates are
mostly self sustaining; they do the farming and cook their own meals as well as
maintain their homes.
It is hailed as the world’s first
“Human ecological prison[35]”.
It changes the common understanding of prison in society as a place of
depravation and penance. It is well known that no one can be reformed sitting
behind the bars and can’t be expected to develop real life skills of working
and cooking. This Bastoy model is based on the theory that if prisoners are
treated like animals than they are likely to behave like animals[36].
This model believes that for the victim , the offender in prison curtailed of
his liberty is justice and for the purpose of justice to the society being
served, it is important to treat them as human being and give respect; this way
they learn to respect others. Thus, when they are released they are less likely
to commit crime and become reoffenders.
4.2 Implication in India.
The Indian Judiciary has made it very
clear that it proposes to follow reformative approach but the problems that the
Indian prison have makes it a utopian concept as overcrowding, custodial
violence etc. has already taken their toll on Indian prisons.. 33% of prison
population consists of convicted prisoners. Bastoy model can even be used in
India and can be of great help in freeing up the space in already overcrowded
prisons and reducing the number of reoffenders by actually reforming the
prisoners. The Bastoy model can symmetrically be replicated in India as it is
blessed to have 572 islands, in the Andaman & Nicobar region, out of which
only 38 is habituated. India can very well select islands in the Andaman region
to make it on the Bastoy model. It would also be cost efficient as the
prisoners will be self sustaining. If successful, it may become a place of
reformation for the hardened criminals into law abiding citizens and would
ultimately serve the purpose of punishment.
4.3 New dimensions for under trials.
67% of the prison population in India
is that of undertrials which makes it very important to have a solution for
that class of prisoners among whom there would be many innocents and thus their
rights are in need of urgent protection.
Solution for the plight of
under-trials:
1. Separation of under trials from full
fledged and hardcore criminals. The Bastoy model if implemented will result in
the fulfillment of this concept.
2. The class of compoundable and
bailable offences should be widened.
3. With under trial prisoners,
adjournment should not be granted unless absolutely necessary.
4. Provisions of section 167 Cr.Pc with
regard to the time limit for police investigation in case of accused under
trial prisoners, should be strictly followed by both the police and courts.
5. The concept of open prison needs to
be implemented more vigorously.
6. The Government should start a policy
to pay for the bail bond of the people belonging to poor class as this is a
major reason for the overcrowding of prisons.
CONCLUSION
Gone are the days when prisons were dungeons where prisoners
were lodged to pass their days in dark and dingy cells. The prisons are no more
the institutions designed to achieve only the retributive and deterrent aspects
of punishment. They are now the places where the inmates are lodged not as
forgotten and forsaking members of the society but as human beings who have to
go out in their surroundings as well behaving and reformed persons. The souls
behind the bars cannot be precluded of the basic human rights. However, the
fact remains that it is the police and the prison authorities whose mindset
needs to be changed and it has to be recognized that criminals are one among us
and therefore needed to be treated than punished.
[1]Prison system which is a method of handling
criminals was the result of historic accidents. It was not a carefully thought
out plan. The great prison in Rome was built by Pope Innocent X in 1655. There
were generalised institutions for the care of criminals. The Seventeenth and
Eighteenth centuries saw the rise of "Prisons", "Jails",
"Houses of correction", etc. See John Lewis Gillin, criminology and
Penology (1977), p.372.
[2]V.R.Krishnalyer, A National Prison
policy-Constitutional Perspective and Pragmatic Parameters (1981), p.7.
[3] There is deterrence, but without naked
terror, there is prevention, but by methods that are generally regarded as
just: there is reform, but by' way" of expiation rather than by cure:
there is education, both in knowledge of the laws themselves and in the need to
recognise the rights of others: and there is public denunciation too.
H.B.Action (Ed.), The Philosophy of Punishment (1969), p.282 J.D.Mc Clean and
J.C.Wood, Criminal Justice and Treatment of Offenders (1969), pp.85—
[4]The said thoughts of Mahatma Gandhi was
echoed by Justice V.R.KrishnaIyer in his inaugural address at the Sixth Annual
Conference of the Indian Society of Criminology at Madras on the 25th March,
1977. He stated: "Progressive criminologists across the world will agree
that the Gandhian diagnosis ofoffenders as patients and his conception of
prisons as hospitals mental and moral — is the key to the pathology of
delinquency and the therapeutic role of punishment". Ismail Commission
Report (1977), p.186.
[5]At present in England many prisoners
serving relatively long terms have one short period of home leave near the end
of their sentence. It is intended to be used in seeking employment and making
other arrangements for release. In many countries regular home leaves are
allowed at intervals throughout the sentence. See J.D.Mc Clean and J.C.Wood.
op.cit., p.l4l.
[6] Article 22 of the Constitution of
India & s.67 of Criminal Procedure
Code, 1973
[7]Crimes have been classified into
bailable and non bailable offences in Criminal Procedure Code, 1973. s.436
provides for procedure of bail in bailable offences and s.437 sets out the
provision for bail in non-bailable offences. Although bail is a right provided
to prisoners, it is not absolutely enforceable. Courts exercise wide discretion
in granting bail.
[8]Refusal of bail is a restriction on
the personal liberty of the individual guaranteed under Article 21 of the
Constitution of India; see Sanjay Chandra v. CBI (2012) 1 SCC 40; see also
State of Rajasthan v. Balchand 1977 4 SCC 308; see also Gudikanti Narsimhulu v.
Public Prosecutor 1978 1 SCC 240; see also Gurucharan Singh v. State (Delhi
Admin.) 1978 1 SCC 118 (Unless exceptional circumstances are brought to the notice of
the Court which may defeat proper investigation and a fair trial, the Court
will not decline to grant bail to a person who is not accused of an
offence punishable with death or imprisonment for life).
[9]Bhim Singh v. Union of India 2015
13 SCC 605; see also Re: Inhuman Conditions in 1382 Prisons (2016) 3 SCC 700.
[10]In the case of Sidhartha Vashisht
v. State (NCT of Delhi) 2001 CrLJ 2404 Justice P. Sathasivam opined that “The
investigation should be judicious, fair, transparent and expeditious to ensure
compliance to the basic rule of law. These are fundamental cannons of our
criminal jurisprudence and they are quite in conformity with the constitutional
mandate contained in Articles 20 & 21 of the Constitution of India.”
[11]Mrs. Kalyani Baskar v. Mrs. M. S.
Sampoornam 2007 2 SCC 258
[12]Article 14: (1) All persons shall
be equal before the courts and tribunals. (2) Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty according to law, (3) (c) To
be tried without undue delay. Article 16: Everyone shall have the right to
recognition everywhere as a person before the law
[13] In the bail plea of Babu Singh v.
State of Uttar Pradesh 1978 AIR 527, Justice Krishna Iyer referred to the
delayed justice system as a slow motion syndrome and remarked, “Our justice
system even in grave cases, suffers from slow motion syndrome which is lethal
to “fair trial” whatever the ultimate decision. Speedy justice is a component
of social justice since the community as a whole is concerned in the criminal
being condignly and finally punished within a reasonable time and the innocent
being absolved from the inordinate ordeal of criminal proceedings.”
[14]National Crime Records Bureau
(Ministry of Home Affairs), Prison Statistics 2015, September 2016.
[15]Hussainara Khatoon & ors v.
Home Secretary, State of Bihar; see also Kartar Singh v. State of Punjab 1994
SCC (3) 569.
[16] According to Prison Statistics
2015, published by NCRB, Prison occupancy rate in India is 114.4%.
[17]Article 14 of the Constitution of
India ensures that every citizen is provided equality before the law and
comprises of right to free legal aid to all.
[18] Hague Convention on 25th
October 1980 on International Access to Justice, India is a member party to the
convention since 2008.
[19]State of Maharashtra v.
ManujiPragajiVashi 1995 SCC 5 730; see also Khatri II v. State of Bihar 1981
SCC (Cri)288; see also Article 39A of the Constitution of India; see also
Section 304 of Criminal Procedure Code, 1973
[20]T.V. Vatheeswaran V. State of Tamil
Nadu, A.I.R. 1983 SC 361
[21]Jeeja Ghosh V. UOI, (2016) 7 SCC
761
[22] General Comment no. 21: Article 10
(Humane treatment to persons deprived of their liberty) of ICCPR
[23] D.K. Basu v. State of West Bengal
(1997) 1 SCC 416; see also Ajab Singh v. State of U.P. 2000 3 SCC 521; see also
Murti Devi v. State of Delhi 1998 9 SCC
604; see also Rohtas Kumar v. State of Haryana 2013 14 CC 290.
[24] Re-Inhuman Conditions in 1382
Prisons 2016 SCC SC 121
[25] Amnesty International, Amnesty
International Global Reports: Death Sentence and Executions 2016, Amnesty
International Ltd., 24 (2017); Out of 141 Abolitionist Countries 104 have
abolished death penalty in law and 30 in practice, out of 57 Retentionist
countries 7 have abolished death penalty for ordinary crimes. (hereinafter,
Amnesty)
[26] Centre for Civil and Political
Rights (16th session 1982), General Comment no. 6:Article 6(Right
to Life)of International Covenant for Civil and Political Rights; para 6;
Article 6 (2) to (6) does not make abolishment of death penalty the law, but it
obliges the states to limit its use and restrict it to most serious crimes,
further the committee concludes that all measures of
abolition should be considered as progress in the enjoyment of the right to
life.
[28]Amnesty, supra 24
[29] Re-Inhuman Conditions in 1382
Prisons 2016 SCC SC 121
[30] Hussain & anr. V. Union of
India AIR 2017 SC 1362
[31]Rajoo @ Ramakant v. State of Madhya
Pradesh
[32]Re-Inhuman Conditions in 1382
Prisons 2017 SCC SC 121
[33] Lahti, R. (2000).
Towards a Rational and Humane Criminal Policy – Trends in Scandinavian Penal
Thinking. Journal Of Scandinavian Studies In Criminology & Crime Prevention,
1(2), 141-155. doi:10.1080/140438500300076135
[34]Benson, E. (2003, July/August).
Rehabilitate or punish? Psychologists are not only providing treatment to
prisoners; they're also contributing to debate over the nature of prison
itself. American Psychological Association, 34, 7.
[35]Ryan, R. (2015, February 25). Bastoy Prison
in Norway Is the World’s First Ecological Prison. Retrieved November 28, 2016
fromNewsComAu. News Limited.
[36]Sutter, J. D. (2012, May 24). Welcome to
the world's nicest prison. Retrieved December 3, 2016, from
http://www.cnn.com/2012/05/24/world/europe/norway-
prison-bastoy-nicest/
Article Information
PRISONER’S DILEMMA: FROM TRIAL TO CONVICTION By RAJ VARDHAN SINGH
Authors: RAJ VARDHAN SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/17
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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