Open Access Research Article
PRISONS IN INDIA With Special Reference to The Issue of Over Crowding, understaffing and Underfunding of the Prisons in India during and post COVID -19 Pandemic - by Pranjal P. Nayar
Published Paper
Article Details
PRISONS
IN INDIA
With
Special Reference to The Issue of Over Crowding, understaffing and Underfunding
of the Prisons in India during and post COVID -19 Pandemic
Author: Pranjal P. Nayar
(Ph. D research scholar)
Author institute: Amity School of Law,
Mumbai
ABSTRACT
More
than a two years into the COVID 19 pandemic, and yet it continues to pose as a
challenge for all the policy makers, practitioners and also to those who are
dealing with it head-on every day. Although the matters pertaining to health
and health infrastructure, precautionary processes, the focus on state of the
economy, food security, livelihoods of the citizens, education and access to
online channels of communication to the students, the development of the
vaccine to deal with the virus etc. have all been constantly in attention
because of the media, but not all the issues of the dangers of the Covid 19
pandemic have been looked into. There is still a large amount of population
lodged in the confines of the prisons whose risks to the Covid Pandemic have
not been looked at closely from law and order perspective as well as from the
viewpoint of public health concern. The prison population is perceived to be a
threat to the public safety and order, thus their release from prisons is viewed
as a danger to the society.
This article
endeavors to explore and analyse the issue of overcrowding, underfunding and
understaffing of prisons and its impact on the prisoners. It is also an attempt
made to look at the roles and responses of the prison authorities and the
courts to address these burning issues especially during and post the Covid 19 Pandemic.
Nelson
Mandela's well known assertion says,
"It is said that no one truly knows a nation until one
has been inside its jails. A nation should not be judged by how it treats its
highest citizens, but its lowest ones."
How
applicable is this statement in the present-day?
The
statement is extremely significant in the present time for the very fact that
it causes us to think about how we treat the prisoners in our country. We need
to understand that prisoners have been deprived of just a single right, and
that is their right to freedom of movement. All their different rights,
including their basic rights and basic freedoms, remain.
Inspite
of this, a very grim situation exists in reality, the prisoners in our prisons
are treated with the most undignified and demeaning manner. It is not only
because of the perception that the society has garnered over the years against
the incarcerated but also because of the poor economic status of our country
that our jails are kept at the worst level with
very little funding and budgeting. There is a need to concentrate on the
improvement of jails and to advance basic liberties, considering the fact that
the inmates in prisons are the citizens of our country and ought not be denied
their essential common freedoms as any other citizen.
There
are two ways in which one can associate what is happening in the prisons. One
way is by looking at the criminal
justice system and the delays that keep on happening in the system, and the result
can obviously be seen in the prison population. The reason could arise from the
fact that in terms of resources and attention, very little is being provided to
prisons. The other aspect is that in India, discrimination and marginalization of
the vulnerable group, religious and ethnic minorities can be clearly seen in
the society, this if not further embedded atleast is propagated or extended inside
the prison.
The Indian
prisons have many structural constraints
few important being Overcrowding, Understaffing and Underfunding. According to a report on the prison statistics for
2019 which was released by the National Crime Records Bureau, the number of
inmates as on 31 December, 2019, were 4,78,600 who were lodged in different
prisons in India, while the collective capacity of these prisons was only about
4,03,700 inmates.[1]
This clearly shows that the number of prisoners was 118.5% of the prison capability,
the highest since 2010. This phenomenon is not new in the Indian context,
prisons here have always been housing more inmates than their capacity for
decades now and this problem of overcrowded prisons is only getting worse.
The overcrowding of prisons in the country is an ever
existing problem that is rarely addressed effectively. Even if it is widespread
and long-lasting, it should never become a norm. From a humanitarian perspective,
it is extremely important to address the issue of overcrowding in places of
detention. This is a particularly a difficult task and challenging to achieve,
as overcrowding has diverse and collective reasons, which are largely outside the
prison system. It therefore cannot be looked only at the level of prisons but
requires a complete and synchronized response from a broad range of authorities
also comprising of certain efforts taken at the policy framing level as well
effort taken by the society at large.
If we look at the issue of overcrowding there are multiple
causes that can be linked to this persistent problem in prisons. By observing the global trend, it may be
assumed that the rise in imprisonment rates and overcrowding in prisons are a
direct result of the increase in the criminal activity worldwide. But in
reality, this may always not be the case, there have been studies that have
shown that the rates of imprisonment and crime may develop independent of each
other, or that the increase in the commission of crimes may impact on proportions
of imprisonment but not be constituted as the main factor that influences the ever
increasing rates of incarceration. The increase in criminality may itself be
due to multiple factors like the fact that the acts that were previously not defined
as criminal acts have now been included to the list of acts that to be
considered as offences. Also, some pre-existing offences may have been classified
to become more serious and accorded a minimum fixed prison term.
Especially in the Context of the COVID -19 Pandemic, the
overcrowding of Prisons needed to be highlighted and looked at with a different
perspective. After the order of the Hon’ble Supreme Court which was passed on
23rd March 2020, the various State Governments Across the country
constituted the three-member High Powered Committee (HPC) comprising of the
Chairperson of the State Legal Services Authority to classify the prisoners
into different categories who could be released based on criteria decided by
them. The
HPCs divided the prisoners into 2 categories. The first, the categories of
prisoners identified for release and in the second the categories of prisoners
excluded by the HPCs. The Supreme
Court also asked the under trial review committees (UTRCs) to meet up every
week to deliberate on matters pertaining to the release of the under trials
either on bail or PR Bond. The Court with regard to further reduce the pressure
on the prisons, reiterated the orders passed in the case of Arnesh Kumar v.
State of Bihar[2]
which stated that making arrests in case of persons charged with offences where
the maximum sentence was less than 7 years, should be avoided as far as
possible. The World Health Organization and other United Nations agencies with
regard to overcrowding of prisons during the pandemic also issued a statement
calling on governments around the world to release prisoners who were “at
particular risk of COVID-19” and those who “could be released without
compromising public safety.”
On
April 13, 2020, the court made it clear that releasing prisoners was not
"compulsory" and that its earlier directive was meant to prevent
prison overcrowding in light of the pandemic. This clarification came in
response to numerous public interest lawsuits that called for clearer rules and
better conditions for prisoners.
In
India’s extremely overcrowded prisons, where it was impossible to provide for
hygiene requirements, maintaining social distancing norms was and is a challenging
task. If the States focus had not been
brought to India's inadequately secured jail complexes, the virus would have
quickly spread there, infecting thousands of prisoners.[3]Since
everyone has the right to health, various measures were adopted by the States
to protect the inmates. In accordance to the HPCs' guidelines, the courts
nationwide granted temporary bail to 68,264 inmates until December 14, 2020.[4]
The state was supposed to take action
to reduce jail overcrowding based on the guidelines issued by the HPCs, but the
facts depict a dismal picture. The high rate of jail occupancy and the rise in
the number of cases still before trial demonstrate how the criminal justice
system has only further consolidated its approach to the control of crime. In
the state of Maharashtra, authorities released over 7,200 prisoners by May 2020
to check overcrowding in jails; around 10,000 more were expected to be released
on temporary bail or parole.[5] The Uttar Pradesh government had declared in
May that it would release 11,000 prisoners, including 8,500 undertrials, on
personal bonds for eight weeks.[6]
The release of inmates awaiting trial and the release of prisoners both
decreased in 2020 by 19.6% and 41.2%, respectively. Although it was anticipated
that more prisoners would be freed during the epidemic, there was actually a
sizable decrease.
Apart from the considerable curbs on several
rights of prisoners, the pandemic led to a multiplied burden on the already
under-resourced prisons, not only financially but also in terms of human
resources - with the funds having to be diverted to aid the prison staff and their
families who are going through the danger of contracting the virus. The state
of affairs has clearly displayed the deficiencies of the existing healthcare
provisions inside prisons, and intensified worries of prison staff vacancies
and their growing workload. With suspension of everyday court work and the continuance
of only critical hearings, the case pendency’s have also increased. This has
once again affected the jail populations, growing intervals of detention
pending trial. Correspondingly, with appeal hearings delayed, and early release
trials stalled, convicts have continued to be constrained for longer durations.
In striking disparity to what the situation warranted, instead of releasing
convicts, the governments seemed more at ease exposing them to the dangers of
the Pandemic. The Prison Statistics of India report does not even mention or
analyse the effects of the governments' refusal to decongest jails.
Alongside
the issue of overcrowding of the prisons, the other major matter of concern is
the understaffing of the Prisons. According to the findings of the India
Justice Report 2019, an initiative of Tata Trusts, the prisons in India are
understaffed by at least 33 per cent to 38.5 per cent. The highest vacancies
being found in the officer and correctional staff levels. Because of this
understaffing the workload of the staff has increase which in turn is having an
effect or bearing on the correctional and reformative aspect of the Prison
system.
The
consequences of the issues of overcrowding and staff shortages can be felt by
the prison staff as well as the prisoners. The reasons that have been
associated with staff shortages in prisons are the low salaries, poor training
being imparted to the staff, lack of promotional opportunities, long hours of work,
demanding and strenuous workloads etc.
The
report states that the intention of transforming prisons from places of
detention into places that maximize the chance of returning a reformed person
into society can be achieved through services offered by the correctional
staff, comprising welfare officers, psychologists, lawyers, counsellors and
social workers, among others.[7]
The large number of vacant posts are also hindering the prison administration
to perform its tasks according to the guidelines of the Prison Manual.
According to an article published by
the Times of India[8] states
that the Prisons in India have a sanctioned strength of around 49030 prison
staff at various ranks, of which, the staff strength at present is about 40000.
It clearly shows that the ratio in Indian Prisons between the prison staff and
the prisoners is roughly 1:7. Which shows that only one prison officer is attending
to or is available for 7 prisoners in India, whereas in the UK, 2 prison
officers are available for every 3 prisoners.
The
highly unsatisfactory conditions of prisons and prisoners often gets reported
in India the reasons for these as already mentioned is overcrowding and
understaffing, but apart from that the other issue that plagues the prisons and
the prisoners is the underfunding of the prisons. Availability of adequate fund
is a prerequisite in the effective functioning of a prison institution. India’s
budget for prisons for the financial year 2019-20 was Rs. 6,818.1 crores. The
actual expenditure during this period was Rs. 5,958.3 crores – 87.39 per cent
of the annual budget. Out of this total expenditure, 34.59 per cent was spent
on inmates for provisions such as food, medicines, clothing, and vocational or
educational training.[9] Nationally, nineteen states and UTs spent between ?20,000 to ?35,000 per
inmate annually which is less than ?100 per day on each prisoner.[10]
This money is spent on annually for the upkeep for food, clothing, bedding,
water, sanitation, medical care, hygiene etc.
The
major problem remains with the proper utilization of the budget. Also the deep
rooted woes of corruption in the prison system adds to the gap between the
budget sanctioned and budget actually spent on the actual prisoner. The gap and
discrepancies that exists has led a three-judge bench Hon’ble
Supreme Court headed by Justice M B Lokur the bench, also comprising Justices P
C Pant and Deepak Gupta, stating that "There is a huge discrepancy in this
regard which needs to be looked into. It may also perhaps be necessary to have
the accounts audited to ascertain whether the money is being spent wisely and
whether it is being utilised for the benefit of the prisoners or not.[11]"
Inspite
of the same being directed by the Hon’ble Supreme Court, it can be seen that
there is still a gap between the actual budget apportioned and the budget spent
on the wellbeing of the prisoners during and post the pandemic. The budget
which is sanctioned to these prisons needs to be increased along with priority to
be given to the overall improvement of the prisoner and prisons. The way the
budget handling should be done needs to get appropriate attention to ensure
that the jails are reformed. If the prioritization and allocations of funds is
not done in a proper manner the whole exercise and discussions on jail reforms
will become futile.
When
the liberty of a person is taken away because he/she committed an act
prohibited by law of the land, the State is obligated to look after them and
provide them with proper and timely healthcare. During the pandemic, it was
observed that the governments still continued to indiscriminately incarcerate
people without reasonable care that needed to be taken during the time putting
at risk the prisoners’ wellbeing.
It
cannot be denied that the issue of overcrowding, understaffing and underfunding
is not a new phenomenon and it is not a problem which is restricted to India
alone. However, all these issues assumed greater significance amidst the
COVID-19 pandemic as prison inmates were one of the most vulnerable and
defenseless groups. Starting with the lack of medical care in prisons to
extreme overcrowding along with being abruptly cut off from the world outside,
the incarcerated persons have had to endure the worst form of human rights
violations during the COVID-19 pandemic. The pandemic highlighted and
brought to the forefront the plight of prisons and prisoners which has been an
area overlooked over the years.
The
time has come for the governments to take immediate notice & action to reduce
the overcrowding of prisons by understanding that the overcrowding of the
prisons is a result of criminal justice system not of rising crime rates, the overcrowding
weakens the capability of prison systems to meet the basic human needs, such as
healthcare, food, and accommodation. It also affects the positive reinforcement
of the provisions and efficacy of rehabilitation programmes, educational and
vocational training, and any recreational activities. The unwarranted use of
pre-trial incarceration, and the prison being used for minor, insignificant
offences and petty are one of the crucial reasons for the rise in the prison
population. The problem of overcrowding can be dealt by ensuring an expedited
judicial process through more judicial appointments and meeting the
international norms of judge to population ratio. Arranging for bails based on
personal surety for poor people in petty cases and most importantly develop a
better infrastructure of jails.
The
understaffing too needs to be addressed as a matter of grave concern to ensure
smooth administration of the prisons as well as to not overwork the existing
staff. the Governments need to look deeply into the matters pertaining to fund
allocation and utilization in the prisons to ensure that the basic needs of the
prisoners are taken care of.
Finally,
it
is vital to remember that prisoners have been made only to give up one right,
which is their right to freedom of movement. All other rights, including their
fundamental and human rights, still remain which need to be protected. The
situation in which the prisoners and prisons were during the pandemic is in a
way a reflection of the economic status of the society we live in. Being a poor
nation, our jails are the worst kept institutions with very little importance
given to their conditions, funding and budgeting.
[1] National Crime Records Bureau, Prison statistics 2019,
Website title:Ncrb.gov.in
URL:https://ncrb.gov.in/en/prison-statistics-india-2019
[2] Arnesh Kumar v. State of Bihar
and another, (2014) 8 SCC 273.
[3] Jai Dehadrai, ‘In the Time of
Coronavirus, the Right to Bail is Part of an Undertrial’s Right to Life’, The
Wire (online, 26 March 2020)
https://thewire.in/law/in-the-time-of-coronavirus-the-right-to-bail-is-part-of-an-undertrials-right-to-life.
[4] See State/Ut Wise Prisons’
Response to The Coronavirus Pandemic in India (28 June 2021)
https://www.humanrightsinitiative.org/content/stateut-wise-prisons-response-to-covid-19-pandemic-in-india#Table%20G.
[5] The
Indian Express, ‘COVID-19: Maharashtra releases 7200 prisoners to curb
overcrowding’, 17 May 2020. Available at:
https://www.newindianexpress.com/nation/2020/may/17/covid-19-maharashtra-releases-7200-prisoners-to-curb-overcrowding-2144489.html.
[6] Newslaundry,
‘What’s India doing to keep its prisoners safe from coronavirus?’, 31 March
2020. Available at:
https://www.newslaundry.com/2020/03/31/whats-india-doing-to-keep-its-prisoners-safe-from-coronavirus.
[7] India Justice Report 2019, an
initiative of Tata Trusts
[8]
Readers Blog, by the times of India , Jan 1, 2022.
[9] National Crime Records Bureau,
Prison statistics 2019,
[11] Re-Inhuman
Conditions in 1382 Prisons vs. State of Assam and Ors. WP(C) 406 / 2013
Article Information
PRISONS IN INDIA With Special Reference to The Issue of Over Crowding, understaffing and Underfunding of the Prisons in India during and post COVID -19 Pandemic - by Pranjal P. Nayar
Authors: Pranjal P. Nayar
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/11/24
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.