FORMULATING A PRAGMATIC PRISON POLICY

FOR INDIA :A LEGAL PROSPECTWE

MANOJ KUMAR

A- INTRODUCTION
The world of Prison i s no longer secret: Prisons have
invited members of the public as volunteers to work with them
for years but in the last two decades this trend has developed
i n an impressive way2. This has helped to know about the
prisons, its inmates and their problems. Accordingly, i t is
evident that the Indian Prison System i s i n crisis. The
dimensions of the problems faced by our contemporary prison
system are such as require prompj and effective action3. A
concerned Supreme Court recently, ordered the expeditious
trial of criminal cases pending for more than five years. It may
come as a shock to the Judges who passed the order, that
there are under trial in our prisons those have spent 20 years
or more behind bars, without actually being convicted4.
*I. The author is a Research Scholar, International Legal
Studies. Jawaharlal
Nehru University. New Delhi, India. E-mail:
[email protected]
2. Comment, Prison Service Journal. September 2000 No 131.
P.l
3. There are 1305 prisons in India (Central Jail 93. District Jail-
257. Sub-Jall 850,
Open Jail-2. Special jail 28. Women jail I?. Borstal
Institution-13 and Juvenile
and Lunatics Camps-13) having the authorized capacity of
214241. Against thts
authorized accommodation the actual prison population is
257235 which is
dominated by the large chunk of under trial prisoners 1 e..
73% This proportion
 of under trial prisoners is rapidly is on increase leading to
overcrowding in Jail
20% in 1998 agoinst 9.33% i n 1996. The percentage of
women prisoners in total
prlson population Is increasing on rapid pace especially in
Bihar. Madhya Pradesh.
Gujrat. Orissa, Andhra Pradesh. Maharashtre and Mizoram,
while inDelhi and
Haryena it is slightly declining or static in comparison to the
year 1996. The problem
of overcrobding in jail Is not uniformly prevailing In all
StatesIUTs. However is 3.18%.
We have the sancl~oned Strength of 49030 of prlson staff
at various ranks out
of which the present stalf strength i s ?round 40000. The
ralio between the
prison staff and the prison populatton is epproxlmately 1:7. It
means odly one
prison officer is available for 7 prisoners. while in UK 2 prlson
officers are
available only for 3 prisoners. (Statistical profile of Prisons in
India prepared
by Bureau of Police Research and Development. Ministry of
Home Affairs,
Government of India, New Delhi as on 31.12.1998)
4. Ral Atuk Krishana. Nacked Truth: Under trials doing time
without convictions.
Hindustan Times, New Delhi, April t g . 2001.
Vol XW FORMULATING A PRAGMATIC PRISON
POLICY FOR I N D I A 177

2. Hence, over crowding i n Prisons, prolonged detention of

under-trial prisoners, unsatisfactory living conditons. lack of
treatment programmes and allegations of indifferent and even
i n human approach of prison staff have repeatedly attracted
the attention of the critics over the years This raises an interest
to undertake a careful study about the e x ~ s t i n g
Indian Laws in
relation to Prisons, to conduct a survey on attempts at prison
reforms in our country and to analyze activism on the subject,
with an objective of ensuring the minimum human rights to the
Prisonerss as well.
B- THE PROBLEM
3. Crime in lndia is showing an increasing trend while there
is an decreasing trend in the reported crime, and there is an
overall upward trend in Prison Population Comparatively6. This
is a matter needs a careful study with regards to crime reported,
procedures for investigation, policies of arrests and award of
sentences. A majority of the persons l o d g e d i n p r i s o n s
consisted of people belonging to the under privileged sections
of society7. Majorities of the prison population consist of first
offenders involed in technical or minor violations of law. Half of
the prison population is under trial,. which is the main reason
for over crowding in prisons. Conditions of living in most of the
prisons are sub-human. Mass approach towards various
problems of prisoners is in vogue. ,

5. It would not be out of place to mention here that accordtng to

the UN Global Report
 on Crime and Justice. 1999, the rate of imprisonment tn our
country IS very low
i.e.. 25 prisoners per one lakh of populatlon In compartson to
Australta (98 1 prts-
oners). In England (125 prtsoners) i n USA (616 prtsoners) and
i n Russia (690
prisoners) per one lakh of population A large chunk of prison
populatlon ts domtnated
by the first offenders say around 90h The rate of offenders and
rectdtvlsts tn
prison populatton of lndian Jails i s 9:l whtle In U K i t IS I 2.
whtch i s qulte
revealing and alarmtng
6. Seq, the National Crime Record Bureau. (NCRB) Gazette and
Crime In India, pre-
pared by NCRB. Ministry of Home Affairs. Govt. of India, New
Delhi.
7. Realities i n indian Prisons Report of the A l l India Committee
on Jail Reform
1980-83, VOI-I. Ch. Ill, PP 18-32.
178 CENTRAL INDIA LAW QUARTERLY
200 1

4. It is shocking to find that all categories of inmates are

huddled together in most of the prisons including; women,
children and young offenders and adults8. The plight of women,
children and young offenders i n prison is really an issue of
grave concerne. [nadequate medical services and absence of
psychiatric services in prisons. add to the difficulties of prison
administration. i n some jails there are mentally ill persons who
have not committed any crime. In the other hand, the existing
prison buildings are not functionally suitable.
5. Prison industries and work programs are archaic and
devoid of any rehabilitative value for inmates. The insertion of
section 433-A i n the Indian Penal Code (IPC), making
mandatory for the life convicts to serve at least 14 years of
actual imprisohment before being considered for premature
release has jumped their spirits for improving their behavior
and work skilllo. There are allegations about prevalent
corruption, mal-practices and mal-treatment of prisoners.
Trafficking in drugs, use of intoxicants, favoritism, unwarranted
use of office, gangsterism, political influence and deprivations
are common things in our prisonsf1. There is no effective system
or machinery for looking into even the genuine grievances of
prisoners1*. There is no proper free legal aid mechanism to
help or guide prison inmates on legal matters. The condition
of sub jails and police lock ups is extremely deplorable. They
are the most neglected institutions of our criminal justice

8. Carlen Pat, Why study women imprisonment. The British

Journal of Criminol-
ogy. Vol. 1994. PP. 131-140.
9. Scaco Anthory M.. Rape i n Prison. Charles C. Thomas
publisher (USA), 1075,
P. 127.
10. Restriction on Powers of Remission or Commutation in
certain cases. Sarkar
on Criminal Procedure, by Prabhas C. Sarkar, Indian Law
House, New Delhi
1997. PP. 1264-65.
11. Kaushik Rarnaswamy. No relief for over-crowding Tlhar,
Hindustan Times.
New Delhi, March 18, 2001, P.2
12. Margaret Carey. Towards the Restorative Prison, Prison
Service Journal, Sep.
2000, NO-131, PP. 10-11.
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 179

system.13 The organizational structure of the department of

prisons i s inadequate and in effective. The administration of
prisons i n the country is still governed by the anti-quoted Pris-
ons Act 1894. The provisions of the Act do not meet the needs
of the contemporary correctional thinking.
6. There is a lack of coordination among police,
. prosectution, judiciary, prison and probation. Any attempt by
voluntary agencies to extend their services for the welfare of
prisoners is looked upon with suspicion by prison personnel.
Scientific approach towards treatment of offenders has not yet
to-be accepted and adopted by prison administration
anywhere
i n India. To be an efficient unit and center for protection and
c o r r e c t i o n a l t r e a t m e n t a p r i s o n must e s s e n t i a
llybea
scientifically manageable unit. Training of prison personnel
has
remaini.ng woefully neglected in India. This is essential not
only
for ensuring efficiency, financial discipline and control but alos
for minimizing corruption i n departmentq5. Protective and
, correctional objective of prisons can be achieved only when
an atmosphere of wholesome opportunity surcharges with a
positive value is created i n these institutions and prisons are
exposed t o such an a t m ~ s p h e r e ~ .
C. PRISON REFORMS I N INDIA : THE HISTORY
7. The contemporary Prison administration in lndia is a
legacy of the British rule. I t i s based on the notion that, the
best criminal code can be of a very little use to a community

13. Neeta Sharma, Uncured, ignored, behind bars,

Hindustan Times, March 18,2001,
P.2.
14, Realities in Indian Prison. Report of the All lndia
Committee o n ~ a t Reforms,
l
1980-83 Vol. 1. Ch. Ill, PP. 18-32
15. Peter M. Carlson. Prison and Jail Admtntstration :
Practical and Theory, Ch. 24-
. corruption of Prison Personnel. An Asper Publication,
Gaithersbung, (1999), PP.
171-77
18. Special issue. Standard for Psychology Services in Jails.
Prisons. CorPec-
tional Fac~litiesand Agencies. Criminal Justice and
Behavior. Vol.. 27. No. 4.
PP. 433-494.
180 CENTRAL INDIA LAW QUARTERLY
200 1

unless there be a good machinery for the infliction of

punishments1?. First time, in 1836 reforms at tndian prisons
was initiated upon the recommended by Lord Macaulay. A
committee namely: Prison.Discipline Committee, was appointed,
which submitted i t s report on 1838. The committee
recommended increased rigorous of treatment while rejecting
all humanitarian needs and reforms for the prisoners. In 1864
the second Commission of Inquiry into Jail Mangement and
Discipline was appointed. While recommending in the same
liner as the 1836 Committee, the Commission made some
specific sugestions regarding accommodation for Prisoners,
improvement diets, clothing, bedding and medical care. In 1877
a Conference of Experts met to inquiry into p r i s o n
administration. The conference proposed the enactment-of a
prison law and a draft bill was prepared. But no attempt has
made at legislating the proposed draft bill. In i 8 8 8 , the Fourth
J a i l Commiss.ion w a s a p p o i n t e d . O n t h e b a s i s o f
recommendation of the Jail Commission of 1888, a consolidated
prison bill was prepared. Provisions regarding the Jail offences
and punishment were specially examined by a conferences of
experts on Jail Management. In 1894 the draft bill become law
by obtaining the assent of Governor General of India. It is the
Prisons Act, 1894, on the basis of which the present jail
Management and administration is operating in Imdia,Even afte;
100 years of the inception, the archaic Prison Act 1894 has
hardly undergone any substantial change. However, the process
of review of the prison problems in India continued even after
this. In the report of lndian Jail Committee-1919-20, for the first
time in the history of prisons the reformation and rehabilitation
of offenders were i d e n t i f i e d as the objectives of p r i s o n
:
adminitratiorP8. Though, the report was radical due t o i t s
reformative approach, but could not be implemented due to

17. Deterrence was the basis of the concept of Prison. Vidhya

Bhushan, Prison
Adrninistrat~on In India. P. 2 0 .
18. Repo!t of lndian Jail Committee - 1919, P. 32.
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 181

the unfavorable political atmosphere that prevailed during that

time.
8. The Government of lndia Act-1935 which resulted in the
transfer of the subject of jails from Centre List to the control
of provincial government and hence further reduced the
possibility of uniform implementation of a prison policy at the
national level. I n 1951, the government of lndia took an land
mark inititatives by inviting the United Nations expert on
correctional work, Dr. W.C. Reckless in order to undertake a
study on prison administration and to suggest policy reform, Dr.
Reckless prepard a report namely, Jail Administration in India.
His
report made a plea for transforming jails into reformation
centers. The revision of outdated jail manuals and introduction
of.16gal substitutes was recommended by himtg. In 1952, the
Eighth Conference of the Inspector General of Prisons also
supported to recommendation of Dr. Reckless regarding prison
reform. ~ c c o r d i n ~ i ~ Govt. of lndia appojnted the All lndia
the ,
Jail Manual Committee in 1957 to prepare a model prison
manual. The committee submitted its report in 1960. The report
made a forceful pleas for formulating an uniform policy and
latest methods relating to jail administration, probation,
a f t e r - c a r e , j u v e n i l e and remand homes, c e r t i f i e d
and
reformatory school, borstals and protective homes suppression
of immoral traffic etc. The report also suggested amendments
i n the Prison Act-1894 to provide a legal base for correctional
work. The committee prepared the Model Prison Manual (MPM)
and presented it to the Govt. of lndia in 1960 for
implementation.
The MPM-1960 is the guiding principle, on the basis of which
the present lndiari prison management is being governed.
9. Both the Central Government and St8te Governments
undertook various initiatives in connection to prison reforms

19. Revlew of Prison Reform. Report ofbthe All lndia Committee

on Jail Reform.
1980-83, Vol. 1. PP. 7-17
182 CENTRAL INDIA LAW QUARTERLY

on the lines of the Model Prison Manual. In 1972, the Ministry

of Home Affairs, Governent of India, appointed a working group
on prisons. It brought out in its report the need for a national
policy on prisons. It also made an important recommendation
with regards to classification and treatment of offenders and
laid down prin&ples. In 1980, the Government of lndia set-up
a Committee on Jail Reform under the chairmanship of Justice
A. N. Mulla. Basic objective of the Committee was to review
the laws, rules and regulations keeping in view the overall
objective of protecting the society and rehabilitating the
offenders. The Mulla Committee submitted thereport in 1983.
The Committee has suggested that the existing di-archy of
prison administration at Union and State level should be
removed20. The Committee specially recommended a total ban
on the heinous practice of clubbing together juvenile offenders
with the hardened criminals i n prisons. Consequently, a
comprehensive legislation has been enacted for the security
and protective care of delinquent juveniles. The Committee also
suggested segregation of mentally disturbed prisoners to
mental asylums21.
10. Again 1987, the Government of lndia appointed, Justice
Krishna lyer Committee to undertake a study on the situation
of women prisoners in India. It has recommended induction of
more women i n the police force i n view of their special role i n
tackling women and child offenders22. Lastly, i n 2000. the
Ministry of Home Affairs. Government of lndia appointed a
Committee for the Formulation of a M O ~ B I
Prison Manual which
would be an pragmatic prison manual, i n order to improve the
Indian prison management and adminsitration according to the

20. Siddique Ahmad, Criminology; Problems and Perspective.

Eastern book Com-
 pany. Lucknow (1997). P. 150
21. Summery of Recommendations, ibid, Ch. XXIX. PP. 365-
402
22. Siddique Ahmad, Criminology : Problems end Persopective,
Eastern Books
Company. Lucknow 1997. P. 151
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 183

international standard. The work of the Committee is under

D,. lndian Prison Legislations : A Survey

I . The domestic legislation pertaining to the management
and administration of prisons in India are scattered in different
Acts at the national level. ~ h e s e as follows :
are
Existing Laws
1. The Prison Act - 1894.
2. The Prisoners Act 1900.- .
3. The Transfer of Prisoners Act - 1950.
4. The Prisoners .(Attendance in Courts) Act - 1955.
Forthcoming Laws
1. The lndian Prisons Bill - 1996, -
2. The Prisons Administration and Transfer of Prisoners Bill
- 1998.
3. Teh Prisons Management Bill - 1998.
12. Some important provisions of the aforesaid Acts and
forthcoming Bills are being discussed in some details below 24
The Prisons Act - 1894
13. The Prisons Act, 1894, streamlines .a general and
uniform footing of prison administration throughout the
country.
I t has provided for separation of prisoners on the basis of age,

23. Data colleted from the Bureau of Polic Research (L

Development. Ministry of
Home Affairs, Govt. of India, New Delhi.
24. Besides the aforesaid. there has been a number of Acts those
plays an impor-
-
tant role for the management of prison in India. These are,
lndian Lunacy Act
-
1952. Civil Jail Act 1874, Borstal School Act, Habnual
Offenders Act. Young
-
Offenders Act, Probation of Offenders Act 1958, Children Act,
Provisions of
Jndian Penal Code. Civil Procedure Code and Criminal
Procedure Code etc.
184 CENTRAL INDIA LAW QUARTERLY . 200
1

gender, stage of proceeding, nature of crime and p u n i ~ h m e n

t~~.
The Inspector General (Prison) has made the supreme authority
for the general administration, supervision andcoordination
of prisons in a state. Each prison generally headed by a
Superintendent assisted by other subordinate. The medical
officer has made responsible for over all health condition and
care of prisoners. According to the provision the sick prisoners
can report to Deputy Superintendent of Prison i f there is an
genuine problem of health service26. The power of prison
executive staff to inflict punishment for prison offences are
restricted to maintain discipline. Only the officers equal to the
rank of Superintendent and above are empowered for prison
punishment. While the Prison Act, 1894 i s based on the
principles of deterrent theory of punishment but female and
civil prisoners are excluded from punishment of handcuff, bar
fetters or whipping. If an inmate commits willful disobedience,
assault, use of criminal force, insult, treating immoral and
indecent behavior, refuses to work, causes willful damage,
tempering, false accusation and conspiring to escape than in
order to control them the Act provides for punishments like :
warning, labour (7 days), hand cuff, fitter, confinement, penal
diet, etc., subject to the exmination and issue of certificate of
fit by the medical officer in order to sustain the punishment.
In case a prisoner committed a heinous crime, the Act provides
for initiation of proces by the District Magistrate upon the
recommendation of the Prison Superintendentz7.Besides the
above, the Act enumerates comprehensive plans on the issues
like, prison administration, health care, clothing, bedding,
sanitation, pre-release and employment of prisoners under
different chapters. With the aforesaid mandates the Prisons
Act since the date of inception i.e., 1st day of July - 1894 has
25. The Prisons Act - 1894. Ch. V. Sec -27-30 -
26. ibid, Ch. VIII, Sec - 37-39
27. ibid, Ch. 11. Sec - 45-54
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 185

been providing a comprehensive legal frame work for the

management of Prisons in India.
The Prisoners Act 1990
13. The Prisoners Act 1900 consolidate the law relating to
prisoners confined by the order of court. I t authorizes the
officer in-charge (OIC) of a prison to receive and detain a 1 1
persons duly committed to his custody. After execution the
OIC have to return the writ, order, or warrant etc., to the issuing
a ~ t h o r i t yPart Ill of the act specifically deals with priosners
~~.
i n presidency towns. For the implementation of this provision,
a Superintendent of Police to be appointed by the State
Government. If any writ, warrant etc. issued by the High Court
under criminal jurisdiction, it shalt be executed by a police
officer not below the rank of Superintendent af Police appointed
for this purpose according and under the Act29.
The prisoners Act 1900 applicable to the detention of
young offenders in the reformatory school.. It gives authority to
the OIC for execution of sentence, order and warrant of
subordinate courts and tribunals. In case of doubt, the OIC
shalt refer the matter to State Government after detaining the
convict or accused for the time beingJ0.Special provision has
been made for tunatic prisoners, those to be kept i n Lunatic
asylum and could be discharged by the order of State
GovernmentJ1.The State Government and Inspector General
(IG)
of Police has powerto order for removal and discharge of
prisoners those granted free pardon according t o t h e
recommendation of the High Court3*.

28. The Prisoners Act - 1900. Part I I , S c, -

 e .34
29, ibid, Sec. 3-4
30. ibid. Part IV. Sec. 14-18
31. ibid, Sec. 30
32. ibid, Part VI 8 Vlll
186 CENTRAL INDIA LAW QUARTERLY

The Prisoners (Attendance i n Courtst Act, 1955

14. The Act provides rules and procedures for the attendance
of prisoners in Courts, in persons, for obtaining their
evidence
or for answering criminal charges. The Civil and Criminal
Courts
has power under the Act to require the appearnace of
prisoners
to give evidence or answer any question. Such judicial orders
shall be forward to the OIC of the prison by Judicial Officer
not below the rank of District Judge as Judicial Magistrates -
I. This jurisdiction is however limited within a State only33.
The OIC of prison shall take the concerned person to the
court
and cause him to be detained in custody near the court until
the completion of ,court process3. If a prisoner could not
brought before the court, the Magistrate has power to issue
Commission for examination of prisoners inside the jail35.
In
the other hand, the State Government has power to exempt
certain person from personal appearance before court after
detention and to make rule in this regard36.
The Transfer o f Prisoners Act. 1950 b

15. This Act provides mechanism for the inter-state transfer

 of prisoners . The government of the State with the consent
of
. the other State, by order, can issue a process for the removal
of prisoners from the prison of one State to another. The
prison
officers have to abide by the policy decisions of the both
Governrnetn~~~.
Forthcoming Laws
16. After years of being tolerated with a mixture of
cynicism.

33. The Prisoner8 Attepdance in Courts Act lO55, Sec 3

34. ibld, Sec. 5
35. ibid. SOC. 7 $

36. ibid. Sec. 4 & S

. 37. -
The Transfer of Prisoner Act 1955, Sec. 3
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 187

and apathy the issue of prison reform become a prime agenda

of both Central and State Governments now a days. As a result,
several new laws in connection to prison has coming forward
at the national level. These are as follows:
The lndian Prison Bill- 19963a
17. The proposed lndian Prisons Bill - 1996 is based on an
outline prepared by the National Human Right Commission
(NHRC) which has been criculated among State governments
and Union Territories f ~ their comments, suggestions and
r
observations. The bill has emphasized an urgent need for bring
the existing lndian prison system up to the tune of the modern
criminology and penological thinking and to effectively cater
 to the changed and changing demands for the society i n
transition.
18. According t.o the recommendation of the Mulla Committee
a separate chapter about rights and duties of Prisoners has
included in the proposed bill. These are namely; right to
human
dignity, right to access of law and sped trial, duty to obey law
full orders and instructions, to abide by prison rgules and
regulation, to respect hlrman dignity of fellow prisoners and
staff, to refrain from making false and exaggerated allegation,
to use government property with due care, to assist prison
authorities in performance of their etc.
19. The bill clearly specified that the administration should
deal with prisoners in conditions compatible with human
dignity.
b

38. -
~n outline of the lndian Prisons Bill 1996, is prepared by
the National Human
Right Commission, of India. The Commission a National
Conference on Human
Rights of Prisoners on Nov. 14. 1995. The Conference
recommended to set up a
Core Group for the finalization of : AN OUTLINE OF THE
INDIAN PRISONS
BILL, 1996. This Outline was circulated to various States
and Union Territo-
ries. This document was not legalistic in its language,
contents and form. It was
a statement in simple prose of the ideas of the Core Group.
39. ibid. Ch. II, PP. 2-3
188 CENTRAL INDIA LAW QUARTERLY
200 1
 It called upon the State Governments to workout definite
norms
for accommodation of prisoners. For this purpose, it has
suggested a comprehensive plan regarding residence,
sanitation, health care and fooding40.While recognizing
every
other aspects of prison management, the Bill specificalby
highlighted the need for an effective and adequate aftercare
strategy and staff development mechanism in order to
maintain
a pragmatic prison management policyJ1. The Bill also
suggested for the establishment of an Advisory Board for
the
development of prisons and correctional services under the
Chief Secretary of the State to advise the Government on
relevgnt issuesJ2.
The Prison Administration and Trsatment of Prisoners Bill
1998
20. The basic objective of the bill is to introduce a
progressive
legislation on prison, i n order to reform the prison
administration in the country and to lay greater emphasis
on
the care and treatment-of prisoners in the line with the
current
correctional humanism permeating penal sanctions. The
Bill
while recognizing the fact, that the Parliament has no
power
to make law for the states with respect to prisons and
prisoners, i t explained the untility of Article -249 and 252
of
the Constitution in order to legislature Model Prison Laws
at
the national level and its applicability at the Sate level.
25. A survey on the provisions of the bill shows that, it has
 incorporate all basic and relevant points of the previous
legislations and manuals on the subject of prison

40. ibid, Ch. V. PP. 6-7

41. bid. Ch. XI1 4 XW, P . 21-23
P
42. ibid, Ch. XVI. P. 25
49. The National Human Rights Commirrion hat
formulated a drrlt of THE PRISONS
(ADMINISTRATION AND TREATMENT OF
PRISONERS) BILL, lOS8. bared on An
outline of the Indian Prisons Bitl, 1996 as dlscussed
earlier.

..
.
. .. ..
-.-. -
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 189

administration in India. The Bill has given a larger emphasis

on the development of prison infrastructure with necessary
amenities and to afford the inmates with minimum recruitment
and rights of man and the establishment and administration of
prisons44.The Bill recognized some new category of prisoners
like: security risk prisoners, persons suffering from infectious
diseases, mentally ill persons, drug addicted person, person
involved in sociopolitical agitation, preventive detenu and person
who had courted arrest on any political cause45.On the issue
of prison discipline and punishment, the proposed Bill strongly
recommended the application Oof rule of national justice, as a
pre-condition at the time of punishing the inmates4$.The Bill
gives
due attention to issues like, after care, rehabilitation of prisoners,
open institutions, prison facilities, visitors etc. Most importantly
it
suggested some amendments in lndian Penal Code and Criminal
Procedure Code in connection to punishment and imprisonment
under
various Sections4.
The Prison ~anagement
Bill-19984e
22. The Prison Management bill 1998 aims at consolidating
and amending the lndian laws in relation to prison. The
proposed
Bill while recognizing the right and duties of prisoners as of
the lndian Prisons Bill-1996, also enumerates the duties of the
prison staff. Accordingly, every officers of a prison shall all
6me avoid all contact calculated to unduly irritate or among
any prisoners, treat every prisoners with tact, good temper,
humanity and strict impartiality, with all necessary kindness,
andkonsideration to every prisoner, by maintain strict discipline
 -
U . The Prison Administration and Treatment of Prisoners Bill
1998, Ch. II. P.P. 7-9
45. ibid, Ch. II, PP. 9-10
*
46. ibid. Ch. VIII. Sac. 15 8 16, PP. 37-38
47. ibid, Schedule 3. PP. 69-71
48. This is draft bill prepared by theGovt. of India on the basis
of An outline of the Indian
Prisons Bill. 1996 and The Prisons (Administration and
Treatment of Prisoners) Blll.
1998 prepared by the NHRC.
CENTRAL INDIA LAW QUARTERLY

and enforce all laws, rules and regulations in order to discharge

all of the duties. assigned to him49. Specific guidelines are
suggested t o maintain integrity in the public office holders i n
the prison50. The proposed bill has given special attention for
the protection of under-trial prisoners. The State Government
shall provide to every unconvicted criminal prisoners transport
facility to carry them conveniently to the court of taw and
adequate strength of police force shall be deptued as t o
sufficient for his protection during the period when he is taken
out of the prison for such pruposes51. It empowers the State
Government to establish open institutions and to prescribe rules
for the proper management of the same52.Section-71, identifies
the g r o u n d s c o n s t i t u t e prison offences and section-72
prescribes the punishment provisions for the same. The Bill
a l s o s u g g e s t e d regulations for welfare of the women,
adolescent and life convicted prisoners53.
23 An analysis of the three aforesaid forthcoming prison laws
shows that, they could be very effective legal instruments i n
order to make our archaic prison laws up-to date as well as
according to the; expectations of the international human right
standard but, unfortunately even after years of drafting, the
Bills never even introduced i n Parliament for legislation.
Therefore, it is the high time that the Central Government should
immediately take action towacds this direction without any
further delay.
E. The Model Prison Manual - 1960 : A Survey
on
Implementation
24. As discussed earlier, the Model Prison Manual (MPM)
L.

49. The Prison Mangement Bill 1990, Ch. IV. P.4

50. ibid. Ch. IV, PP. 4-6
51. ibid. Ch. VI. PP. 8-9
52. ibid, Sec. 69(1) R. t6
53. ibid. Ch.XVI. P. 20
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 191

d r a f t e d by a Committee appointed i n 1957 upon the

recommendation of Dr. ~ e c k i e s s ,
which came into existence
on 1960. This draft model prison manual becomes a model for
different States and Union Territories of India for adopting their
new prison manual. The administration of prisons is a State
subject and hence, the MPM is not of handatory in nature.
However, most of the Indian States have fallen in the line with
recommendationss4.Some basic tenets of the Model Prison
,
Manual are being discussed in some details below.
25. The Model Prison Manual is consists of 6 parts and 54
chaptes. Part one deals with issues like : Headquarters
organiration and Prison infrastructure. Accordingly, the Prison
and Correctional services shall be under the control of the Home
Department. The organizational set-up of the ~ r i s o n
head-quarters shall be headed by a Inspector General (IG) and
the IG to be assisted by around twenty types of subordinate
officers including Deputy I.G., Prison Supe-rintendent,
Conrrectional Officers e t ~The~ ,
~ power and function of the I.G.,
and other subordinate officers ar specifically recognized i n the
MPMs. The Model Prison Manual recognized the importance
of the reasonable diversification of prison institution like,
s e p a ~ a t einstitution for delingquent children, adolescent
offenders, habitual, professional and organized criminals,
women offenders, Leprosy unit, TB unit, under trial prisoners,
Sub-jail and open institutions. I t has suggested the
establishment of central prison for inmates upto 750 specifically
for the offenders sentecned for terms o f imprisonment
exceeding two years. District prisons to be established for
offenders convicted under minor offences and the total
population inside the district prison shall not to be more than

54. Siddique Ahmad. Criminolo@y: Problems and Perspective.

Eastern Book Comp8ny,
Lucknow, 1997, P. 150
55. The Model Prison Manual, Ch. II, Sac. 1-2, P.9
56. ibid, Ch. II and VIII, PP Q & 3-7
40OS7.part Ill,of the MPM enumerates number of facilities for
the Prisoners. These are like: education, work, technical and
vocational training, cultural activities, leave and emergency
.
r e l e a s e , s a n i t a t i o n and hygiene, d i e t , a f t e r c a r e
and
rehabilitation. The MPM provides f o r physical, health,
academic, social, vocational, moral and cultural education of
a
inmates and suggested a detail course curriculum for the
same5$. In the other hand, it has strongly recommended that
the prison work and training programme should be
fundamentaliy
integrated with stafe and national economic policies and
suggestdd for payment of appropriate wages t o prison
w9rkersS9.Undr chapter XXVl the Manual has highlighted
that
the cultural and recreational opportunities should be extended
to inmates i n accordance with their.institutional behavior and
response to institutional regimes0.After care and
rehabilitation
under the MPM is aimed to help a released person to over
come
his mental, social and economic difficultiessi. Part IV - A of
the MPM classified the inmates on the basis of gender, age.
punishment, stage of criminal proceeding and nature of crime
etc. It helps for a better prison administration and
management.
26. An analysis of the baisc provisions of the M ~ M * s h o w s
 that it not only enunciate principles for an efficient
managment
of prisons but also lay down scientific guidelines for correctiye
treatment of various classes of offenders2. However, very few
could deny, the fact that the MPM is already half a centruy old
and the practice and experience shows that the it lacks broad
human right issues and judicial guidelines recognizing the
basic human rights for prisoners i n order to make them

57. ibid. Ch. Ill, Sec 1.2 & 3 PP. 13-14

58. ibid. Ch. XXIII. PP. 134-38
59. ibid, Ch. XXI , P. 138 and Sec. 16, P. 150
V
60. ibid, P. 159
61. ibid. C . XXXVlll. PP 270-75
h
62. Report of the All India Committee on Jail Reforms. C . I
& 1. P. 12
h 1 ,
VOI XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 193

correctional institutions rather the house of captives. But

whatever may be the case: the MPM has served as an effective
guideline for the development of state prison manual in different
states and Union Territories science its inception. The table
below identifies the various State Prison Manuals adopted on
the light of MPM 1960.

table -1
A list of State Prison Manuals
S. Name of the State Name of the Instrument
Year of
-
No. Inception

-
1.
2.
Karnataka
Kerala
Karnataka Prison Manual, Vol I & I1
Kerala Prison Manual
Keral Prison Rule
-3. Goa Prison Manual 1965
-4. Daman 8 Diu

-5. Tamil Nadu Tamil Nadu Prison Manual

1983
-
6. Andhra Pradesh
1
hdhra Pradesh Prisons Rules I
I

I
1977

7. Jammu & Kashmir Manual for the Superintendent

and 2000
Management of Jails in the state of
-
-8. Maharastra
Jammu & Kashmir
Maharastra Prison Manual 1979
9. Madhya Pradesh Madhya Pradesh Prisons Rules
1968

10. Bihar I Bihar Jail Manual 1990

11. Punjab I Manual for the Superintendent and
1996
I 1 Management of Prisons in the punjab(
12. 1 Delhi I Delhi Prison Manual 1 1999
196 CENTRAL INDIA LAW QUARTERLY
2001

The UN Standard Minimum Rules - 1955.

29 The UN standard Minimum Rules for the Treatment of
Prisoners was adopted on 30m Aughust 1955. I t consists of
five parts and ninety-five rules. Part one provides rules of
general applications. I t declares that there shall be no
discrimination on grounds of race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status. In the same time there is a strong
need of respecting the-religious belief and moral precepts of
the group to whicha prisoner belongw. The standard rules gives
due consideration to the separation of the different categories
of Prisoners. It says that the men and women shall be detained
in separate institutions. The under-trial prisoners shall be kept
in-separate from convicted prisoners. Further more, there must
be complete separation between the prisoners detained under
civil law and criminal offences. The UN standard Minimum Rule
also made it mandatory to provide separate residence for young
and child prisoners than form the adult prisoners i n the
Prisonss.
30. On the issue of prison offences and punishment, the
standard minimum rule provides clear rules. It states that, no
prisoner shall be punished unless he or she has been informed
of the offences alleged against him and given a proper
opportunity of presenting his defense. .
31. It has recommended that, the corporal punishment, by
placing in a dark cell and all cruel, in-human or degrading
punishment shall be completely prohibited a s a mode
punishment as disciplinary action in the Jail.
All such punishment including reduction in diet shall never
be inflicted unless the medical officer has examined the
,
64. The UN Standard Minimum Rubs for Treatment of
Prisoners - 1955. Rule 6(i)
65. -
ibid. Par - ll and Rule 8
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA, 197

prisoners and certified in writing that the prisoner is fit to

*sustain itse. q

32. The ,UN Rule has given special attention to under trial
prisoners and rules has been provided for their special
treatment. It has recognized that un-convicted prisoners shall
be presumend to be innocent and shall be treated as such. A
number of rights like: right to separate detention, right to have
own food and own clothing, right to have opportunity for work,
right to procure books, news papers and writing materials and
other means of occupation at his own expenses and right to
get free legal aid, are recognized b y the UN Rules7.
33. While recognixing the basic principles of punxing the ba
ic principles of pun the purpose of punishment is not to torture
a person but to reform him and ultimately making him a good
citizen. To achieve this objective, Rule, 79-81 of the Standard
Minimum Rule provides for social relations and after care

provisions. I t says that, from the beginning of a prisoners

sentence consideration shall be given to his future after release
and he shall be encouraged and assisted to maintain or
, establish relations with person outside the institution as may
promote the belt interacts of his family and his own social
rehabilitati~n~~.
Training qf Prison Personnel
34. The UN recognizes the fact that, proper selection and
 training of prison personnel is a pre-condition for proper
implementation of prison laws and to ensure the minimum
human right norms to the prisoners. Hence, the UNs Congress
on the Prevention of Crime and the Treatment of Offenders
have
adopted another resolution on 1st September, 1955 regarding

66. -
IbM, Rub 27 6 28
67. -
ibI4 Rule 84 to 93
68, idib. Rule 60 and 79-81
198 CENTRAL INDIA LAW QUARTERLY

Selection and Training of Personnel for Penal and Correctional

Institutions. The Resolution prescribed a comprehensive
mechanism for selection of right man for right job i n prisons
and their proper trainings9.In the other hand, the UN Resolution
on 29 August 1955 on Open Prison and Correctional Instituion
provides rules and guidelines for the establishment, and
administration of open priosns and correctional institutions. The
Resolution considers that the open institution marks an
important step in the development 0, modern prison system and
represents one of the most successful applications of the
principles of the individualization of penalties with a view-to
social adjustment70.
Other International Initiatives
35. Among the other international initiatives -on the subject
the United Nations General Assembly Resolution on Body of
Principles for the Protection of All Persnns under Any Form of
Detention or Imprisonment -
1997 i s a comprehensive
documents., It suggests various guidelines regarding treatment
of e,very type of person detained by the government authorities
including the police, investigating agencies, prison officers and
the judical bodies.
36. B e s i d e s t h e above, t h e r e has been a n u m b e r o f
international law instruments those indirectly provides rules and
recommendatidns for ensuring the human right,for every human
being including the prison population at the international level.
The International Covenant on Social, Economic and Cultural
Rights - 1966 recognizing of the inherent dignity and the equal
69. The UN Congress on the Prevention of Crime and the
Treatment of Offehders.
Resolution on Selaction and Training of Personnel and
Correction Institutions. Sept. 1.
 1955. The resolution consist of 24 articles. dealing with
variety of Issues regulating
prison management.
70. The UNs Congress on the Prevention of Crime and the
Treatment OF Offenders on
Open Prison and Correctional Institution of 29th Aughust
1955 consists of S articles
recommending various guidelines for the establlshment of
open prison and correctional
institution while highlighting the objectives of such
institutions.
VOI XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 199

and inaliehable rights of all members of the human family as

the foundation of freedom, justice and peace in the world71.
The Covenant consist of 31 Articles, is a broad based document
highlighting the basic fundamental rights of human being. The
basic slogan of the Covenant is that, in every circumstance
the fundamental rights of the human being should not be
. violated. On the other hand, the International Covenant on Civil
and political Rights - 1966, under article - 6, recognizes that,
every human being has the inherent right to life to be protected
by law. No one shall be arbitrarily deprived of his life.%The
Covenant strongly recommended the abolition of death penalty
and recognized the right of prisoners to seek pardon, special
right of juvenile prisoners and pregnant women72.Further
more,
the Covenant make the State parties obliged to ensure that,,
no one shall be subjected to torture, cruel, in humane or
degrading treatment or punishmentt3. A variety of rights of the
- under trailed prisoners are also identified by the Covenant7*.
I n the same time other international legal instruments like :
the Univerrsal Declaration of Human Right 1948 and the
-
 Convention Against Torture (CAT) - 1976, while recalling all
previous developments on the subject provides a better frame .
work for maintaining the human right norms for everybody. In
this backdrop, i t would to worth noting that, although the
international law regime for prison reform are very important
but its implementation is totally depends on the mercy of State
parties. Until and unless the Sovereign States did not ratified
and implemented the same at the domestic level, the aforesaid
international legal instruments has no legal value. It can be
concluded that, the International Law on the subject consists

71. T C Preamble, international Covenant on Economic. Social

and Cultural RiQhts 1966. -
72. -
Part Ill. Article 6 of the International Covenant on Civil and
Political Rights - 1866
73. Ibld. Articb -7
74. See Articie - 14 of the International Covenant on Civil and
Political Rights - 1966
200 CENTRAL INDIA LAW QUARTERLY
200 1

of certain principles of criminal justice incorporated in the form

of rules those are soft law in nature. But, as these lacks an
effective implementation mechanism, these rules to be
considered by the national courts as merely guideline for the
interpretation and l e g i ~ l a t i o at~ ~ domestic level.
n the
G. T h e Existing Trend i n lndia : Humanization of
Criminal Justice
37. The existing judicial and administrative trend in lndia on
prison reform is based on the fundamental prinicples of the
Indian Constitution and Judical decisions by Supreme Court of
lndia and different High Courts. Though, the Constitution does
not provides any specific provisions regulating right of prisoners
or prison reform but certain Fundamental Rights generally
applicable and even recognized by the Court of Law for
protecting prisoners right. These are like : Article, 14-Right to
Equality, Article, 19-Right to Freedom of Speech, Articl.e, 21 -
Right to Life and Personnel Liberty and Article, 22- Protection
against Arrest and Detention in certain
38. Using the newly established doctrine that one can be
deprived of his personal liberty only through a procedure which
is fair, just and reasonable, the Judiciary has been taking steps
for liberalizing the administration of criminal justice77. In a
series of land-mark judgements the apex court have, while
laying down the constitutional dimensions and rights available
-
to prisoners and the approach to be adopted in dealjng with

j5. Naresh Kumar, Constitutional Right of Prisoners. MiHal

Publications, Delhi (1986). P. .
17 .
76. PM Bakshi; The constitution of india. Universal Law
Publishing Pvt. Ltd., Deihi (1097),
PP, 11-68.
77. An immediate beneflclal impact of Menka Gandhis Case
(AIR 1978 S.C.) has been felt
in Prison Administration also as cited in Verma S. K. and
Kusum, Fifty years of the
Supreme Court of india : Its grasp and reach Oxford
University Press. new Delhi, 2000,
Ch. I.MP, Jain, The Supreme Court and Fundamental Rights,
P 26 .
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 201

various aspects of custodial justice and administration, invoked

article 21 to protect and shield prisoners from prison vices78.
On the basis of issues in relation to prison, those identified in
the judicial decisions, some important cases of the Supreme
Courts and High Courts are being discussed in some detail
below.
A. Prisoners Rights

39. The growing awareness about the right of prisoners among

the prisoners themselves and the others those engaged i n the
movement of civil liberty has marked the prison administration
i n tndia during last 30 years. I n MH Hoskot V State of
Maharastrat7O and Frances V Union Territory of Delhisothe
right
of access to law and legal facility has recognized by the
Supreme Court of lndia. The Court also directed the government
to assign a competent council for.the prisoners defense,
appeal and recessions1at the cost of the State. In Frances
Coralie V Union Territory of DelhiIa2the court has recognized
the detenus right to meet with friends and relatives under
the scope of Article 14 and 21 of the Constitutions3.
40. T h e right to freedom of speech and expression i s
indis,pensable for the development and protection of the creative
faculties of human beings. In A. K. Goijaln Vs. State of
MaharastraTE4, Prabhakar Pandunga V State of M a h a r a ~ t r
a ~

The Prisons Administration and Treatment of Prisoners Bill,

1998, Ch. I P.2
,
(1978) 3, Supreme CourtCases (SCC) P. 544
(1981) 1, SCC, P. 608
 -
Also see Khatri V State of Bihar AIR 1984, (SC). Ranjan
Dwivedi V Union of lndia AIR.
1983 (SC)
AIR 1981. SC. P. 753
The Court observed that of course, the magnitude and content
of this right would
depend upon the extent of the economic development of the
state. But the limitation
should not be such, that H will lower the human dignity.
AIR, 1950, SC. P. 27
AIR. 1966. SC, P. 424
202 CENTRAL INDIA LAW QUARTERLY
2001

and Prabha Dutt V Union of Indiaga6 court has recognizing

the ,
this right i n favour of prisoners under the scope of the Article
14 and 19 of the Constitution of India. Hence forward, the
inmates get an exclusive right to read, write, publish books,
articles and journal and to give interviews to journalists and
legal advisors, etc.
41 In Rudal Sah V State of BihartE7 Supreme Court while
the
broadening the doctrine of Act of State (the defense available
i n favour of the State not to pay compensation to victims due
to State action) recognized the right o f compensation t o
prisoners against arbitrary arrest and detention. In the present
case damage i n the way of compensation was awarded to a
victim for wrongful imprisonment.
~ e c e n Developments
t
42. An analysis of some of the landmark judgements of the
honourable Supreme Court of lndia and different High Courts
regarding Prison reform since the early 1990s shows that, the
court of law in lndia has been recognizing a broad range of rights
of the prisoners i n the light of recent human right initiatives.
.Some of the important rights of the prisoners are like : right to
fair treatment and dignity, right to equality, right to basic
human
needs, and right to the principles of nature justice, etc.
43. I n t h e cases o f Amir Shad Khan V.L. Hmingtiana,
Citizens for Democracy V State of Assam, Kewal Pati V State
of UP, Murti Devi V State of Delhi, and R.D. Upadhyaya V
State of Andhara P r a d e ~ h the ,Supreme Court of lndia
identi-
~~
fied the right to judicial remedy for prisoners. The court
observed

86 SCC, 1982. P. 1
87. AIR 1983 SC. 1096
88. (1991) 4 SCC 39,(1955) 2 SCC 743(1955) 3 SCC 800, (19Q8)
9 SCC 604, (2001) I , Sac
I
437.
VOI XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 203

that, the authorities are required to act according to the law

but the law has been unfortunately respected i n its breach. It
said that, the history of liberty is the history of procedural safe
guards and hold that, the right to judicial remedy flows from
the constitutional guarantee enshrined in Article 14, 20, 21 and
22 of the Constitution.
44. I n the other hand, the Supreme Court has reiterated its
voice against unneccessary restriction on the Prisoners right
to personnel liberty. I n the cases of Citizens Democracy V
State of Assam, and State of A.P.V. Challa Rama Krishna
ReddytsS, the court held that the power of the police and prison
authority to ensure discipline in the custody and to check
the anticipated escape, an inmate is subject to fundamental
rights and Judicial guidelines.
46. Right to fair treatment, dignity and equality has been
recognizedby the Supreme Court and various High Courts.
Accordingly, i t is observed that the right to dignity and fair
treatment under Article 21 of the constituion of India is not
only available to a living man but also his body after his deathg0.
In the same time the court said that, the prison facility like
remission and parole should be exercised on the basis of
doctrine of equality by the state. If not, then the High Court
can quash the unequal facility granted by the State in favour of
any group or individualg1.
The Prisoners right to basic human needs has recognized
by the Kerala High Court in the case of A Convict Prisoner in
.the Central Prison V State of KeraIalg2in which the court issued

89. (1995) 3 SCC 743. AIR 2000 SC 2083 and also see High
Court decisions like ~ a l l a
Pareddy Prajanna V State of AP, 1994 Cr. LJ 2016, and P.D.
Gajbbide Vs State of
 maharastra 1994 Cr W 2555.
90. Paramananda Kartar V Union of India. (1995) 3 SCC 248
91. State of MP V Mohan Singh. (1995) 6 SCC 321.
204 CENTRAL INDIA LAW QUARTERLY
200 1

direction to the State to build sufficient number of prisons for

proper accommodation to effectively implement segregation,
to
appoint proper prison staff; payment of wages to the prison
labour; free legal aid, to rationalizing parole and remission
policy; and to broaden the s w p e of educational and recrea-
tional facilites.in the Jail.
47. Administration of prison instjtutions and maintenance of
discipline i n jails i s subject to the Principle of Natural Justice.
The prison authorities should take action and issue order only
with the due compliance of the principles of Natural JusticeQ3.
Time and again, the Indian Judiciary has recognized the
natural
rights of prisoners as inalienable right and compelled the
government authority to act and practice accordingly.
6. Speedy Trial
48. The long pre-trial incarceration of an accused person in
lndia isa dangerous aspect of our criminal justice system. In
this context, the Supreme Court of lndia i n the case of Sunil
Batra Vs. Union of IndiaQ4 and Hussainara Vs State of
BihaP5
o b s e r v e that the speed trial is an integral and essential part
o the fundamental right to life and liberty under Artcle.21 of
f
the Constitution. These cases has resulted i n law taking on a
new identify as an instrument of justice responding to the
needs
of the society as steps towards lowering of the barriers between

the common man and courtQ6.According to the court, it is a

 crying shame upbn our adjudicatory system which keeps men
i n jail for years on end without a trialQ7. While laid down
liberal
rules for bail and bond it insisted that, a developed
jurisprudence
93. Keemat Singh V I.G. Prison. Chandigarh, 1994, Cr. LJ
1884. Ramaswamy V The govt. of
A.P., 1997 Cr W 3256 and Sarjerao Pole V State of
Maharastra, I999 Cr LJ 1433.
94. Case I. AIR, 1979, SC, P. 1979, Case 1 , AIR, 1980, SC, P.
1585
1
95. AIR. 1979. SC P. 1360
96. Ranl Dhavan Shankardass. punishment and the Prison:
Indian and International Per-
spectives, Saga Publication, New Delhi (2000). ch. 9
Pushpa Kapila Hingorani, The
problem of Under trial: Hussainara Khatton and Public
interest litigation, P. 197
97, Kadra Pahadiya V State of Bihar, AIR. 1882. SCP. 1167
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 205

of bail is integral to a socially sensitized judicial processga.

49. I n brief, i t can be concluded that, t h e c o u r t has
.
recognized that separate cadre of investigation agency enjoined
with the reponsibility of production of witness, production of
accused and assisting the prosecuting agency will facilitate
speedy trial. The lack of coordination between the investigating
and the prosecuting agencies should be rectified. In cases of
offences c,ommendable by the agreement of the parties, the
proceedings may be terminated by recording the compromise,
and the accused be releasedsg.
C. Solitary Confinement, Bar fetters a n d Handcuffing
50. There is no denying to the fact that maintenance of
security and discipline in prison is an important ingredient of
the smooth functioning of prison administration. Hence, the
-
Prison Act 1894 and the Model Prison M-anual has prescribed
.
specific provisions about the scope and power of the prison
officers for the purpose. On the other hand, some of themode:
of preserving discipline like : solitary confinement, bar fetters
and hand cuffing etc., has provoked much debateto0i n the
background of the growing allegation of human right violation.
, In Sunil Batra V D e M Administrationlol the Supreme Court of
lndia laid down a detail guideline regarding the practice of
solitary confinement i n Indian Jails. Terming s o l i t a r y
confinement of extremely cruel, and dehumanizing the cqurt
said that, there is no reason t 4 permit the same punishment
to be smuggled intothe prison system except in extreme case

98. Babu Singh V Uttar Pradesh, AIR 1978: SC: P. 527-520 _

 99. H. Syed Mathani, The right to speedy trial. The Hindu.
New Delhl. 24 April, 2001.
-
100. Section 73. 74 of IPC and Section 30. 46 of Prisons Act
1804 recognizes solitary
confinement. But the Law Commission of lndia in its 42
Report favoring the abolition
a of the same.
.101. SCC (1978) P. 494, also see Kishor Singh V State af
Rajasthan. AIR 1981 (SC). P. 825
206 CENTRAL INDIA LAW QUARTERLY
200 1

of necessity. In the same time, in the case of Charles Sobhraj

V Supdt., Central Jail and Prem Shankar Shukla V Delhi
Administrationlo2 the court hag restricted the use of handcuffing
and fetters for the safe custody of prxioners in jail. The court
observed
that, the treatment of human beings which offends human
dignity, imposes avoidable torture and reduces man to the level
of animal would certainly be arbitrary. Hence, section36 re-
garding use of fetters, of Prisons Act-1894 is unjustified. On
the issue of hand cuffing the court described the practice as
inhuman and over harsh, to be employed only in exceptional
circumstances and accordance with the judicial guidelineslo3.
D. Torture
51. The apex court in number of cases iaises concern against
police torture, and brutality on prisoners, under trials and
accused personslo4.In Kishore Singh V State of Rajasthan
the Supreme Court has held that, the third degree method
being used by the police in custody or prison is violative of
Article 21 of the C o n s t i t ~ t i o nCustodial death and violence
~~~.
is one of the worst crime in a civilized society governed by
rule of law. In D. K. Basu V State of West Bengal the Supreme
Court has observed that the power of the executive should not
only be derived from law but also the same should b e limited
by law106. While recognizing the fact that arrest can cause
irreparable injury to an individuals reputation and self-respect,
the court of law observed that arrest should not be made merely
on suspicion but after attain reasonable satisfaction about the
genuinenes of the complaint107. The supreme Court
recognizing

102. SCC. 1978. 104. Criminal Law Journal (1980). P. 930

103. Also see Sunil Batra AIR (1978) and Khatri V State of Bihar.
AIR 1981 (SC) 1675
104. Raghubir Smgh V State of Haryana, AIR 1980 SC 1087 8
1088. Kartar S~ngh Stale of
V
Punjab, 1994 SCC 56, Nilabati Behera V State of Orissa AIR.
1993 SC. 1960
105. AIR 1981, SC 625
106. AIR 1997, SC. 610
107. Joginder Kurnar V State of U P AIR 1994, SC 1349
.s
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR I N D M 207

the principle that a person do not become non-person after

= c o n v i c t i o n and s e n t e n c e d t o j a i l . Hence, e v e n a f
ter
imprisonment he is still entitled for Fundamental Rights in
order
to maintain his dignityto8.
52. The issues of delayed execution and cruel punishment
has repeatedly raised in various courts. I n Sher Singh V State
of Punjab log, Supreme Court agreed with the view that i n
the
case of proolonged detention on the ground of delay i n
execution of death sentence i s a ground to invoke Article 21.
I n Bachan Singh V State of Punjabllo the court observed that
the inhuman and cruel punishment infringes the fundamental
human rights guaranteed under part Ill of the Constittuon.
.Hence, cruel punishment ought not to be imposed except the
gravest of cases subject to judicial scrutinylll. The court has
recognized the right to fair treatment and dignity of the
prisoners
as a tool against the alleged acts of torture by police and jail
.
authority. I n the cases like: State of Maharastra V. Revikemt
 and R.D. Upadhya V State of Andhara Pradeshll* the Supreme
Court hasheld that every prisoners are entitled for the right to
fair treatment under the scope of Article 14,20,21 of the
Constitution.
E. Prison Labour and Wages
53. Prison labour i n India always viewed as a mode of
punishment. In the same time, there are movements i n order
t o eliminate free labour rendered by prisoners. The Indian
Judiciary promptly reacted towards eliminating free labour

T.V. Vathees Waran V State of T. N., AIR 1983, SC, 361.

Prem Shankar V. Delhi
Administration, AIR 1980, sc 1535
AIR 1983. SC 465
AIR 1980. SC 898
Also see Trivenal Ben V State of Gujrat, AIR 1989. SC 142.
Francis Coralie V Union
Territory of Delhi. AIR 1981. SC 746
1991, 6 SCC 321 AND 2001, 1 SCC 437
208 CENTRAL INDIA LAW QUARTERLY
2001
f

V
practices in jails. In the case of Mohammad ~ i a s i d d i n State
of Andhra Pradesh13 and Dharambir V State of U.P.l14, the
Supreme Court of lndia held that the prisoners are entitled to
fair wages for the work done by them. The court of law analyzed
the scope of section 53 of the Indian Penal Code and said that
section talks about hard labout* but not free labour for the
rigorous imprisonment115 Recently, in the case of state of
Gujarat V High Court of Gujarat1.16, the Supreme Court of lndia
while recognizing the fact that the jail authorities are enjoying
by law to impose hard labour on prisoners who have been
sentenced tp rigorous imprisonment. It also directed all the
State Governments to take a policy decision on the matter
without any further delay and recommended that, until such
decision, every prisoner must be paid wages for the work done
at the rater or revised rates at the government concern fixes.
54. The problem of human rights of persons in custody is
the main theme of prison reforms in the country today. In this
background, it can be concluded that, the current trend on
prison reform in lndia is guided by the following considerations:
+ There are certain rights and freedoms those are
f u n d a m e n t a l to h u m a ~ x i s t e n c e . They a r e n o t
e
privileges, nor gifts given at the whim of a ruler or a
government. Neither they can be taken away by any
arbitrary power. They can not be derfied, nor can they
be forfeited because an individual has committed any
offenceor broken any law.
+ Human right initiatives and obligations under the
constitution of lndia as well as international conventions
 are now an important feature of the day to day conduct

113. 1977, SCC 287

114. 1979, 3 SCC 645
115. Prison Reforms Enhancement of Wages of Prisoner. AIR
1983 Kerala 261
116. 1998, 7, SCC 392
Vol XIV FORMULATING A PRAGMATIC PRISON POLICY
FOR INDIA 209

of the government in order to promote and to protect a

wide variety of human rights.
Prisons are no more considered as a House of Captives
but they are correctional institutions. Prison regimehelp
the prisoners to lead law abiding, self-supposing, reform
and socially rehabilitated life.
A p e r s o n c o m i n g t o p r i s o n does not become a
non-person.
Prisoners have all constitutional rights except those
-
limited due to their imprisonment.
Human rights are a basic element of correctional justice
based on assumptions that hate-the crime, not the
criminal.
A prisoner should have human rights i n order to learn
and respect the human rights of others after release.
Debarring a prisoners from human rights would pose a
direct threat to our own humanity and civilization.
Prisoner is sent to prison as a punishment, but not for
the p ~ n i s h f n e n t . ~
Conclusion
Programmes for reformation and rehabilitation of
offenders, for making them useful citizens, must find a place
in our national plansIi8. In this context, there i s no denying to
the fact that an effective and adequate prison reform policy i n
the light of fast developing and widely recognized principles of
human rights i s one of t h e most unfailing tests of the
117. Data collected from the Bureau of Police Research &
Development. Ministry of Home
Affairs, Govt. of India, New Delhi.
118. Dr. Hira Slngh, Prison Administtation in India.
Contemporary Issue PP. 112-122 as
 cited in the book Punishment & the Prison; Indian and
International Perspective, edited
by Rani Dhavan Shankerdev. Saga Publications. New Delhi.
2000.
210 CENTRAL INDIA LAW QUARTERLY
2001

civilization of every country. However, even after 50 years of

independence the conditions of prison and prisoners i n lndia
appear not to have improved wuch. There is large network of
criminals, officials, and non-officialsin the prison: the house
of correction and drug racket, alcoholism, smuggling, violence,
theft, un-constitutional punishment by way of solitary cellular
life and transfer i n other jails are not u n - c o m m ~ n l The. law
~~
has an important role to play towards achieving the noble goal
of maintaining the human right standard in Indian Jail. The role
of judiciary, legislature, press and most importantly the
participation of people cannot be sidelined for formulating a
comprehensive prison management policy at the national level.
The government have to promptly make endeavor for the
Formulation of New Model Prison Manual by replacing the
archaic model prison manual of 1969. The proposed Model
P r i s o n M a n u a l s h o u l d b e s t r o n g l y on t h e l i n e o f t
he
recommendation of the All lndia Jail Reform Committee. The
standard minimum rules for treatment of Prisoners of the United
Nations could b e an important tool towards this direction. The
changed jurisprudential towards prison system i s
based on therapeutic approach rather deterrent theory of
punishment. T h i s should be adequately r e f l e c t e d i n the
proposed legislature on prison reform. To achieve this end, the
state have to undertake legislative reform as a first step towards
achievirig the goal. The Directive Principles of State policy on
prisons should be formulated and be embodied i n Part IV of
the C o n s t i t u t i ~ n ~ ~ ~ .
56. The suject of prisons and allied institutions should be
included in the Concurrent list of the Seventh schedule of the
constitution of India121. All the Acts pertaining t o -prison
119. Justice Krishna lyer in Sunil Batra V. Delhi Administration
All lndia Reporter. 1980.
Supreme Court. P. 1586.
120. Chapter XXIX. Summary of Recommendations Report of
the All lndia Jail Reform
Committee, 1980-83. PP 365-66.
121. ibid
VOl XIV FORMULATING A PRPGMATfC PRISON POLICY
FOR INDIA 2 i

administration should be complied and a new uniform and

comprehensive legislation should be enacted by the government
of lndia for the entire country. The government of lndia should
prepare a Model Bill to be adopted by all the States and Union
Territories for this purpose722. The State governments
and Union
Territories should take prompt action to frame rules under the
prison statute. The domestic laws iike: Young offenders Act,
Borstal School Act, Pxobaticn of Offenders Act, Children A c t
Habitual Offenders Act, Juvenile Justice ActTz3 and the lndra;:
etc
Penal Code andcrime Procedure code should be amended ,n
the light of the provisions of the new Model prison manual arid
All lndia Jail Reform Committee Report. The article hopes that
by implementing all the aforesaid suggestions, lndia could be
a model state for most of the Afro-Asia developing countries in
the field of prison reform in the new millennium. lndian prison
could be the center for correction by providing mental. mbtal
and vocational training, so that the offenders can rehabr!rtate
themselves after their release from prisons and to enjoy !heir
normal life as a sensible citizen of this great country. The study
i d e n t i f i e d c e r t i a n p r i o r i t y areas for p r i s o n r e f o r
n s as
enumerated below:
4- Need to provide adequate exposure to prison staff both
at the national and international levels.
+ Finding the best prison practices and implementing the
same in the lndian-context.
4- Proper recognition to Indian prison service and cadre1
career planning for prison officer at the nattonal level.
+ Development of correctional training in order to have