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08 - Chapter 2 PDF
08 - Chapter 2 PDF
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23
CHAPTER II
Ancient India
accordance with the Smriti. Many crimes and wrongs were sins and
ancient criminal law in India was very severe and drastic, but that from
the time of Yajnavalakya, Narada and Brhaspati, the rigour of punishment
was lessened and softened and fines came to be the ordinary punishments
of the motive and nature of the offence, the time and place, the strength,
age, conduct (or duties), learning and monetary position of the offender
and by the fact whether the offence is repeated. This provision means
that the Dharma Sastras did not hold that the same punishment must be
mutilation and death, the imprisonment was the most mild kind of penalty
an ordinary place among the penal treatment and this type of corporal
put into prison to segregate him from the society. The main aim of
imprisonment was to keep away the wrong-doer, so that they might not
ancient period and that spies were used for the functions of the modern
police. It is learnt from the books, The History of Dharma Sastra by PV.
punishments during the period were meted out, outside prison which
made it impossible for the development of an well-organised prison system.
The evil-doer was put into prison to segregate him from the society.
Though jail or prison in the modern sense of the term was not in vogue
of prisoners even in those days. Again there was provision for the
of the festival of the birth constellation of the king and full moon day (of
every month) such persons as are young, very old, suffering from disease
and helpless or those who are charitably disposed may pay fines or
others bind themselves by an agreement to pay in cash the fines for the
offences for which the persons are jailed may be set free on their working
doer to start afresh a new civil and peaceful life. In the modern system
of today also we find the system of state remission of prisoners.
Kautilya has further described the duties of the jailor who always
keeps eyes on the movement of the prisoners, and the proper functioning
of the prison authorities. If a prisoner by chance moves out of his cell,
he is fined twenty four rupees and the warder who is in league with the
prisoner is fined the double amount. In case the warder disturbs the
prison life, the higher authority imposes a fine of five hundred rupees.
Sometimes the prisoner is put to death by the warders. So the penalty
in this case is the highest, i.e., one thousand rupees. Kautilya has gone
deep to jail life and opines that the prisoner escaping after breaking the
prison walls must be put to death. This shows that the jail authority
called Bandhanagaradhyaksa was always vigilant and alert and no evil-
action could escape his eyes.9
12. Corpus-I, Vol.II, p.123 and El, Vol.H, pp.253-254, quoted in R.N. Datir, op.cit., p.43.
13. Ibid.
14. Sukla Das, Crime and Punishment in Ancient India, Abhinav, New Delhi, 1977, p.74.
15. Indra J. Singh, Indian Prison: A Sociological Enquiry, Concept, Delhi, 1979, p.20.
4
29
prison system in the modern sense of the term and imprisonment was
that; (1) there were no prisons in the modern sense, (2) there is no
description about the types of prisoners sent to prison, and their relation
Medieval India
During the Mughal period, sources of law and its character essentially
maturity outside India. It was supposed to have been defined once for
all within the page of the Quran.17 The system divided crime into three
groups, namely; (a) offence against God, (b) offence against the State,
and (c) offence against private persons. The punishments for these
i) Hadd
ii) Tazir
iii) Quisas, and
iv) Tashir
During Muslim period the object of reformation was also taken into
consideration to some extent in a few cases.
Islamic law applied to Muslims in all civil cases. Criminal law was
the same both for the Hindus and Muslims (possibly in the capitals and
big cities only). Similarly, the Muslim law of Evidence and Contract
17. Jadunath Sarkar, Mughal Administration, M.C. Sarkar & Sons Ltd., Calcutta, 1935,
p.114.
18. J.N. Sarkar, op.cit., pp.116-124.
31
tact. Hence, no effort was made by Mughals to disturb the corporate life
of the villages or encroach upon their ancient institutions.19
» /
The Gwallior Fort was reserved for 'nobles that offend1. To Rohtas
were sent those nobles who were condemned to perpetual imprisonment,
from where Very few return home' Princes of royal blood were often sent
to this place.21
When the prisoners were taken to prison, they were usually loaded
with iron fetters on their feet and shackles in their necks. However,
there were no jails in the modern sense then but there was provision for
temporary confinement of culprits in the police lock-ups in the cities
Not only this type of arrangements were made during the Peswa
period but also there was provision for relaxing offenders on health
ground. An offender was to be transferred to another place if the climate
of his present place did not suit his health. Today too we find some such
privileges for the prisoners.
watched and their communication with outside world and even with
their own relatives was prohibited. They were supplied with all sorts of
comforts and were given first class food.24
and courts also were not the feeding centres for prison. Imprisonment,
were mostly meted out, outside the prison. In the pre-modern prisons,
British India
the East India Company to rule India and before that "The Regulating
Act" was passed in 1773 which established the Supreme Court at Calcutta
the Criminal Courts were directed to inflict imprisonment with hard labour
in its stead.26
When the East India Company was to hand over the administration,
there were 143 civil jails, 75 criminal jails, and 68 mixed jails in India
25. Regulating Act, 1773, Section 13, R.N. Datir, op.cit., p.55.
26. The Imperial Gazetter of India. The Indian Empire, Vol.lV-Administrative, p.398,
quoted in R.N. Datir, op.cit., p.55.
35
which were nothing but an extension of the Mughal Rule. The difference
is that these jails were managed by the personnel of the East India
Company.
In the year 1833, the attention of the British Parliament was drawn
/
rampant among the inmates, death rate inside the prison was very high
and in 1860, the death rate of inmates was recorded as 141 per thousand.
27. Herbert Cowell, History and Constitution of the Courts and Legislastive Authorities
in India, Calcutta, 1936, p.74.
28. Kum Kum Chadha, The Indian Jail, Vikas, New Delhi, 1983, p.150.
29. Indra J. Singh, op.cit., p.23.
36
adopted for classifying juveniles from adults and casuals from habituals.
of rewards for good conduct and suggested the building of central prisons
work.30
Central Jails were constructed. Naini Central Jail came into existence
later followed by Lucknow Central Jail (now model prison) and the last
one the Fategarh Central Jail. Previously, the jails were under the control
their provinces. Similarly, in the year 1862, in the district jails, the
30. A.P. Howell, Under Secretary to Government of India - 1867-68, Note on Jails
and Jail Discipline in India, 1867, p.44.
37
North-Western Province.
1864 and appointed the second prison commission to minimise the high
The committee found that in the preceding ten years no less than
that the sickness and mortality might be mainly due to; (a) over crowding,
(b) bad ventilation, (c) bad conservancy, (d) bad drainage, (e) insufficient
(h) bad water, (i) extraction of labour from unfit prisoners, (j) insufficient
medical inspection.32
officers which held its conference at Calcutta. The fourth jail committee
for classifying prisoners into casuals and habituals. The jail manuals of
this committee.
down further detailed rules. The Prison Act of 1894 was mainly the
outcome of the efforts of this committee. The Act restricted and regulated
the use of whipping, cellular confinement and penal diet. It provided for
prior legislation on the subject and directing the courts to send a "Youthful
effect which humanising and civilising influences had on the mind of the
33. G R.Madan, Indian Social Problems, Vol.l, Allied, New Delhi, 1981, p.128.
34. C.S. Malliah, "Development of Prison Administration in India," Social Defence,
Vol.XVIl, No.67, Ministry of Social Welfare, Government of India, New Delhi,
January 1982, p.35.
39
the year 1920. This committee went into the question in depth and
examined the prevailing conditions in the prisons not only in India but
"The Committee for the first time suggested two conceptual pivots -
administration in India."35
Andaman Islands and recommended for its discontinuation and also the
different states were Punjab Jail Reforms Committee (1919 and 1948),
Uttar Pradesh Jail Committee (1929, 1938, 1946), Bombay (1939, 1946),
Modern India
U.N. to send an expert for imparting a training course to the selected jail
officers and to suggest progressive programmes for the scientific care and
36. Vidya Bhusan, Prison Administration in India, S. Chand, Delhi, 1970, p.22.
37. A. Mohanty & N. Hazary in Indian Prison System, Ashis, New Delhi, 1990, p.27.
41
Manual Committee in the year 1957, which submitted its report in 1959.
and studies and surveys in the field of prevention of crime and treatment
of offences.40
Also, "In 1955, the United Nations declared the Standard Minimum
Rules for treatment of prisoners. In 1957-59, the All India Jail Manual
Committee was set up. In 1972-73 the working group on prisons came
The working group felt that the prison system in India could be
streamlined only if the governments both in the Centre and States made
available more resource for the development of every aspect of the existing
system. Therefore, it recommended for the inclusion of prisons in the
Five Year Plan and a provision of Rs.100 crores.
modernization of jail system in the year 1977-78 and Rs.4 crores in the
budget of 1978-79.
new courts and amendment of the law relating to the transfer of prisoners.
Manual.43
Again the Planning Commission in the Sixth Five Year Plan allotted
some funds for construction of jail buildings and staff quarters as part on
the "Housing Urban Development and Water Supply" sector of the Plan.
During this period, some incidents like, escape of inmates from Tihar
Jail, Delhi, prisoners' blinding case in Bhagalpur Jail and other jails in
and U.P. made the Government of India appoint a Jail Reform Committee
in 1980. Retired Justice A.N. Mulla was its Chairman. The Committee
submitted its first report on Central Jail Tihar, Delhi in December 1980
India.
After the report was published, both the Central and State
the retired Justice of Supreme Court, V.K. Krishna Ayer. This Committee
45. Report of the All India Committee on Jail Reforms 1980-83 (Chairman A.N.
Mulla), Vol.ll, Government of India Press, Minto Road, New Delhi, p.365.
46
for one fourth of women and that the remaining continue to be housed
in separate wings/wards/sections of male prisons.
parts of India and said "one broad perception is that separate prisons
47
Also the Committee was not satisfied with the building provision for
the Prison Act, the model prison manual and the recommendation of
day care in a custody have invited the concern of practically all jail
concerned reform deliberations." While recommending for better sleeping
provisions the Committee also suggested for better quality of food and
clothing for the women prisoners after visiting women prisons. On the
medical facilities for women inside jails all "members are unanimous on
tours, particularly in the southern States, it was felt that female inmates
46. Report of National Expert Committee on Women Prisoners, (Chairman V.K.
Krishna Ayer), Government of India, New Delhi 1987, pp.124-125.
47. Ibid., p.126.
48. Ibid., p.126.
48
Committee feels that the detention, treatment and control of STD should
new rules and regulations relating to their punishments and conduct, (c)
for providing due justice to women prisoners, (d) Provision for legal-aid
for them, (e) Construction of separate prisons for women prisoners, (f)
Proper care of the baby born in jail to a woman prisoner and provision