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Draft Policy on Prison Reforms

The draft national policy on prison reform and correctional administration (prepared by a committee that had only police officers as members) makes a few prisoner-friendly recommendations, but it is silent on important aspects like the need to improve the legal aid system, ensure prompt release of those who have been acquitted or discharged and care for the health of prisoners.

COMMENTARYEconomic & Political Weekly EPW june 28, 200829Draft Policy on Prison ReformsVijay HiremathThe draft national policy on prison reform and correctional administration (prepared by a committee that had only police officers as members) makes a few prisoner-friendly recommendations, but it is silent on important aspects like the need to improve the legal aid system, ensure prompt release of those who have been acquitted or discharged and care for the health of prisoners.In December 2005, the government of India constituted a committee under the chairmanship of the director general, Bureau of Police Research and Development (BPRD) to prepare a draft policy paper on the strategy relating to prison reforms and correctional administration. Though the recommendations of the various earlier committees on prisons have not been im-plemented in toto, it was a welcome move. The government had decided to consider the plight of the people behind prison bars: the most neglected section of our society. This also leads to speculation on whether the government is planning to bring about drastic changes in the crimi-nal justice system in India. The commit-tee responsible for the draft policy on criminal law in India was set up under the chairmanship of Madhava Menon in May 2006. The process was complete by 2007 and the draft model police bill is be-ing circulated to all states, with the request that each state implement the changes set out in it. The committee sub-mitted its report to the government in July 2007. It is largely concerned with the victim-oriented criminal justice system, which waters down the time-tested basic principles of criminal jurisprudence. The attempt is to move towards an inquisito-rial system rather than an adversarial sys-tem. The model police bill gives enormous and unchecked powers to the police force which would enable it to act with impunity. Meanwhile, the Draft National Policy on Prison Reform and Correctional Adminis-tration is also ready and will be presented to the government soon. Prima facie, the draft policy seems to be very liberal and consid-erate towards the plight of the prisoners but it is doubtful whether this is enough to bring in drastic and positive changes in the prison administration and consequently in the conditions that prisoners face.Terms of Reference The terms of reference of the committee are: to review the present status of the legal position and suggest amendments if required on the prison-related laws enacted by the centre and states, to re-view the recommendations made by various committees and choose tangible recommendations which are required to be implemented by the centre and states, and to review the status of implementa-tion of these recommendations with refer-ence to the following: physical conditions of prisons, condition of prisoners, correc-tional administration, prison personnel, any other issues related to modernisation of prisons and correctional administration and suggestions regarding alternatives to imprisonment. Important Recommendations One of the important recommendations is that principles of management of prisons and treatment of offender should be incor-porated in the directive principles of state policy embodied in partIV of the Constitu-tion of India. Although this does not give any direct right to the prisoners, it is a huge step forward in the scheme of prison reforms in the country. New Bodies: The committee has also rec-ommended setting up a department of prisons and correctional services to deal with adult and young offenders, and also the setting up a full time national commis-sion on prisons. Alternatives to Prison: The committee has also recommended alternatives to imprisonment and extensive amendments to the Prisons Act of 1884. One of the mostcommendable recommendations of the committee is that young offenders (between 18 and 21 years) should not be confined in prisons meant for adult offenders. In addition, persons arrested for political-economic agitations for declared public cause shall not be confined in prisons along with prisoners either. Also, that the term of “sentence for life” should not be “at least” 14 years of incarceration and persons should be released before the 14-year period is over. Rehabilitation: There are also certain good recommendations regarding the correctional administration and the reha-bilitation of prisoners. One example of this isthe recommendation to provide group Vijay Hiremath (vijayhiremath@gamil.com) is with the Indian Centre for Human Rights and Law, Mumbai.
COMMENTARY

insurance to the prisoners and to make the procurement of loans easier for rehabilitated prisoners. The committee also discusses placing the rehabilitated prisoners with industries in order to facilitate the process of rehabilitation.

Reducing the Prison Population: It has suggested several methods to reduce the prison population in the country. The emphasis is on reducing the population of undertrial prisoners by speedier trials, trials in fast track court, special courts in jail and trial by video conferencing.

Prison Personnel: It has suggested that senior level police officers from the police department should be taken in fair numbers who will be in a better position to secure a relationship of cooperation and collaboration with the police department.

Prisons: The committee speaks of modernising the prisons in the country and also renovating the present prisons so that adequate sanitation facilities are provided to the prisoners. It has also recommended that there is a need for new prisons to be built with all the modern facilities.

Concerns with the Policy

Some of the suggestions of the committee are laudable but if we look at the policy overall it fails to be comprehensive and does not take the conditions of prisoners and prisons into proper consideration.

The inherent problems with the draft policy begin with the constitution of the committee itself. It consists of only highranking prison officials or officials working on correctional administration. There is no representative from the judiciary, the bar, or organisations working with prisoners for many years, researchers and academics who have worked extensively on the issue of prisons and prisoners. These persons and organisations could have given valuable inputs on improving the conditions of the prisons and the prison administration.

The entire exercise of drafting the policy was a very discreet one. Many voluntary groups which work with prisoners met recently in Delhi and were unaware about such a policy being drafted. Though the policy talks about participation of nongovernmental organisations (NGOs), there is little evidence from the report that this took place in practice.

Recommendations

The committee has suggested wide ranging changes to the Prisons Act of 1894. It has also suggested that all the states should draft a uniform prison manual on the basis of the model prison manual prepared by the BPRD. Unfortunately, the committee has not looked into the failure of the implementation of the Mulla Committee report, which had

given excellent recommendation on improving the prisons in India. The draft policy in this case puts too much emphasis on the model prison manual and many of the recommendations seem to have been simply copied from the model prison manual.

In terms of physical conditions of prisons the committee has stressed mainly on building new modern prisons using the latest technology. The policy also speaks of easier bail provision and the using of s436-A of the criminal procedure code and

june 28, 2008 EPW Economic & Political Weekly

COMMENTARYEconomic & Political Weekly EPW june 28, 200831use of the Probation of Offenders Act 1958. Contrary to the fears sought to be raised by bureaucrats that prisoners will go scot-free due to this section, it actually waters down the earlier provisions of bail laid down by the apex court in the case of Rajdeo Sharma. The committee has also put too much emphasis on speedier trials in order to reduce the under trial population in prisons. It goes so far as to state that video con-ferencing technology should be used even for trials. This is a serious concern: video conferencing cannot substitute the pro-duction of the accused in court. Being pro-duced in court is the right of the accused and a trial conducted by video conferencing cannot be termed a free and fair trial. It is a basic right of the accused to have a confi-dential consultation with his lawyer. To conduct a trial through video conferencing would deny him this fundamental right. The committee has almost neglected to consider the convict population in the pris-ons. There are a large number of prisoners who are convicted by the lower courts and are awaiting the hearing of their appeals in the higher courts. In many cases the appeal of an accused does not come up for hearing in high court in Mumbai for nearly four to five years. There is also a greater need for expedited appeal hearings. This will be possible only if the number of the judges in the higher judiciary is increased. The committee also speaks of having special courts/lok adalats in prisons. This is a dangerous suggestion as the prisoners might be forced to plead guilty in the hope of getting a lesser sentence without being fully aware of the consequences of having a conviction against one’s name. Recommendations regarding wages say that the wages of the prisoners should be shared with the victim of the crime as compensation. This clearly amounts to punishing a person twice over. The prisoner is serving in the prison as a punishment and taking away his wages will amount to double punishment. The recommendation on involving high ranking police officials in prison adminis-tration is also potentially danger-ridden asfar as the independence of the prison administrations is concerned. If this is implemented there would not be any dif-ference between police custody and judicial custody and the torture and harassment of inmates which regularly takes place in the police lock-ups may extend to the pris-on also. In addition, this measure would allow for too much police interference in the prison administration. Setting up a prison commission and prison boards in all the states is needed but the drafting committee is silent however, on the powers, functions and structures of these new bodies. The ex-periences of the functioning of the sever-al commissions show that it is extremely important to discuss all these issues at the policy level and to come to some firm conclusions for action. Otherwise, all we will be left with is just one more recommendatorybodywhich has failed to carry out its mandate.Neglected Areas Though the committee members are high ranking prison officials the policy shows ignorance regarding the present conditions of the prisons and the prisoners and the changes that can be brought about. In terms of the health of prisoners the only recommendation is that there should be a health check-up while the prisoner is being admitted in prison followed by a periodic check-up. Many prisons in the country do not have doctors though they need to be present round the clock. There is need for a dentist and a dermatologist as also for other specialists to visit the prison often. There is no mention of pro-viding proper treatment to the prisoners suffering fromHIV/AIDS, no suggestions of special diet for the sick and old prisoners and no mention of preventive measures. The policy on the other hand talks about segregating the prisoners who are HIV +ve.The policy is as good as silent on the aspect of health and emergency care for prisoners and does not address the parti-cular health aspect of women prisoners and their specific needs including those of pregnant prisoners and lactating women prisoners. It also does not talk about the time line in deciding parole and furlough applications which are extremely impor-tant as the authorities often take years to decide on these applications. Another important aspect the commit-tee has failed to make any comment upon is the prompt release of the prisoner once he or she has been acquitted or discharged from the case by the higher courts. There have been cases where prisoners have languished in jail despite being acquitted for weeks or sometimes months before they are actually set free. There needs to be proper coordination between the court officials and the prison officials for this. Orders passed by the court can be ac-cessed by the prison officials via internet or fax rather than waiting for the certified print copies of the orders to reach the prisons. Many a times it takes weeks for this process to be completed.Though the committee states that the ties of the prisoner with society should not be broken, there is no mention of conjugal rights of prisoners nor is there any men-tion of voting rights. Today a person in jail can contest elections but is denied the basic democratic right of casting his/her vote. Improving the modes of communica-tion between the prison inmates and their families is one aspect of prison life that the committee could have looked into. The prisoners and their families have to wait for letters and when they are allowed to meet in prison it is for a very short time. Since there are a number of other prisoners meeting their families at the same time the communication is marked by chaos, noise and a complete lack of privacy. The policy is also completely silent on the quality of food in the prison. Did the committee not realise that these aspects too fall under the ambit of prison administration and prison reform? Legal aid has been given a token men-tion in the policy but again there is no comment on why the legal aid system in India has become dysfunctional and what should be the ways and means to improve it. There are several juveniles languishing in prisons in the country. Through our legal aid project we have succeeded in transferring many juveniles to the obser-vation home from jails, yet there is no mention in the policy of what the prison administrations should do, as the policy just mentions that persons below 18 years of age should not be in adult prisons. Looking at the previous record of the government, there is little hope for change through this policy which fails to address issues of central importance such as a timeframe for implementation, and, more importantly, budgetary allocations within
COMMENTARYjune 28, 2008 EPW Economic & Political Weekly32Agrarian Reform: Lessons from the PhilippinesManoshi Mitra Dasrelevance of land reforms even today in poverty reduction, and in fundamentally altering power dynamics from a feudal structure to a democratic one, where all citizens can function equally without owing any kind of servitude to another citizen.Agrarian Reform LawIn the post-Marcos Philippines, the new constitution passed in 1987 enshrined high ideals of equality and social justice. One of the main goals was agrarian re-form. The statutory guarantee of agrarian reforms was fulfilled in the following year by the passage of the comprehensive agrarian reform law (CARL) based on which the comprehensive agrarian reform programme (CARP) was implemented. The duration of the programme was initially for 10 years (1988-98) followed by an ex-tension until 2008. Now the motion to get it extended for another length of time is gathering momentum.The CARP is one of the most wide-reaching programmes of reforms, which includes compulsory acquisition and dis-tribution of all agrarian lands without ex-ception, and entitles all tillers to land. It has the unique distinction of including comprehensive support services for bene-ficiaries of the programme gathered to-gether to form homogeneous rural com-munities. These include credit, infrastructure including power, roads, water supply and sanitation, irrigation, processing facilities and markets. Services of non-governmental organisations are used to organise the beneficiaries into cooperatives and other organisations for technology transfer and enterprise promotion among other services. The programme was to be funded by government budgetary transfers from the appropriations of the ill-gotten wealthof the Marcoses. While there is a ready debate on the extent to which the the central budget and the state budget for the prisons in India.Conclusions Despite its faults the draft policy does con-tain some fine recommendations. However, a national prison policy must be much more comprehensive than the one we have before us. Overall the policy is very simplistic The Comprehensive Agrarian Reform Programme in the Philippines has made substantial progress in dealing with land reform. Much more remains to be done and Filipino society is actively engaged in critically discussing the past and the future ofCARP. There are lessons here for India where policymaking circles remain obsessed with growth and have forgotten land reform.Those who live outside the Philip-pines often associate it with tour-ism, labour migration, and the in-famous dictatorship of the Marcos regime. Rarely if at all do people associate it with radical attempts at agrarian reform, in particular land reform. For post-colonial societies in south Asia, land reform was born and died a quick death in most instances. In India, where land is a state subject, attempts at land reforms were not uni-form. While the Indian National Congress committed itself vaguely to land reforms early in the Karachi Resolution in 1931, its approach towards land reforms remained lackadaisical. After independence, the re-sults of land reforms were at best patchy, with gains in a few states, and a large part of the semi-feudal agrarian relations left intact. The inequitable distribution and control over land and labour has re-mained, until today, a fundamental cause of rural poverty and the growth of violent forms of rural protest. Today much of what is termed as “Naxal violence”, is actually rooted in the institutionalised inequality characterising Indian society, to which effective land reforms could provide an effective solution. However, in the glow of India’s economic growth rate obsessed state, there is little serious attention being given to land reforms today, by those in positions of power and responsibility. The situation in other south Asian coun-tries is much more dismal in the area of land reforms. However, the Philippines sets astrong and positive example of the in resolving the problems regarding pris-ons and prisoners in the country. A lot more could have been achieved if there were representatives from allied fields rather than only the high ranking prison and police officials on the committee.Time and again the Supreme Court and the various high courts in the country have issued orders regarding the conditions of the prisons in the country but it appears that most of these orders have been neglected in the drafting process of the new policy. There is no action plan or time line for changing the situation and imple-menting the policy. On reading the draft policy it is hard to shake off the suspicion that it does not envisage the recommenda-tions being implemented seriously.Manoshi Mitra Das (mmitra@adb.org) is with the Asian Development Bank.

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