The principle in which India believes is primarily reformation of offenders and others as prevention, deterrence, retribution is secondary in priority. The reformation of offenders has been given utmost importance in Indian criminal jurisprudence and one of the Cardinal principles of criminal jurisprudence in India is presumption of innocence, accused to be presumed as innocent until proven guilty, the presumption of innocence is a basic human right. Subject to statutory exceptions the said principle forms the basis of criminal jurisprudence in India, as laid down in landmark judgment of honourable Supreme Court of India in Ganesan v Rama Raghuraman (2011)[i] and Kailash Gaur v State of Assam (2012)[ii].

The situation of prisons in India is not as good as it should be marching towards an objective and facilitate towards ends on the other hand it should also be examined how far the Fundamental Rights of undertrials and convicted prisoners are secured in four walls of the prison.

Relevance of Human Rights

Human Rights are very fundamental; they are rights that are a bare necessity for the dignified survival of humans. The reflection of human rights could be seen and felt ensured under Part - 3 of the Indian constitution, from Article - 12 to 35. Human rights are considered as the rights which one is entitled to, just by being human.

These are rights we have simply because we exist as human beings - they are not granted by any state[iii]. Article 1 of the United Nations Declaration of Human Rights states: "All human beings are born free & equal in dignity and rights. Article 21 of the fundamental law of the land, states no one shall be deprived of his life and personal liberty except the procedure established by law [iv].

Prisonisation reflects a system of punishment and also an institution for placements of undertrials and suspects during the period of trial. The term prison is derived from the Latin term prensio(n- ) which means laying hold of or to seize. According to Oxford English Dictionary Prison means a place that is properly efficient & equipped for the reception of persons who by the legal process are committed to it for safe custody while pending trial & punishment[v].

As per Collins dictionary "A prison is building where criminals are kept as punishment or where people accused of a crime is kept before their trial[vi]. Prison is not a new phenomenon; it existed in India in a well-organized form from the very earliest times. Ancient Indian Jurist Brahaspati laid great emphasis on the imprisonment of declared guilty offenders in closed premises, Kautilya was in favour of the prison system but Manu was not. In India, it was common practice to keep the prisoners in solitary confinement to afford them an opportunity for self-introspection[vii].

Currently, the prisons in India are governed by the Indian Prison Act, 1894 and Rules and Regulations of prisons are laid down in the prison manual of the respective states, due to prisons being a state subject.

Current status of prisons in India

The prisons in India are not having the adequate infrastructure to subserve the aim and objective of punishment which is the reformation of offenders. The evolving criminal jurisprudence now aims at rehabilitation of the offender, for which our present prison as an institution is ready or not is subject to introspection, but factually our prisons are overcrowded, lacking adequate infrastructure, some instances of torture and inhumane treatment of prisoners also exists.

National Crime Record Bureau 2019 data says currently there are 1,350 functional jails in India, with a total capacity of approx 4 Lakh prisoners but actual strength exceeds 4.78 Lakh. In that, 4.3% are women prisoners. In total prisoners, 69.05% (approx. 3.3 Lakhs) were undertrials and just 30.11% are convicted for acts or omissions considered as a crime.

The occupation rate in all prisons is on an average of 118.5% that reflects strength in prisons is beyond their capacity and prisons are overcrowded. Generally, undertrials spend 3 months to 5 years in jail before getting bail. Out of India's total of 4, 88,511 prisoners as of 31/12/2020, reportedly 3, 71,848 persons, around 76.1% of inmates were undertrials. The remaining 23% that is (1, 12,589 prisoners) were convicted and 0.7% means (3,590 prisoners) were detenues[viii].

Problems with Prisons in India

In India prisons suffer from various problems, apart from proper opportunity of reformation and restoration, there are some very basic as well. In the Landmark judgment of Rama Murthy v. State of Karnataka (1997[ix]) the court noted nine major problems which needed immediate attention:

1. Overcrowding
2. Delay in trials;
3. Torture and Ill-Treatment;
4. Neglect of health and hygiene;
5. Insufficient food and inadequate clothing;
6. Prison Vices;
7. Deficiency in communication;
8. Streamlining jail visits;
9. Management of open-air prisons;

Unfortunately, Indian prisons are still struggling with most of these vital issues.
Former Chief Justice of India Sh. R.C Lahoti pointed out four major issues with which prisons in India are suffering:

1. Overcrowding in prisons;
2. Unnatural death of prisoners;
3. Gross Inadequacy of staff;
4. Available staff being untrained or inadequately trained.

Apart from these highlighted and specifically mentioned problems, there are a few major problems in Indian prisons as the problem of prison discipline, the problem of prisoners' health, The problem of criminality in prison, The unnatural death in prisons along with corruption and other evil practices being followed.

Problems with undertrial prisoners in India

The problems of undertrials have assumed new proportions in India. On the one side, undertrials in prison are already considered guilty in society on the other hand thousands of undertrials are languishing in jails in different parts of India for much longer than if they would have been convicted they would have to suffer.

The pre-trial detention is to ensure the presence of the accused and to restrict the accused from tampering with shreds of evidence and influence witnesses essentially involves the question of liberty, the burden on public exchequer, justice and public safety.

The poorer are generally subject to long term pre-trial detention mostly because they can't furnish surety and stand personal bonds for bail. Mr Justice V.R Krishna Iyer in the landmark judgment of Moti Ram v. State of Madhya Pradesh, (1978) highlighted the agonies of pre-trial detenues in these words-

"The consequences of pre-trial detention are grave. Defendants presumed innocent are subject to psychological and physical depravation of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent member of his family"[x]

Expressing grave distress and concern on undertrials condition in Bihar, honourable Supreme Court of India in Hussainara Khatoon v. Home Secretary of Bihar (1979)[xi] incarceration of undertrials who have virtually spent their period of the sentence was an illegal and blatant violation of their Fundamental Rights guaranteed under Article - 21 of Constitution of India. In this very judgment, the court observed a speedy trial as one of the postulates of Article - 21 of the Indian constitution and the state cannot avoid constitutional obligation by pleading administrative and financial inability.

In India we are having provisions in Criminal law, C.r.P.c Section - 167 which limits time for completion for police investigation; we have sections - 303, 304 in our C.r.P.c, that promote legal aid for indigent accused. Despite having such wonderful laws in books we are tremendously lacking in practice and the situation of undertrials in an Indian prison is concerning and alarming.

Prison reform and available alternatives

The future lies in solutions, not in concerns and solutions and suggestions have been given by various committees to the government of India, what is required is the implementation of those suggestions insole and spirit, after analyzing the feasibility of those suggestions with an Indian situation.

Suggestions and Recommendations made by several committees

In India, in the year 1980 the Government of an India set up, a committee on jail reform under the chairmanship of Justice A.N. Mulla, a committee popularly is known as Justice Mulla Committee. The committee after observing rules, regulations and present situation and studying thoroughly made several suggestions in its detailed report, as "Establishing all India cadre for prison staff & bringing prison under the concurrent list of schedule 7 of Indian Constitution, the further committee recommended that the Government should form a National Policy on Prisons with using alternatives to imprisonment such as community service, etc.

The expert committee for looking up the women prisoners was constituted by the Government of India in the year 1986 -87 under the chairmanship of Justice V. R. Krishna Iyer, popularly known as V. R. Krishna Iyer committee. The committee gave various suggestions to the government of India as the establishment of Separate institutions with women employees alone for the women offenders, suggested to incorporate necessary provisions to restore the dignity of women even if women are convicted.

Another committee, headed by the Director-General, Bureau of Police Research and Development (BPR&D) in 2005, used the reports of Justice Mulla Committee Report & Justice Krishna Iyer Committee and made several additional and new recommendations. The committee also drafted a National Policy on Prison Reforms and Correctional Administration, 2007.

 The committee headed by Director General (BPR&D) suggested GOI amend the constitution to include the principles of prison management and treatment of undertrials under Directive Principle of State Policy, & also to include prisons in the concurrent list of the seventh schedule along with the enactment of uniform & comprehensive law on matters related to prisons. In its recommendation committee recommended establishing a department of Prisons and Correctional Services in each state and Union Territory.

The NDA government in the year 2000 formed a panel headed by the former Chief Justice of Kerala & Karnataka High Court, Justice V.S. Malimath, and the committee is popularly known as Justice V.S. Malimath Committee, to give suggestions on the century-old criminal justice system. The committee made several recommendations which are even now considered the dire need of the hour.

Justice v/s Malimath Committee's recommendation on Sentencing:

1. The Committee was in favour of a permanent Statutory Committee to prescribe sentencing guidelines, which should be adhered to and followed while sentencing
2. Pregnant women and women having children below the age of seven years can be kept under house arrest, instead of being lodged in prison, keeping in mind the future life and best interest of the child, Committee said, in cases where the interest of society is not involved, the law should favour settlement without trial as recommended by the Law Commission.
3. Committee recommended the fine amount to be increased by fifty times. In cases where the convict is unable to pay a fine or has defaulted, community service may be prescribed.
4. The Committee also favoured substituting death sentence with imprisonment for life without commutation or remission.
5. The Committee suggested being review "The Indian Penal Code" to enhance, reduce or apply alternative modes of punishments keeping in mind new and emerging crimes.

In 2018, the honourable Supreme Court appointed the panel headed by Justice Amaitava Roy to study prison reforms. The committee popularly known as Justice Amaitava Roy Committee, submitted its detailed report on February 2020 with major recommendations including the aspects of overcrowding, setting up Special fast-track courts to deal with petty offences, for Lawyers - prisoners ratio: the committee was of the opinion; there should be at least one lawyer for every 30 prisoners.

In respect to understaffing, the committee submitted that the Supreme Court should pass directions to start the recruitment process against vacancies along with other important suggestions like There should be the use of video-conferencing for trial, the new prisoners should be allowed a free phone call in a day to his family to see him through his first week in jail and alternative punishments mechanisms should be explored.

Judicial contributions for the interest of prisoners:

In the landmark judgment of Raj Deo Sharma vs. the State of Bihar (1998)[xii] honourable Supreme Court of India issued direction that:
If the trail is of the committed offence for which the period of imprisonment exceeds the seven years then the court should close the prosecution evidence within the period of two years from the date of the record of the plea, no matter that accused was in jail or not.

In the landmark judgment of D.K. Basu vs. State of West Bengal 1997[xiii], which is still considered a milestone in criminal jurisprudence of India, the honourable court framed extensive guidelines and held that torture during custody is a gross violation of human dignity and is degrading to the individual personality. The right to life and liberty is an expression of human rights. So, the court held that no person who is arrested can be detained in custody without giving him knowledge and information about the grounds of the arrest and he should not be denied for the right of the legal practitioner.

In the landmark judgment of Rudal Shah v State of Bihar 1983[xiv], the court awarded compensation to the victim Mr Rudal Shah, for unlawful detention for more than 14 years, the court ordered to pay 30,000/- Rs as an interim measure irrespective of 5,000/- already paid.

Remedies to reduce the distress of prisoners and serve the objective of punishment:

The Government of India should frame a National Policy on prison and form a National Commission on Prisoners to look into matters more seriously. The holistic development of prisoners should be ensured like stress management, yoga, mediation etc. The United Nations Convention against torture should be rectified and the staff should be sensitized about the need to treat prisoners as humanely as possible.

The people should also be sensitized which will help in changing the people's attitude that "Everyone inside the jail is not a criminal, he is either an offender or could also be an under trail".

The budgetary allocation for the Criminal Justice System requires to be increased. Interactive and community policing needs to be encouraged in all possible ways, Open prison or semi-open prison needs to be encouraged like that in UP and Rajasthan, reformative and rehabilitative measures need to be introduced and experiments should be done on various kinds of prisoners to test its effectiveness. The government should implement the suggestions and recommendations made by various committees, as far they are practical and possible.

Conclusion
The adoption of the above-mentioned suggestions and recommendations of Justice Mulla Committee, V. R. Krishna Iyer committee, Recommendation of Director General, Bureau of Police Research and Development (BPR&D), Justice V.S. Malimath Committee, Justice Amaitava Roy Committee along with the strict application of judicial guidelines and implementation of legislative provisions in their soul and spirit will tremendously benefit the prison administration in India.

The adopted measure is going to help in reducing overcrowding and operational costs in prison administration, reduction in cost on one hand and increased budgetary allocation will help in the infrastructural development of prisoners. It will reduce the psychological pressure and lack of confidence when they assimilate into society.

The Indian government needs to develop a humane attitude about the offenders in society. In way to ensure speedy trial and ensuring the presence of the accused we need to wisely utilize the DNA FORENSIC LAB in Chandigarh and pass The DNA Technology (Use and Application) Regulation Bill, 2018 to reduce the overcrowding by the faster conviction of offenders, Extending Legal Right to Vote prisoners and Free Legal Aid (Directive Principle entrusted in Article 39a of our Constitution) will develop willingness in prisoners to get reunited with the society and make a new beginning. The prison administration and the state jointly shall ensure no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment and no one shall be subjected to arbitrary arrest, detention or exile.

End-Notes:

1. (2011) 2 SCC 83 : AIR 2011 SC 419
2. (1012 cri LJ 1050 (SC)
3. https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx
4. Article - 21, Part - 3, Constitution of India
5. https://www.oxfordlearnersdictionaries.com/definition/american_english/prison#:~:text=1%5Bcountable%2C%20uncountable%5D%20a,to%20prison%20for%20five%20years
6. https://www.collinsdictionary.com/dictionary/english/prison
7. Paranjape N.V, P - 515, Ed - 18th, 2019, Criminology & Penology, Central law Publications
8. https://ncrb.gov.in/sites/default/files/PSI_2020_as_on_27-12-2021_0.pdf
9. A.I.R 1997 S.C. 1739.
10. Moti Ram v. State of Madhya Pradesh, (1978) 4 S.C.C. 47 at p. 52 para 14.
11. A.I.R. 1979 S.C. 1360
12. (1998) 7 CC 507
13. 1997 1 SCC 416
14. 1983, AIR 1086

Written By:

1. Mr Pranjal Chaturvedi - Student Of The 4th Year Of B.A.LL.B From Sharda University School Of Law.
   Email: [email protected] and
2. Miss Aishwarya Majumdar - Student Of The 4th Year Of B.A.LL.B From Sharda University School Of Law.
   Email: [email protected]