It has now been more than five years. She has not been convicted of any crime. And yet, her incarceration endures – not as a sentence handed down by a court, but as an unending wait, sustained by a trial that never arrives.

§

Gulfisha Fatima has now been imprisoned for over 1,900 days.

This year, on the fifth anniversary of her incarceration, a solidarity week was organised for her. Artists created posters. Writers wrote essays. We shared her story again, in public and private spaces, hoping that her name does not disappear under the weight of silence.

I mailed her a letter with the printed posters created in solidarity with her by a few artists – drawings that said ‘Free Gulfisha’. Not as a campaign or a legal demand, but a gesture of care. The kind of solidarity that says: you are not forgotten, and they haven’t succeeded in making us forget.

But the prison did not deliver the letter. The posters, it seems, were “unacceptable.” Too political, or perhaps too hopeful.

What is the state afraid of? Posters, apparently.

Between censorship and care

This wasn’t the first time something in my letters had been censored. I remember the first one I received from Gul – whole phrases had been erased with a white marker. I couldn’t make sense of what she was trying to say, or who she was referring to. Later, a friend explained that whenever the jail authorities find something objectionable, they simply blot it out with correction fluid.

What were the words being erased with whitener? Underneath those erased spaces were stories from Gul’s PadhoPadhao program – narratives about how, despite describing herself as impatient, she had become the teacher her mother always said she would be. These were letters tracing how incarceration had begun to reshape her: how she was being pushed into roles she had never imagined or wanted for herself – teaching, learning to make jewellery, sitting still for hours, enduring solitary confinement for days on end.

After that, every letter I wrote became an exercise in evading censorship. I tried to fill the pages with stories and sentences that wouldn’t be silenced. I told her about my vegetable patch, my cat, my father and my city. Each letter began to feel like those school assignments: Write a letter to your friend describing your day.

Except here, the state was assigning the prompt.

How do you write about what matters, without inviting erasure?

So I asked her questions instead, like where would you like to go on a holiday once you are out? Have you seen a beach?

She wrote back to say she’d never seen a beach. That she couldn’t imagine what it felt like to think of a ‘vacation’ much less stand at the edge of the sea, feet buried in the sand.

I started searching for photos that might convey the quiet joy of that moment – that stillness, that release. I thought of the beach photos by my friend Varun, a Chennai-based photographer who describes his work as an exploration of spaces – streets, beaches, rooftops etc. His work doesn’t draw attention to itself, and yet it stays with you – the quiet texture of everyday life, without turning people’s lives into a spectacle.

It reminded me of something Annie Ernaux gestures toward in her writing – that the everyday is never neutral (Jacobin, 2022). That to record it is not indulgent, but defiant. A way of refusing the erasure that time, power or distraction so often imposes. To linger on the mundane is also to affirm that it mattered.

And perhaps that’s why I thought of those photographs, of Gul’s life in prison, and of Annie Ernaux – because all three are preoccupied, in their own ways, with the dignity and weight of the ordinary.

I requested a copy of the photos and sent it to her; and they got delivered. After the posters didn’t make it through the jail bars, I was curious (and grateful) how the previous photos had made the cut. I realised that Varun’s photo, in its quiet ordinariness, slipped past the censors likely because it did not look political. The state missed how tenderness, too, can be a radical refusal to forget or abandon. It helped Gul escape from her immediate surroundings for a minute.

She loved the photos and wrote back saying: “I crave normal moments like these. To me, even ‘normal’ now feels like a gift.”

And in the midst of all this, somehow, our friendship grew.

We don’t come from the same city. We weren’t born into the same caste, religion or class. We didn’t go to the same universities or share any obvious markers of a shared world. We are not the same. One of us is in prison. The other is writing this from outside. And yet, in a time when it is often claimed that people from different backgrounds cannot truly understand each other, our friendship has become something rare and deeply cherished.

I remember a time, about a year and a half ago, when I was going through a rough patch. My letters to her grew infrequent, scattered, weighed down by everything I couldn’t bring myself to say. In response, Gul wrote back – gently, with concern. “Are you okay? she asked. It’s unlike you to be so quiet.”

Tucked inside her letter was a small keychain she had bought for me with her prison wages. It was her way of reaching across the bars, of being there for me in the only way she could. That letter marked a quiet turning – an unexpected tenderness. Despite everything she was enduring, it was Gul who took on the larger share of care.

And no matter how many words are blotted out, how many letters are intercepted – this is something the state cannot erase.

Silence as strategy: Censorship and carceral control in India

Writing from prison is never just a personal exercise – it is political. And it is subjected to opaque, unchecked censorship. Prison authorities are granted sweeping discretion over what detainees can send or receive, with little public accountability. While the Prisoners Act of 1894 and the Model Prison Manual of 2016 formally permit letters and reading material, these rights are routinely curtailed by vague provisions allowing officials to withhold anything deemed “objectionable” or “a threat to discipline or security”.

Rule 43.17 empowers superintendents to intercept letters “likely to endanger prison security.” But what qualifies as a threat remains undefined. There is no obligation to document decisions, no route for appeal. Letters disappear. No explanation is given. No one is notified. This is censorship by silence – absence masquerading as order.

For those charged under the Unlawful Activities (Prevention) Act (UAPA), this regime of erasure becomes more insidious. Since its enactment in 1967 – and especially after amendments in 2008 and 2019 – the law has enabled prolonged detention without trial, often on speculative evidence. The 2019 amendment allows individuals – not just organisations – to be labelled “terrorists,” vastly expanding the scope of pre-emptive criminalisation.

Under Section 43D(5), bail is nearly impossible. Judges must accept prosecution claims at face value, reversing the burden of proof. Accusation becomes punishment. Professor Ujjwal Kumar Singh (2007) calls this a “detention democracy” – where the rule of law coexists with a parallel regime of suspension. Rights exist on paper but remain materially inaccessible.

This is not just the condition of those charged under UAPA – it is the logic of the prison itself. Surveillance, solitary confinement and disrupted communication are not exceptions but embedded features of carceral life. For some, especially political prisoners, these controls may be intensified. But often, the inverse is also true: ordinary undertrials, those without public attention or legal support, may experience even deeper abandonment.

What results is more than legal incarceration – it is an emotional severance. Books may get denied. Clothes for Eid from friends get denied. Letters are redacted or withheld. Care is filtered through bureaucracy.

The prison becomes a space of quiet erasure – where silence is institutionalised, and the threads of memory and connection are gradually worn thin.

What it means to remember

The refusal to deliver the letter with posters was not a surprise. Many of us who write to political prisoners have faced similar outcomes. We write, we send, we wait. Often the message arrives months later. Sometimes never. Sometimes the prisoner is told. Sometimes not. But this refusal still matters. Because it shows how deeply the state fears memory. To make a poster or to write a letter or to read her poems is to assert that solidarity is still possible – despite the fences and the years that pass.

Even when the message doesn’t arrive, it has already done its work.

When we speak of repression, we often speak of grand spectacles – raids, arrests, bans, surveillance. But power also works in small, daily gestures. The unmailed letter. The returned book. The silence from the prison gate. These small gestures are how repression is normalised.

They create a slow withdrawal not just from the prisoner, but from the political itself. Families and friends, unsure of what is safe, stop sending things that can be returned, stop writing certain words or phrases so that the letter does not go undelivered. Artists, afraid of being watched, stop drawing faces.

The prisoner does not just disappear from view – the effort is to gradually erase their side of the narrative in the public’s moral and imaginative landscape. Over time, the very idea of dissent becomes fragile, unspoken. The blank space is no longer just a person. It is a society trained to look away.

​​Perhaps, this is the quiet labour of solidarity: to resist forgetting. To write, to remember, to insist on presence even when presence is policed. Communication is controlled because it keeps the political identity alive.

A woman who writes, who remembers, or who is remembered – becomes dangerous. She unsettles the state’s narrative of isolation. Because the solitary prisoner is a myth; these women resist through community. Their letters become pamphlets. Their poems cross the boundaries of identity and confinement. Their art – sent or received – becomes a slogan, becomes memory. They remain in the movement even behind bars.

It is this continuity – of thought, of political belonging, of being claimed and held by others – that the state truly fears.

Anuradha Banerji is an activist and an independent researcher.

Courtesy: The Wire

The post How Prisons Become Spaces of Quiet Erasure appeared first on SabrangIndia.

The MHA order follows the Supreme Court of India’s ruling on August 23, 2024, regarding “Inhuman Conditions in 1382 Prisons.” The Apex court noted that the provisions of Section 479 of the BNSS would apply to all under trials in pending cases, regardless of whether their cases were registered before July 1, 2024, the date the new law took effect. The Supreme Court also directed that, “Compliance of the aforesaid provisions shall be made by the concerned District & Session Judges in all States/UTs who are in-Charge of the Under Trial Review Committees so that there is no laxity in implementation of the aforesaid beneficial provision.”

‘SC asks States to improve prison conditions’ can be read here

The Ministry of Home Affairs states in its order that overcrowding in prisons, especially the issue of large number of under trial prisoners, has been a matter of concern for the Government of India. For addressing the issue of long detention of under trial prisoners and the hardship faced by them, the Ministry of Home Affairs has been taking various progressive steps from time to time, including grant of financial aid to the States and Union Territories (UTs) for providing relief to such prisoners in seeking release from prisons

Further, ‘In context of the above, it is stated that Section 479 (1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has come into force with effect from 1st July 2024, provides that ‘Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail’ MHA stated in its order.

Notably, a new rule has been added to Section 479 (1) of the BNSS. It states that if a person is a first-time offender—meaning he/she has never been convicted of a crime before—he/she will be released on bond by the Court after serving up to one-third of the maximum period of punishment for their offense.

Legal mandate for superintendents of prisons

MHA directed all States and Union Territories (UTs) to recognise the specific legal responsibilities assigned to the Superintendents of Prisons. This includes disseminating pertinent information to relevant personnel and ensuring the effective implementation of the new provisions of the BNSS. Monitoring these initiatives is crucial for safeguarding the rights and conditions of undertrial prisoners.

MHA stated that section 479 (3) of the BNSS casts a specific responsibility upon the Superintendent of Prisons, where the accused person is detained, to make an application to the concerned court for release of such prisoners on bail. The text of Section 479 (3) is cited below for the information and attention of all prison authorities:

The Superintendent of Jail, where the accused person is detained, on completion of one-half or one-third of the period mentioned in sub-section (1), as the case may be, shall forthwith make an application in writing to the Court to proceed under sub-section (1) for the release of such person on bail.’

MHA direction to States and UTs;

E-Prisons portal for quick identification

To assist State and UT prison authorities in identifying eligible prisoners swiftly, the Ministry of Home Affairs has enhanced the national E-Prisons portal. This platform provides essential data, such as the types of offenses, maximum sentences, and timelines for completing a significant portion of the imprisonment term. The E-Prisons portal facilitates timely access to inmate information, aiding authorities in moving applications for bail more efficiently.

Support for poor prisoners

MHA stated that it has previously introduced the ‘Support to Poor Prisoners’ scheme to assist poor prisoners unable to pay fines or secure bail due to financial hardships. This initiative particularly targets socially disadvantaged individuals and low-income groups. Financial aid is provided through respective States and UTs, helping prisoners cover outstanding fines or bail bonds. Despite the Union Home Secretary’s communication of the scheme’s guidelines, many States and UTs have yet to fully leverage this opportunity.

However, MHA also noted that Union Home Secretary, vide his letter dated 19th June, 2023, had forwarded the ‘Guidelines and Standard Operating Procedure’ of the Scheme to the Chief Secretaries and DG/IG Prisons of all States and UTs. However, it is noted that many States/UTs are yet to take full advantage of this scheme despite MHA’s repeated persuasion in this regard.

Impact of active involvement

Active participation and oversight from States and UTs are anticipated to significantly improve the situation of long detentions faced by under trial prisoners, while also addressing prison overcrowding. States and UTs are requested to take full advantage of the national e-Prisons portal and the Support to Poor Prisoners Scheme for providing relief to prisoners.

The Ministry of Home Affairs’ directive on October 16, 2024, emphasises the urgent need to address the plight of under trial prisoners in India. Following the Supreme Court’s ruling on August 23, 2024, the implementation of Section 479 of the BNSS aims to alleviate long detentions and overcrowding. By utilizing tools like the E-Prisons portal and the Support to Poor Prisoners Scheme, States and UTs can significantly enhance the welfare of under trials and ensure fair treatment within the justice system.

Related:

‘End discriminatory regimes of colonial era,’ SC declares provisions of State Prison Manuals unconstitutional

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Sukanya Shantha, a journalist wrote an article “From Segregation to Labour, Manu’s Caste Law Governs the Indian Prison System”—published in December 2020—highlighting the caste-based discriminations in the prisons in the country. She also petitioned to the court to repeal the provisions in State Prison Manuals which perpetuate caste discrimination.

Not content with winning awards for the investigation, she petitioned the highest court in the land and achieved results. State have been given three months’ time to comply, make the required changes in their respective Prison Manuals. The Supreme Court has now taken suo moto cognisance of the continuing case, requiring compliance. The court is now examining discrimination inside prisons on any ground such as caste, gender, disability and asked all the States and also directed the Union government to file a compliance report.

This article aims to explain what the provisions were, what the arguments were against these provisions, and the reasoning of the judgement Sukanya Shantha vs. Union of India [2024 INSC 753]:

What are the discriminatory provisions?

Submissions by parties

Petitioners

It was emphasised that State prison manuals themselves endorse unconstitutional caste-based discrimination, violating multiple constitutional rights under Articles 14, 15, 17, 21 and 23. The petitioners also highlighted the various forms of discrimination in prisons across the country with respect to division of manual labour, segregation of barracks and provisions that discriminate against prisoners belonging to de-notified tribes and habitual offenders. The Model Prison Manual, 2016—prepared by the Union and circulated to states for them to adopt-does not address the provisions related to caste discrimination inside prisons, other than the discrimination in kitchens, argued the petitioners.

Petitioners also prayed that the Home Departments of the State Governments be directed to clarify the definition of Habitual Offenders in their respective prison manuals so as to prevent its misuse against denotified tribes in prisons.

Respondent-governments

The counsel for Union government submitted that the Model Prison Manual, 2016— circulated to all governments—explicitly prohibits caste and religion-based discrimination practices and that another advisory was given to states to ensure that prison manuals do not contain discriminatory provisions.

The counsel for the state of West Bengal submitted that the discriminatory provisions are under scrutiny and a proposal is underway to amend them. The counsel for the intervenor prayed for deletion of “caste’ column and any reference to castes in undertrial and/or convicts’ prisoners’ registers.

Judgement

Tests of Articles 14, 17, 21 and 23

The Supreme Court noted the various tests that have been evolved through decades of jurisprudence on Articles 14, 17, 21 and 23. It stated that the Constitution demands that colonial-era laws comply with its provisions. It emphasizes reversing colonial philosophies of subordinating individuals to the state, acknowledging past injustices to shape a just, humane future for all citizens, according to the Court. The Court stated that criminal laws must not reflect colonial or pre-colonial ideologies.

The following, essentially, are the tests and interpretations of concerned articles the Court arrived at, from the rich constitutional jurisprudence.

On Article 14: Article 14 permits classification if it is intelligible and reasonably connected to its purpose, but it cannot be arbitrary. Courts must assess the true legislative intent and prevent excessive or irrational actions by the state

[Para 34 of the judgement].

On Article 15: Discrimination can be direct or indirect, and laws must not harm marginalised groups. The state has an obligation to prevent both systemic and indirect discrimination, as courts are tasked with addressing the deeper roots of such biases

[Para 48 of the judgement].

On Article 17: Article 17 ensures equality and prohibits practices like untouchability. Laws such as the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989Act and those banning manual scavenging aim to uphold dignity and dismantle caste-based discrimination

[Para 54 of the judgement].

On Article 21: Under Article 21, prisoners retain their dignity and must be treated humanely. Prison systems should address both the physical and mental health needs of incarcerated individuals, ensuring their rights are upheld

[Para 67 of the judgement].

On Article 23: Article 23 prohibits exploitative labour practices, including non-payment of wages and lack of social security. It applies to both state and private entities, ensuring protection from degrading labour, even in prisons

[Para 85 of the judgement].

The Supreme Court acknowledged and extensively discussed the historical struggles faced by De-notified Tribes, tracing their challenges from colonial times to post-Independence India. It highlighted the transition from punitive measures for habitual offenses to their eventual decriminalization, which marked a significant shift in recognizing their rights. The Court also pointed out the establishment of the Criminal Tribes Act Enquiry Committee, which was tasked with examining the Act’s implications and addressing the injustices faced by these communities. Ultimately, this process culminated in the repeal of the Criminal Tribes Act

[Paragraphs 87-126 of the judgement].

The court stated as follows:

“Discrimination against the Scheduled Castes, Scheduled Tribes, and Denotified Tribes has continued in a systemic manner. Remedying systemic discrimination requires concrete multi-faceted efforts by all institutions. In discharge of their role, courts have to ensure that while there should be proper implementation of the protective legislation such as the PoA Act, there should not be unfair targeting of members from marginalized castes under various colonial-era or modern laws. With this nuanced approach, we shall now examine the prison manuals.”

[Para 144 of the judgement]

On Caste being an “intelligent principle of classification”

The Court noted that caste can be an intelligent principle of classification as it has been used to create protective policies for the marginalized castes. The Constitution recognises caste as a proscribed ground of discrimination under Article 15, it added. The caveat, according to the court was that any use of caste as a basis for classification must withstand judicial scrutiny to ensure that it does not perpetuate discrimination against the oppressed castes

[Para 164 of the judgement]

Valid Classification must be a functional classification, according to the court. The Court found that there is no nexus between classifying prisoners based on caste and securing the objectives of security and reform. In this context, it stated as follows:

“Inmates are entitled to fair treatment that promotes rehabilitation, and classification of any kind must be geared towards the same. Courts have been enjoined with the duty “to invigorate the intra-mural man-management so that the citizen inside has spacious opportunity to unfold his potential without overmuch inhibition or sadistic overseeing”. Segregating prisoners on the basis of caste would reinforce caste differences or animosity that ought to be prevented at the first place. Segregation would not lead to rehabilitation.”

[Para 166 of the judgement]

The court ruled that the differentia between inmates that distinguishes on the basis of “habit”, “custom”, “superior mode of living”, and “natural tendency to escape”, etc. is unconstitutionally vague and indeterminate. These terms and phrases, according to the Court, do not serve as an intelligible differentia, that can be used to demarcate one class of prisoners from the other.

[Para 162 of the judgement]

For the lack of both intelligible differentia and a nexus with the object, the Court ruled that the rules that discriminate among individual prisoners on the basis of their caste specifically or indirectly by referring to proxies of caste identity are violative of Article 14 on account of invalid classification and subversion of substantive equality.

On discriminatory manuals

The Court noted that the impugned provisions discriminated against marginalized castes and favored certain privileged groups. By assigning menial tasks, such as cleaning and sweeping, to marginalized castes while allowing higher castes to perform cooking, the provisions constituted direct discrimination under Article 15(1).

The Court highlighted that— phrases like “menial jobs” and “castes accustomed to perform such duties,” though appearing neutral, reflected historical discrimination and reinforced harmful stereotypes. This language perpetuated traditional caste-based divisions of labour, undermining the constitutional commitment to equality.

Furthermore, the Court criticised rules that classified individuals from de-notified tribes as inherently predisposed to criminality, which reinforced damaging stereotypes and excluded these communities from meaningful social participation.

Ultimately, the Court ruled that these discriminatory practices could not coexist with the constitutional values of equality and non-discrimination, emphasizing the need to dismantle oppressive frameworks that harm marginalized communities. [Para 175 of the judgement]

On Rules being violative of Article 17

To consider an occupation “degrading or menial” is an aspect of the caste system and untouchability, the Court noted. It stated as follows regarding the practices of untouchability in the Indian Prisons:

“Refusal to check caste practices or prejudices amounts to cementing of such practices. If such practices are based on the oppression of the marginalized castes, then such practices cannot be left untouched. The Constitution mandates an end to caste discrimination and untouchability. The provision that food shall be cooked by “suitable caste” reflects notions of untouchability, where certain castes are considered suitable for cooking or handling kitchen work, while others are not. Besides, the division of work on the basis of caste is a practice of untouchability prohibited under the Constitution.”

[Para 180 of the judgement]

The court particularly stated that a prisoner of a high caste be allowed to refuse the food cooked by other castes is a legal sanction by the state Authorities to untouchability and the caste system. On the provisions related to ‘wandering tribes’ and ‘criminal tribes’ the Court stated that these provisions reflect a stereotype that has its basis in the colonial understanding of the India’s Caste system. It stated as follows:

“These stereotypes not only criminalize entire communities but also reinforce caste-based prejudices. They resemble a form of untouchability, as they assign certain negative traits to specific groups based on identity, perpetuating their marginalization and exclusion. By marking them as “criminal by birth,” the law institutionalized a prejudiced view of these tribes, treating them as inherently dishonest and prone to theft. This stereotype—echoing elements of untouchability—reduced their humanity to a set of negative traits and perpetuated their exclusion from mainstream society. Once labelled a criminal tribe, individuals from these communities faced systematic discrimination in employment, education, and social services. The stigma attached to these labels extended beyond legal frameworks and became a part of social consciousness”

[Para 183 of the judgement]

On Right to overcome caste prejudices under Article 21

The court stated that the impugned rules foster antiquated notions of fitness of a particular community for a certain designated job. It noted that such rules are indifferent to the potential of the individual prisoner to reform and the state of affairs they operate in is entirely opposed to substantive equality as it contributes to institutional discrimination—depriving inmates of marginalised castes of an opportunity to reform like everyone else. In this context, it stated as follows:

“When Prison Manuals restrict the reformation of prisoners from marginalized communities, they violate their right to life. At the same time, such provisions deprive prisoners from marginalized groups of a sense of dignity and the expectation that they should be treated equally. When prisoners from marginalized communities are subjected to discriminatory practices based on caste, their inherent dignity is violated.”

[Para 188 of the judgement]

On caste-based division of labour being forced labour

The court noted that provision that “food” shall be cooked by prisoner-cooks of “suitable caste” empowers the jail officer to discriminate against the marginalised castes. The Court observed that it takes away the opportunity from them to cook food and the imposition of cleaning latrines and sweeping work to only “Mehtar, Hari caste or Chandal” or similar castes is forcing only a type of work, which is considered low-grade, upon them. In this context, the court noted as follows:

“However, the prison rules, by exploiting the labour of the oppressed castes, perpetuate the same injustice to guard against which Article 23 was inserted into the Constitution. Assigning labour based on caste background strips individuals of their liberty to engage in meaningful work, and denies them the opportunity to rise above the constraints imposed by their social identity”

[Para 195 of the judgement]

Is Model Prison Manual, 2016 adequate?

The court noted that the Model Prison Manual, 2016 defines ‘Habitual Offender’ as a prisoner classified as such in accordance with the provisions of applicable law or rules. The Court noted that since the phrase ‘habitual offender’ in several prison manuals refers to people for de-notified tribes or wandering tribes, the definition cannot be left to be interpreted and applied in accordance with the provisions of appliable law and rules.

The Manual prohibits neither the physical caste-based segregation of prisoners (except in prisons for women) nor does it prohibit division of work on the basis of caste, except in cooking.

The court noted that Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, which prohibit manual scavenging has a binding effect even on prisons. In relation to toilets, manual scavenging or hazardous cleaning of a sewer or a septic tank inside a prison shall not be permitted, ruled the Court.

[Paragraphs 200-208 of the judgement]

On Model Prisons and Correctional Services Act, 2023

The court noted that the Model Act does not contain any reference to the prohibition of caste-based discrimination, raising significant concerns about the potential for caste-based discrimination in prison management. It was highlighted that the officer-in-charge of the prison is empowered to utilize the services of prisoners for administration and management, which could lead to discriminatory practices if not properly regulated. The court suggested that a provision should be inserted in the Model Act to explicitly ban any segregation or division of work based on caste.

[Paragraphs 210-212 of the judgement]

Furthermore, the court pointed out that the definition of “Habitual Offender” under Section 2(12) is problematic due to its vague wording, stating that it refers to a prisoner who is committed to prison repeatedly for a crime. This broad definition could classify individuals as habitual offenders without requiring a proper conviction, potentially leading to unjust consequences. The Act also creates a separate category for “recidivists,” defined as prisoners convicted of a crime more than once, which allows for additional classification and segregation.

Additionally, the court expressed concern regarding Chapter IX of the Model Act, which addresses the protection of society from the activities of high-risk prisoners, habitual offenders, and hardened criminals. The provisions in this chapter were deemed over-broad, as they impose restrictions on parole and furlough eligibility for these categories of prisoners. The court emphasized that such provisions grant wide powers to the police, raising the possibility of misuse, and called for careful scrutiny to prevent potential abuses of authority.

On the term ‘Habitual Offender’

The court noted that “habitual offender” legislations were enacted to replace the Criminal Tribes Act but have been misapplied in certain states, such as Rajasthan, to refer to individuals from criminal tribes or de-notified tribes. This misuse has extended to various Prison Manuals and Rules, which have defined “habitual offender” in a manner that encompasses members of de-notified or wandering tribes. The court asserted that it is unacceptable to label an entire community as criminal, either historically or in the present context, emphasizing that the classification of “habitual offender” has been used disproportionately to target members of denotified tribes.

[Para 218 of the judgement]

Since the habitual offender laws enacted by the state are not under challenge, the Court did not go into their validity. However, it noted that the classification into Habitual offenders is Constitutionally Suspect given the vague and broad language employed by various laws and rules-which then can be used to target members of denotified tribes.

[Para 219 of the judgement]

The court urged state governments to reconsider the necessity of habitual offender laws within a constitutional framework. It stated that the definition of “habitual offender” in prison manuals and rules must align with the respective state legislation, pending any future constitutional challenges against the act itself. In the absence of such legislation, references to habitual offenders are deemed unconstitutional and were struct down by the Court. The court directed both Union and State governments to amend prison manuals and rules in line with this judgement.

Directions by the Court

1. The impugned provisions were declared unconstitutional for being violative of Articles 14, 15, 17, 21, and 23 of the Constitution. All States and Union Territories were directed to revise their Prison Manuals/Rules in accordance with this judgment within a period of three months;
2. The Union government was directed to make necessary changes, as highlighted in the judgment, to address caste-based discrimination in the Model Prison Manual 2016 and the Model Prisons and Correctional Services Act 2023 within a period of three months;
3. References to “habitual offenders” in the prison manuals/Model Prison Manual shall be in accordance with the definition provided in the habitual offender legislation enacted by the respective State legislatures, subject to any constitutional challenge against such legislation in the future. All other references or definitions of “habitual offenders” in the impugned prison manuals/rules were declared unconstitutional. In case, there is no habitual offender legislation in the State, the Union and the State governments were directed to make necessary changes in line with the judgement, within a period of three months.
4. The “caste” column and any references to caste in undertrial and/or convicts’ prisoners’ registers inside the prisons shall be deleted;
5. The Police was directed to follow the guidelines issued in Arnesh Kumar v. State of Bihar (2014) and Amanatullah Khan v. The Commissioner of Police, Delhi (2024) to ensure that members of Denotified Tribes are not subjected to arbitrary arrest;
6. The Court took suo motu cognizance of the discrimination inside prisons on any ground such as caste, gender, disability, and shall list the case from now onwards as In Re: Discrimination Inside Prisons in India. The Registry was directed to list the case after a period of three months before an appropriate Bench; On the first date of hearing of the above suo motu petition, all States and the Union government were directed to file a compliance report on this judgment;
7. The DLSAs and the Board of Visitors formed under the Model Prison Manual 2016 shall jointly conduct regular inspections to identify whether caste-based discrimination or similar discriminatory practices, as highlighted in this judgment, are still taking place inside prisons. The DLSAs and the Board of Visitors shall submit a joint report of their inspection to the SLSAs, which shall compile a common report and forward it to NALSA, which shall in turn file a joint status report before this Court in the above-mentioned suo motu writ petition; and
8. The Union government was directed to circulate a copy of this judgment to the Chief Secretaries of all States and Union territories within a period of three weeks from the date of delivery of this judgment.

Conclusion

The Court used the rich, available jurisprudence to negate the impugned rules on all counts of Articles 14, 17, 21 and 23. However, the Court did not provide any reasoning as to why the deletion of column of caste in jail register is being ordered. While it is a relevant direction which would have the result of superintendents or any jail officer having no information about a prisoner’s caste for them to be able to discriminate, there is a threat of this rule being used to render invisible the incarceration of the marginalised communities.

According the 2022 Prison Statistics, compiled by the National Crime Records Bureau(NCRB) from States and UTs, 2 in 3 undertrial prisoners belong to the oppressed caste groups of SC, ST and OBC communities. This has been a trend, according to a study by Indiaspend, and the share has remained over 60% for 25 years since 1998.  It is unclear if states and UTs collect the caste data from the registers and if they do so, deletion of caste column would erase the future data points on prison populations. It is not to say that the benefit of these data points supersedes the chance of potential discrimination in prisons due to caste column.  Notably, even with the deletion of caste column, jail officers could know the caste by simply asking the prisoners. The judgement while being progressive and extensively explanatory for the most part, misses this discussion.

Prisons, as Foucault argued, are where the state’s power is most visibly and viscerally exercised. They’re not just places of confinement—they are arenas where the state’s authority shapes lives, controlling bodies and behaviour. One would assume that such a concentrated expression of power would automatically impose the state’s ideals, erasing societal divisions like caste. After all, in a prison, nothing usually runs in prison except the sheer power of the state and its control over those it holds. Yet, in India, that same power has allowed caste-based segregation and discrimination to persist within prison walls, reflecting the societal inequalities that should have no place in such a controlled environment.

This raises a fundamental question: if the Indian state, with all its authority in prisons, cannot rid its most controlled spaces of caste prejudice—even in its two policies of Model Prisons Manual, 2016 and the Model Prisons and Correctional Services Act, 2023—how can we expect it to challenge these same divisions in the open society, where its influence is far more diffuse? If state power is supposed to be strongest in prison and yet fails to enforce the principle of equality, what does that say about its ability—or willingness—to confront caste-based discrimination beyond those walls?

The judgement may be read here

(The author is part of the legal research team of the organisation)

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The post ‘End discriminatory regimes of colonial era,’ SC declares provisions of State Prison Manuals unconstitutional appeared first on SabrangIndia.

Stating that the State government has this way initiated the process of killing the institution of the internationally renowned Sampurnanand Open Air Camp (Jail), it demanded restoration of land back to the open camp now.

The PUCL is shocked at the allotment of 2.2 hectares (21,948 sq metres) of land of the 3.04 hectares  (30,400 sq metres) of the Sampurnanand Open Air Camp (Jail) In Sanganer, Jaipur to the Medical and health department for a Satellite Hospital. This act of the Jaipur Development Authority (JDA), which acquired it brazenly and the Government of Rajasthan (GoR) is a scandal. Of the 3.04 hectares, the open camp (jail) has now been reduced to approx 0.84 hectares (8452 sq metres), with more than two thirds of its land being snatched away.  This would take away, not only most of the houses, which the inmates have made themselves, but also the school, the anganwadi, the quarters, the office, the hall and other physical resources developed.

It is not the case of the PUCL to stop a public hospital from coming up in Sanganer. We are in full empathy of the trials and tribulations of the people of Sanganer, with a paucity of public health institutions in the area. The point is that the hospital must not be made by snatching the land of the open camp (prison).

On 10 December 2023, the PUCL had done some work in the open camp; there were 423 inmates, 400 males and 23 females. The total number of residents in the open camp (jail) on that day consisted of 633 people, which included the family members. This number changes. For instance, as of today 31st August, 2024 the total number of prisoners are 393, as several are out on parole. More than 200 have families and the total strength with families is 900 approximately presently (sometimes, complete families come and stay, otherwise, only a section comes, many times, the prisoner leads a lonely life with no family. In December, there were many single men and women).

Vulnerability of the open air camp prisoners emboldened the state’s land grab attitude

According to the PUCL, the land which the open air camp (jail) has in its possession for the last six decades, was taken away so easily, because the larger perception perhaps of the GoR is that prisoners don’t need so much space, they can be cramped in a small spaces and live in subhuman conditions. Most importantly they knew that the inmates would not raise their voice against  the State, as they would not wish to lose their freedom of being in an open camp (jail) and living with their families. The State took advantage of this vulnerability of the prisoners.

Killing India’s best open camp for prisoners

This act of grabbing the land of the open air camp (jail) in possession of the Jail Institution since 1963, is an attempt to kill India’s best open camp (jail) institution for which it has been lauded in the state, nationally and Internationally. Of the total of the 51 open air camps in Rajasthan which has a capacity for housing 1600 prisoners, the occupancy is only 1339 (84% of the total capacity).

Even the SC in the case of Suhas Chakma vs the Union of India and others, had asked the State of Rajasthan to make a presentation of its open camp (jail)s as a best practice case study for the other states to learn from. It was the time to strengthen the infrastructure of the open camp (jail), including housing, water, sanitation, electricity, the school and anganwadi. Reports in the past have, including those of PAARr and the PUCL have highlighted this dimension, instead, the GOR has indulged in an attack on the open air camp (jail) itself. It should be known that the residents, themselves, make houses, invest in its maintenance, pay electricity and water charges. Would the Government compensate for all this?,

Attack on the idea of restorative justice

Essentially the attack on the open air camp (jail) is actually an attack on the idea of restorative justice and correctional spaces. The idea was to provide a community space for the open camp (jail) inmates. Not merely some house structures, which it will get reduced to now. It was also open to outsiders, for instance children from the neighbouring colonies came to play football and other games in the open space of the open camp (jail), naturally integrating the children of the prisoners and the prisoners themselves with the outside children and adults.

Apart from the above various orders of the Supreme court and the Rajasthan High Court, Jaipur Bench, should have restrained them for this brazen act.

GoR commits contempt of the Supreme  Court of India order 

The Supreme court of India, in the Civil Writ Petition(s) No. 1082/2020 Suhas Chakma Versus Union Of India & Ors. on the 17th of May, 2024, the bench of Hon’ble Mr. Justice B.R. Gavai Hon’ble Mr. Justice Sandeep Mehta, stated in their order clearly in point number “9,….. We are also informed that there is a proposal to reduce the area at Sanganer Open Air Camp at Jaipur. We thus direct that there shall be no attempt of reduction in area of open 4 air camps/institutions/prisons, wherever they are functioning”.

Ignores Rajasthan High Court order

In D.B. Civil Writ Petition No. 2808/2012,  Civil Writ Petition No. 5463/2015, D.B. Civil Writ Petition No. 17462/2017, Suo Motu —-Petitioner Versus State Of Raj, the Hon’ble Mr. Justice Inderjeet Singh And Hon’ble Mr. Justice Bhuwan Goyal in their Order dated 23/07/2024 stated in their interim order that “…..Learned Advocate General seeks eight weeks’ time to submit the status report and asked for the matter to be listed on 25.09.2024. Despite the Rajasthan High Court having been seized of the matter and the amicus curiae, having placed the SC order of 17th May, which the AG very well knew off, it is shocking that on the 30th of July, land was allotted by the JDA to the Medical and Health department.

Allotment letter of the JDA to the Medical and Health Department: A clear violation of the SC order 

The amended allotment letter dated, 30/07/2024, क्रमांक /ज. वि. प्रा / उपा. /ज़ोन – 4 / 2024  / डी -1385 addressed to Director Public Health, Medical and Health Services, Rajasthan says that “The 194th meeting of the Land and Property Disposal Committee of Jaipur Development Authority held on 22.07.2024, discussed the agenda presented by the Zonal Deputy Commissioner regarding the free allocation of 21,948 square meters of land from a total of 3.04 hectares, covering Khasra numbers 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 68, 69, 70, 71, 72, 73, 74, 75, 76, 78, and 131 in Revenue Village Sanganer to set up a satellite hospital in Sanganer. The land was previously recorded in the name of the Refugee Camp but has now been transferred to the name of Jaipur Development Authority by the Tehsildar, Sanganer.

The committee deliberated on the matter and recommended the free allocation to the State Government as per the Land Allocation Policy 2015 provisions, considering the excess area under JDA’s jurisdiction. The committee also resolved that the State Government’s approval and allocation should consider the previous allocations made by the Jaipur Development Authority. Following this, the State Government, through the Urban Development Department’s Deputy  Secretary, issued a letter with reference number 9274934 dated 26.07.2024, approving the free allocation of 21,948 square meters of land from the specified Khasra numbers in Sanganer, subject to the complete adherence to the provisions of the Land Allocation Policy-2015 at the authority level”.

With this allotment of the open camp land to the Medical and health department the Government of Rajasthan has clearly committed contempt of court. The PUCL and other organisations will either assist the Amicus Curiae or as an intervenor, will challenge this in both in the HC and the Supreme court, but will not let this continue.

The PUCL demands that the land be restored to the open camp now, the hospital be made elsewhere.

*Kavita Srivastava, President; Bhanwar Meghwanshi, President, Rajasthan and the jail work team members; Pragnya Joshi, National Council member; Suman Devathiya, Jaipur district General Secretary; Advocate Mamta Nair, Jaipur District Treasurer; Advocate Bobby Datta, Jaipur district, member, PUCL

Courtesy: CounterView

The post ‘Does Rajasthan govt believe prisoners should live in subhuman conditions?’ appeared first on SabrangIndia.

On April 23, while hearing the plea for prison reforms (W.P.(C) No. 406/2013), the Supreme Court bench of Justices Hima Kohli and Ahsanuddin Amanullah castigated the States for not providing proper details in their affidavits about the conditions of prisons, and neglecting the court directives to carry out prison reforms in district and central jails based on the recommendations of District Committees setup by the court through its order on January 30, 2024. It also expressed displeasure over the States’ lackadaisical approach for not treating the matter seriously, and for failing to provide necessary information about the steps taken to improve prison infrastructure and living standards in jails.

The court gave couple of weeks’ time to the Chief Secretaries of the concerned States/UTs to file the affidavits, “emphasizing that the affidavits shall mention the manner in which recommendations given by the respective Committees are proposed to be implemented and the timelines for such implementation”, LiveLaw reported.

Notably, in its January order the bench had directed the States/UTs to create District Committees comprising District Judge, District Magistrate, Superintendent of Police, Secretary of District Legal Services Authority, and Superintendent of Jail, to study the conditions of prisons at a district level and send their recommendations to States for improving living conditions of prisoners, including creation of new prisons to reduce overcrowding, and ensuring proper sanitation, hygiene, food, health, education, and other services in the prisons.

In one of its earlier judgements in the same case, in February 2016, the bench of Justices Madan Lokur and R.K. Agrawal had asked States to strictly implement Model Prison Code 2016, and cautioned that it “needs to be implemented with due seriousness and dispatch” so that it is not “reduced to yet another document that might be reviewed only decades later, if at all”. In the same judgement, the bench had also taken note of the plight of undertrial prisoners and had urged the States to see to it that poor undertrial prisoner who have secured bail do not languish in jails due to their poor economic status or inability to pay bail money. Emphasising on the need to improve prison conditions, the bench directed in its judgement that “The Director General of Police/Inspector General of Police in-charge of prisons should ensure that there is proper and effective utilization of available funds so that the living conditions of the prisoners is commensurate with human dignity. This also includes the issue of their health, hygiene, food, clothing, rehabilitation etc.” The bench then had relied on landmark judgements like Sunil Batra ((1978) 4 SCC 494), Sunil Batra (II) v. Delhi Administration ((1980) 3 SCC 488), Rama Murthy v. State of Karnataka ((1997) 2 SCC 642), and T. K. Gopal v. State of Karnataka ((2000) 6 SCC 168) to argue in favour of humanitarian prison reforms.

Rama Murthy judgement specifically lists down 9 areas of immediate concern, which includes:

1. Over-crowding
2. Delay in trial
3. Torture and ill-treatment
4. Neglect of health and hygiene
5. Insubstantial food and inadequate clothing
6. Prison vices
7. Deficiency in communication
8. Streamlining of jail visits
9. Management of open-air prisons

Background on Prison Reforms

Since the establishment of modern prison in India by TB Macaulay in 1935, there has been numerous attempts by governments, both pre-independence and post-independence, to change the living conditions in prisons. Post-independence, Pakwasa Committee in 1949 suggested that prisoners can be used as labour for road work without any intensive supervision over them. It was from this time onwards that a system of wages for prisoners for their labour was introduced, and subsequently, certain liberal provisions were also introduced in jails manuals by which well-behaved inmates were rewarded with remission in their sentence, as per the report prepared by the Lok Sabha Secretariat on prison reforms.

The Government of India appointed the All-India Jail Manual Committee in 1957 to prepare a model prison manual following the recommendations of Dr. W.C. Reckless regarding prison reform in India, the latter being the United Nations expert on correctional work. The aforementioned committee prepared the Model Prison Manual in 1960, which became the basis for the Central Government to appoint a working group on prisons in 1972, which recommended classification of prisoners and their treatment based on certain principles.

In 1980 the Government of India set-up a Committee on Jail Reforms under the Chairmanship of Justice A. N. Mulla, which submitted its report in 1983 recommending the following measures:

• Improving prison condition by making available proper food, clothing, and sanitation.
• The prison staff to be properly trained and organized into different cadres, with the setting up an All-India Service called the Indian Prisons & Correctional Service.
• After-care, rehabilitation and probation to be an integral part of prison service.
• The press and public to be allowed inside prisons and allied correctional institutions periodically, so that the public may have first-hand information about the conditions of prisons and be willing to co-operate in rehabilitation work.
• Undertrials in jails to be reduced to bare minimum and they be kept away from convicts. Furthermore, the number of undertrials to be reduced by speedy trial and liberalization of bail provisions.
• The Government may make an effort to provide adequate financial resources.

Shortly afterwards in 1987, Justice Krishna Iyer Committee, setup to study the conditions of women prisoners, recommended induction of more women into the police force in view of their special role in tackling women and child offenders.

Following the Supreme Court direction in Rama Murthy (mentioned above) to prepare uniform prison laws across the country, a draft Model Prison Management Bill (The Prison Administration and Treatment of Prisoners Bill, 1998) was circulated among the States, but pertinently, the Bill was never finalised. Since then, two Model Prison Manual(s) have already come out, one in 2003, and the latest one in 2016.

In 2021, Rajya Sabha MP K.C. Ramamurthy requested the Minister of Home Affairs to provide details about the salient features of 2016 Model Prison Manual, its implementation by the States, and how the Government intends to ensure the implementation of Nelson Mandela Rules in prisons.

Responding to his query, Minister of State for Home Affairs (MoS), G. Kisan Reddy, stated the following in response to highlight the salient features of Model Prison Manual 2016:

• It brings in basic uniformity in laws, rules and regulations governing the administration of prisons and the management of prisoners all over the country
• Lays down the framework for both sound custody and treatment of prisoners
• Spells out minimum standards of institutional services for the care, protection, treatment, education, training and re-socialisation of incarcerated offenders
• Evolving procedures for the protection of human rights of prisoners within the limitations imposed by the process of incarceration
• Individualises institutional treatment of prisoners in keeping with their personal characteristics, behavioural patterns and correctional requirements
• Forging constructive linkages between prison programmes and community- based welfare institutions in achieving the objective of the reformation and rehabilitation of prisoners
• Access to free legal services: legal aid clinics, jail visiting advocates, constitution of under-trial review committees
• Provisions for women prisoners including safeguards, protections, special programmes, counselling, focussed after-care and rehabilitation, as well as provisions for children of women prisoners
• Legal aid to prisoners sentenced to death, mental health evaluation, procedures and channels for mercy petition
• Prison Modernisation: Use of technology/software including Personnel Information System, installation of CCTVs etc. to prevent violation of Human Rights

While commenting on the conformity to the Nelson Mandela Rules, MoS for Ministry of Home Affairs suggested that States are ultimately responsible for their implementation, and the Union Government has already sent the respective Rules to the States, asking them to implement the same. The response also noted that the Union has advised the States to have these rules (Nelson Mandela Rules) “translated in local language and disseminate the guidance contained therein to all prison officials to ensure that these rules are followed by the officials concerned in dealing with prison inmates.”

CJP’s endeavour towards bringing police accountability and prison reforms

CJP has in the past reported about the incidents affecting right to liberty of the citizens (Article 21) due to police accesses and has also advocated for the police reforms. In the case of Pankaj Kumar Sharma v Govt of NCT of Delhi & Ors, CJP reported how the Delhi High Court came down heavily on the Delhi Police personnel responsible for illegally detaining the citizen (Pankaj Kumar Sharma) and issued a compensation of 50,000 rupees from the salaries of the two police officials responsible for the misconduct, namely, (Sub-Inspectors) Rajeev Gautam and Shamim Khan. In the judgement delivered by Justice Subramonium Prasad, the court noted that “The time spent in the lock-up by the petitioner, even for a short while, cannot absolve the police officers who have deprived the petitioners of his liberty without following the due procedure established by law… This Court is of the opinion that a meaningful message must be sent to the authorities that police officers cannot be law unto themselves”.

In the aforementioned case, the court relied on number of important judicial precedents, including D K Basu v. State of West Bengal, in which the apex court had released guidelines to be followed by the police while arresting or detaining a concerned citizen.

The DK Basu guidelines among other things require the police to ensure the following:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register
2. That the police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names land particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

In addition, the judgement also relied on Nilabati Behera (1993 AIR 1960) to provide compensation to the victim of illegal act of detention carried out by the police. Importantly, in Nilabati Behera the court had noted that “citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction.”

Similarly, CJP continued to raise awareness about the Police Complaints Authorities (PCA) in Maharashtra, for which a user guide was initially released by the Commonwealth Human Rights Initiative (CHRI). PCAs were established in Maharashtra in 2014 at the state level (1) and divisional level (6) to register complaints or grievances against police personnel for serious misconduct, corruption, or abuse of authority.

PCAs have wide ambit of power to perform the following functions:

1. Conduct suo moto inquiries or through complaints against Police Officers, hear all concerned persons, receive evidence, and give recommendations to be implemented by the police department and the state government
2. Advise the state government to ensure the protection of witnesses, victims and their families who face, or may face, threats or harassment for filing a complaint against the police
3. Visit any police station, lock-up or other place of detention used by the police (with written authorisation from the Chairperson).
4. Receive complaints involving death in police custody, grievous hurt under Section 320 of the IPC, rape or attempt to commit rape, arrest or detention without following procedure, corruption, extortion, land or house grabbing and any other serious violation of law or abuse of authority

In 2018, CJP once again raised its voice against the growing misuse of police across the country to supress peaceful protests by the citizens. It moved the National Human Rights Commission (NHRC) demanding guidelines on how the police should behave with peaceful protestors in order to protect citizens’ right to peaceful protest under Article 19 of the Constitution.

CJP-PUCL manifesto on prison reforms and police accountability

Before the election to Lok Sabha 2024 took off, CJP and PUCL jointly released their manifesto, which among other things also deal with the long pending issue of prison reforms, especially with regard to the rights of undertrial prisoners. The following demands have been raised in our manifesto:

1. Follow and implement relevant judgments of the Supreme Court on under trials and ensure prison reforms in accordance with the Model Manual for Prison Reform, 2016.
2. Order the immediate release of under trials who have already served half their maximum sentence.
3. Ensure regular monitoring of prison conditions, particularly in relation to women and children through the implementation of district and other monitoring committees as per the Model Manual Prison Reform, 2016.
4. Ensure adequate sanitation and health facilities, and emphasise cleanliness and adequate food and clean water; access to work, reading and writing materials in all prisons.
5. Ensure efficient, regular and quality legal aid to all under trials and other prisoners.
6. Ensure the emoluments to the prison employment staff (including services of convicted prisoners utilised by the state) meet the standards of the updated standards in the Minimum Wages Act, 1948.
7. Ensure training and sensitisation of all Jail/Prison staff in national and international human rights standards to ensure just and humane conditions within prisons.
8. Explore the shift to an Open Prison System for less stringent crimes.
9. Allow human rights defenders (HRDs) full and free access to police stations, prisoners, etc.
10. Abolition of capital punishment and all forms of torture.
11. Ratification of the United Nations Convention Against Torture (UNCAT), effecting of changes in domestic legislation to ensure compliance with the provisions of UNCAT and introduction of domestic law against torture and ill-treatment in line with the provisions of UNCAT.
12. Ensure the strictest adherence to the rule of law and immediately put a stop to all forms of torture by the police, custodial killings, extra judicial / encounter killings etc.
13. Remove requirement for sanction to prosecute police officers, military personnel and public officials from all laws and take strictest action against erring officers.
14. Strengthen the law already enacted for the protection of whistle blowers.
15. Full implementation of police reform provisions in line with not just the Supreme Court judgement in the Prakash Singh case, but also the recommendations made by the National Police Commission Reports.
16. Ensure the establishment of Independent Directorates of Prosecutions that are monitored by the higher judiciary and are independent of the executive arm of the government.

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The post SC asks States to improve prison conditions, address the issue of overcrowding in prisons in its latest rebuke to States for not following its previous directives effectively appeared first on SabrangIndia.

It is essential to note that a writ petition was moved to the High Court of Karnataka on the said matter. The petitioner had sought parole for his daughter’s wedding on September 3, 2023. He had highlighted that Fyzee on ‘Outlines of Muhammadan Law’, Fourth Edition at page 93 suggests that the presence of father in the performance of Nikah of his daughter is desirable.

Through the said order, the bench upheld the reformative approach of punishment that the criminal justice system of India deems to follow. In its order, the court observed that although sporadically, a convict has to keep in contact with the civil society so that their societal roots do not dry up as they languish in the jail for long periods. In the order, it was stated: “In matters like this humanistic approach needs to be adopted qua the convicts; a convict has to keep in contact with the civil society although sporadically, so that his societal roots, do not dry up when he languishes in the jail; otherwise, when he returns from the prison after completing the term of sentence, he may be a total stranger and life may prove hard to him; this is not a happy thing to happen in a Welfare State.” (Para 3)

The court also provided that “ordinarily every Muslim Marriage involves certain rituals that are done with the participation of the parents.” Through the order, the bench also remarked on the importance of presence of parents on a day as important as a wedding. The order stated “When a young daughter is getting married, the presence of her father is desirable, consistent with the humanitarian considerations which inhere in Article 21 of the Constitution of India.” (Para 3)

The court further opined that conviction and imprisonment “does not render the convict destitute of all liberty & dignity; in matters like this humanistic approach needs to be adopted qua the convicts.”

Thus, the Court directed the authorities to release Rehman on furlough, subject to usual precautions, for a period of seven days commencing from September 2. The bench also stressed that “The main purpose of releasing a serving convict on parole is to afford him an opportunity to solve his personal & family problems and to enable him to maintain his links with the civil society, there may be cases of health grounds too.”

Accordingly, the writ petition was disposed of by the court.

The order can be read here:

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Bail order cannot be cryptic and casual, needs to be backed by reasons considering vital aspects: Supreme Court

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The post Karnataka HC: ‘Humanistic approach to be adopted to ensure that convicts maintain connection with civil society’ appeared first on SabrangIndia.

A petition was filed by the deceased victim’s wife[1], Babita praying for an investigation into her husband’s death by the CBI as well as compensation for herself and her children to the tune of Rs. 10 lakhs.

According to Babita Devi’s advocate Shadab Ansari, Umesh Singh was arrested in June 2015 by Pawan Singh, the munshi of the Ghanudih police outpost, at the command of Harinarayan Ram, the officer-in-charge of the Ghanudih Outpost under the Tisra police station in the Jharia block of the Dhanbad district.

Umesh Singh was charged in a case involving protests over the frequent mine blasting that had damaged his home and other structures nearby. The court was informed that Umesh Singh’s body was found nearby Ghanuadih Joria after his family frantically sought him out when he failed to return home the following morning. His body had sustained severe injuries, and he was just wearing underpants, the court was informed. It was also claimed that, as the family confirmed in a video recording, the deceased’s shirt was discovered in the lockup of the police station. Obviously, it appears that this was a case of custodial torture.

At the Jharia police station, Babita Devi filed a FIR against Harinarayan Ram, Pawan Singh, Satendra Kumar, and unnamed police officers; however, the court was informed that the investigating officer failed to record the petitioners’ testimony for more than a year and a half.

Justice delayed is justice denied?

The court in the judgement, acknowledged that fatalities in custody constitute a breach of human rights. It acknowledged that the deceased’s passing away while under the custody of the police constituted a custodial death. This implies that the deceased’s death was caused by the police’s conduct or negligence, which violates his or her right to life, liberty, and the pursuit of happiness.

The Chief Judicial Magistrate’s (CJM) judicial investigation and its conclusions were taken into account by the court. According to the CJM’s inquiry report, the deceased was discovered dead while under police custody, substantiating the accusation of a death in custody. This report was performed by a judicial body and included evidence to support the claims, thus the court gave it considerable weight.

The court also recognised the significance of awarding damages in situations involving custodial deaths. It made reference to a plan outlining the process for allocating compensation in such circumstances. The court emphasised that compensation becomes necessary in proceedings under Article 226 of the Constitution when basic rights are violated. This demonstrates the court’s dedication to making sure the victims or their families receive fair compensation for having their rights violated. The court therefore, awarded the family of the victim 5,00,000 rupees.

The court ensured through its judgement that the situation qualifies for a public remedy. This refers to circumstances where the court utilizes its power under Article 226 of the Constitution to grant appropriate remedies in situations that affect the public more broadly. The court asserted its jurisdiction and authority to pass orders that address the violation of human rights, grant compensation, and ensure accountability in the interest of justice.

The police officers accountable for the death in custody must now face departmental charges, per the court’s directive. Internal disciplinary actions taken by the police department to hold personnel accountable for their conduct or carelessness are known as departmental proceedings. The court emphasized the distinction and independence between criminal and disciplinary proceedings. According to the evidence and circumstances surrounding the custodial death, it was indicated that departmental processes should be started, and if proven guilty, action should be taken against the errant officials. Unfortunately, as is want in such cases, no criminal charges for loss of life have been directed by the High Court.

If the errant police officials are proven guilty, the court permitted the State to reclaim the awarded compensation amount from them. This implies that the State has the power to collect the compensation sum from the police officials if the departmental or criminal processes show their liability. This clause makes sure that individuals accountable for the custodial death bear the financial burden of compensation rather than the State or taxpayers.

Human rights recognition and protection are at the centre of this lawsuit. The intrinsic rights of every person to life, liberty, and dignity are unquestionably recognised by the court. It emphasises how gravely these fundamental rights are violated when people die while they are being held captive. The case draws attention to this problem and highlights the pressing need to protect human rights, especially in the context of interactions between law enforcement and people in detention.

The court’s order to begin departmental procedures against the police officers accountable for the prisoner’s death is a crucial element of this case. This emphasises the urgent requirement to make law enforcement personnel responsible for their acts. By doing this, the court emphasises the idea that no one is above the law, regardless of their status. This ruling sends a strong message that misbehaviour or negligence that results in custodial deaths won’t be allowed and that those accountable must suffer the necessary repercussions.

The pursuit of justice and the defence of human rights continue to be hampered by the distressing reality of custodial deaths, which occurs throughout societies all over the world. Even if the case in question is a recent one, it is important to recognise the vast number of other, very similar cases that have troubled the Indian court system. These examples draw attention to the protracted delays in delivering justice, which cause the relatives of the deceased great damage.

The grief endured by the families left behind is made worse by how long it takes to resolve cases of custodial death. Their anguish is exacerbated, their grief is extended, and their trust in the judicial system is damaged by the drawn-out legal proceedings. It is impossible to emphasise the emotional, psychological, and financial toll that these families have experienced. As time stretches on, their struggle for closure and accountability becomes an enduring battle. 

Other recent custodial death cases

According to data from the National Human Rights Commission (NHRC) and the Union Ministry of Home Affairs, Gujarat has topped the list of Indian states with the most number of custodial deaths during the past five years. According to the official data, Gujarat reported 80 incarceration fatalities during this time, with the numbers rising yearly. Only in 2021–2022 did the state record 24 deaths while in custody.[2]

According to information submitted in the Rajya Sabha by the Ministry of Home Affairs (MHA), there has been a nationwide increase in the number of deaths while under the custody of the police of over 60% over the past three years and 75% over the past two years.

The data also showed that in Maharashtra, the number of such cases increased by a startling ten times, in Kerala and Bihar, by three times, and in Gujarat, Uttar Pradesh, and Karnataka, by two times.[3]

The terrible deaths of a father and son duo while they were being held in jail in Tamil Nadu’s Tuticorin district outraged the country and attracted attention from around the world. The event started when J. Bennix, the proprietor of a small mobile phone store, received a warning from the police for keeping his store open past the curfew set in place because of the COVID-19 outbreak. Bennix allegedly got into a fight with the police, which resulted in the arrest and detention of his father P. Jayaraj.

According to eyewitnesses, Bennix was severely beaten by the police in front of his friends, who were present when the incident occurred. Both the father and the child were covered in blood due to the severity of the assault. According to family members, Bennix endured additional torture, including the insertion of a baton into his anus, which caused uncontrollable bleeding. Jayaraj received numerous shoe-toe kicks to the chest. They were hauled to a magistrate without receiving medical care despite their wounds. The pair was booked into a nearby sub-jail after being accused of several crimes under the Indian Penal Code. However, as their health declined, they were only sent to the hospital after it was already too late.[4]

Police nabbed two people by the names of Vignesh and Suresh on April 18, 2022, while conducting a vehicle check. They were found to be in possession of marijuana and liquor bottles by the police. Doctors declared Vignesh dead the following day, which led to questions regarding the circumstances of his passing. The police said that Vignesh had died due to a seizure, however on investigation it was found that he was mercilessly beaten to death. Six police officers implicated in the death in custody were detained after a comprehensive investigation.

The District Magistrate remanded the accused officials to judicial prison. They were accused of violating both the SC/ST Atrocities Act and Section 302 of the Indian Penal Code, which deals with murder. An autopsy report that revealed numerous injuries and fractures on the body of the 25-year-old victim served as the foundation for the police officials’ arrest. Numerous bruises, especially on the victim’s head, along with deep muscle injuries, swelling, contusions, and wounds on the arms were noted in the report.

This case emphasises the tragic custodial death incident and the subsequent steps taken to conduct an investigation and prosecute those involved. The degree of the victim’s injuries were determined by the autopsy report, which led to questions about police brutality and the demand for accountability in law enforcement. A step has been taken towards addressing the problem and ensuring the victim receives justice with the arrest and charge of the involved police officers.[5]

The list of these cases just go on and on. The NHRC’s figures show a worrying trend of rising deaths while in custody. This information is concerning because Article 21 of the Indian Constitution guarantees everyone the fundamental right to life. The severity of the problem is increased when a law enforcement agency neglects its responsibility to protect life. According to the NCRB’s 2018 prison report, 149 deaths in custody were ascribed to non-natural causes, and some deaths were classified as unknown as a result of insufficient reporting from some states. Suicides made up a sizable fraction of these fatalities, raising concerns regarding whether the prisoners were forced to commit suicide or did so voluntarily to escape additional abuse and torture.

Prisoners’ psychological health is frequently ignored, and there is insufficient psychiatric treatment available to help them deal with the stress and trauma they experience. The poor circumstances inside prisons only make the problem worse. The medical care provided to convicts falls short of acceptable standards, and violent confrontations between prisoners occur often and frequently result in death. Inmates’ physical suffering exacerbates their emotional suffering, which has a detrimental effect on their wellbeing. To defend the fundamental human right to life, state authorities should make sure that these necessities are met.

A person who has been detained shall only be subjected to a reasonable degree of force and should not be restrained longer than is necessary to prevent escape, according to Section 49 of the Code of Criminal Procedure. However, police officers routinely violate these standards and use excessive force. Since the police are frequently in charge of the investigation in situations involving custodial deaths, they have the potential to tamper with the evidence and cover up such incidents on paper.

The absence of systemic accountability and transparency is one of the main causes of police brutality and deaths in custody. Due to a lack of adequate systems for investigation, monitoring, and holding the accountable, instances of police misconduct and abuse frequently go unreported and unpunished. Such occurrences are continually occurring because of a culture of impunity fueled by ineffective oversight and poor application of the laws that are in place.

The employment of coercive techniques during interrogations is another element. Sometimes, the police violate the rights of the accused and the norms of due process by using torture and other unlawful approaches to coerce information or confessions. In addition to violating human rights, this compromises the fairness of the criminal justice system. Article 20(3) states that no one may be forced to testify against themselves. It is an extremely important law since it prevents the accused from confessing when they are forced or tortured into doing so. Police are allowed to question suspects under Section 161 of the Code of Criminal Procedure, but if they employ pressure to extract information from a suspect during an investigation, it is considered compelled testimony. Forced testimony is not taken into consideration since it violates Article 20(3).

Article 21 is the fundamental right to life enshrined upon us by the Constitution of India, the situation of the prisons and police brutality is taking away this fundamental right and then awarding petty amounts in the form of compensation, more than half of these custodial deaths are not even reported as they are committed by law enforcement officials, this gives them an easy way out, as they can tamper with the evidence.

The rise in custodial deaths can be partly ascribed to the lack of strict punishments meted out to those involved in the past and the absence of well-defined precedents. To maintain accountability and stop law enforcement officials from abusing their authority, a clear precedent must be set.

What the constitutional courts of India have to say about Custodial deaths and compensation in such cases-

In the landmark case of DK Basu v. Union of India[6] it was held that the custodial death of a person breaches their fundamental rights and is unlawful. When a right is protected by the State, recourse must be sought against the State if the constitutional requirement established has not been met. According to legal interpretations, Article 21 ensures the right to life, personal liberty, and the ability to live in dignity. As a result, it also contains a protection against abuse by the State or its agents, such as torture.

Article 22 guarantees protection from arrest and detention. It states that no one who has been arrested may be held in jail without knowing the reason(s) for their arrest and that they are not to be denied the opportunity to speak with and be represented by a lawyer of their choosing. Article 20 (3) provides that a person accused of an offence shall not be compelled to be a witness against himself or herself. The guidelines issued by the court were as follows-

1. Police personnel must wear visible identification and maintain a register of personnel involved in the arrest and interrogation process.
2. A memorandum of arrest should be prepared at the time of arrest, witnessed by a family member or respectable person, and signed by the detainee, including the time and date of the arrest.
3. The arrested person has the right to inform a friend, relative, or someone interested in their well-being about the arrest.
4. The police must notify the detainee’s next friend or relative outside the district or city about the time, place of detention, and custody.
5. The arrested person must be informed of their right to have someone notified about their arrest or detention.
6. The arrest details, including the name of the informed next friend and custody details, must be recorded in the Case Diary at the place of detention.
7. A medical examination should be conducted at the time of arrest, recording any injuries, and an inspection memo must be signed by both the detainee and arresting officer.
8. The detainee must undergo a medical examination every 48 hours by a trained physician.
9. Copies of all relevant documents, including the arrest memo, must be sent to the Magistrate for registration.
10. The detainee may be allowed to meet their attorney during the interrogation but not throughout.
11. Police Control Rooms should be established for communication of arrest and custody information within 12 hours after the arrest.

The court also acknowledged that there is a need for compensation when someone’s fundamental rights have been violated.

Every time a person is injured and hurt, the law mandates that they have a way to seek redress in accordance with the idea of Ubi jus, ibi remedium, which translates to there is no wrong without a remedy. A mere declaration of invalidity or acknowledgement of custodial brutality or death is insufficient to offer a meaningful remedy when someone’s fundamental right to life has been violated. There must be other actions taken.

Although the Indian Constitution does not specifically mention compensation for violations of the fundamental right to life, the Supreme Court has established the right to compensation through its judicial rulings. This indicates that the court has acknowledged that the injured person is entitled to receive compensation as a kind of remedy in situations where there is a proven unconstitutional impairment of personal liberty or life.

In the case of Munshi Singh Gautam v. State of M.P[7] the court recognised that torture carried out by law enforcement officers is a serious offence that threatens civilised society by undermining citizens’ basic rights and human dignity. It promotes the notion among police that they may avoid responsibility because there isn’t any concrete proof. Direct evidence of police involvement in incidents of police torture or deaths in custody is frequently lacking because police officers frequently choose to keep quiet or tell lies to shield their coworkers. When prosecuting agencies themselves are involved, the prosecution’s stringent adherence to the standard of proof beyond a reasonable doubt can occasionally result in a miscarriage of justice.

If action is not taken to solve this problem, the judiciary and the criminal justice system may become less trustworthy in the eyes of the general populace, which will erode trust in the system. Because there is generally little direct proof or documentation of the acts, conviction rates for crimes involving police atrocities are sometimes low.

The Law Commission has suggested changes to the Indian Evidence Act that would transfer the burden of proof in these situations to the police officers. To reduce custody crimes, assure responsibility, and provide victims justice, the executive branch, legislature, and courts must act decisively. To ensure the truth is revealed and those responsible are held accountable, courts handling custodial crime cases should use a pragmatic and considerate approach rather than a restricted technical one.

This ruling highlights the necessity of broad structural changes, a shift in mindset, and the pursuit of justice and the truth in situations of custodial offences.

In the case of Inhuman Conditions in 1382 Prisons, In re[8] it was held that-

1. Even if a person is found not guilty after a trial, they are still entitled to compensation if they were unlawfully held. Compensation can be ordered to be given to the missing person’s relatives in circumstances of disappearances while they are in jail.
2. The right to compensation has been developed by the courts in situations of unconstitutional impairment of life or personal liberty, notwithstanding the Constitution’s lack of an explicit provision for it.
3. The State is held vicariously accountable for public employees’ violations of the fundamental right to life, and monetary compensation is a reasonable and practical remedy.
4. Sovereign immunity is not an acceptable defence, and the strict liability principle is in effect. The State is obligated to make the payment and may pursue restitution against the perpetrator.
5. The precise facts of each case will determine the amount of compensation given. The amount of compensation isn’t determined by a set formula.
6. Traditional remedies are not replaced by the relief granted by the court to address the violation of fundamental rights; rather, it supplements them. Any damages granted in a civil lawsuit may be offset against the compensation determined by the court and paid by the State.

However, in the same case the court has recognised that Custodial death is seen as a crime, therefore providing financial relief to the deceased person’s heirs is not the sole suitable relief.

There is a requirement for a sympathetic review of every prison. Violence against prisoners is a serious issue in civilised societies. Custodial violence in any form is repugnant and is condemned by all facets of society. People in positions of power need to be especially sensitive to those who are being held in captivity. Even though the results may have been inconsistent, the constitutional courts have constantly highlighted this issue.

The case of Prabhavathiamma v. the State of Kerala and others [9] involved the passing away of a scrap metal worker who was being held in detention in Thiruvananthapuram. The CBI Court subsequently gave the two accused service personnel the death penalty after a decade-long trial in the case. Justice Nazar stated that the police officers violently murdered the victim and damaged the police institution’s credibility.

The judge also ruled that pardoning such severe crimes was not an option since doing so would undermine public safety and encourage police to utilise their authority in arbitrary ways. Death sentences are a type of punishment that are rarely given, however in this case, the Bench made its decision based on the seriousness of the offence committed.

In conclusion, the issue of custodial deaths in India is a serious human rights violation and a cause for grave concern. The examples discussed here focus light on the terrible reality of custodial deaths and the pressing need for institutional reforms, justice, and accountability.

Custodial deaths are have been recognised by India’s constitutional courts as being illegal and a violation of fundamental rights. As a remedy to redress these transgressions, they have emphasised the significance of providing compensation to victims or their relatives. In order to prevent police brutality and guarantee the protection of those in detention, the courts have also emphasised the need for structural improvements, improved oversight, and a mental shift.

These decisions highlight the value of in-depth investigations, departmental actions against erring police officers, and a strong precedence to prevent such tragedies. Even in the absence of a specific constitutional provision, the courts have emphasised the State’s vicarious accountability and need to pay damages.

Police wrongdoing and the rising incidence of deaths while in custody call for immediate reform. To prevent mistreatment and torture while in custody, adequate protections must be put in place, such as identification of police officers, accurate record-keeping, medical examinations, and communication with family members. A culture of impunity must be eradicated, and those responsible must receive severe punishment.

Systematic improvements, such as improved training for law enforcement authorities, increased transparency, and the development of independent supervision mechanisms, are required to truly guarantee the fundamental right to life and dignity. Building a criminal justice system that upholds the values of justice, accountability, and respect for human rights should be the objective.

In the end, the judicial, executive, and legislative departments of the government must work together to pursue justice in situations of custodial deaths. India can safeguard the protection of its citizens’ rights and restore faith in the legal system by cooperating to address this pressing issue.

All the judgements cited may be read here:

1. Babita Devi and Ors Versus The State of Jharkhand
2. Dilip K. Basu v. State of W.B., (1997) 6 SCC 642
3. Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631
4. Inhuman Conditions in 1382 Prisons, In re, (2017) 10 SCC 658
5. J. Prabhavathiamma v. the State of Kerala and others, 2008 Cri LJ 455

(The author is an intern with Citizen for Justice and Peace, cjp.org.in)

[1] Babita Devi and Ors Versus The State of Jharkhand through Principal Secretary, Home Department, Govt. of Jharkhand, Ranchi and Ors, W.P.(Cr.) No. 48 of 2017

[2] https://sabrangindia.in/article/custodial-deaths-highest-gujarat-over-5-years-jails-overcrowded/

[3] https://thewire.in/rights/india-custodial-deaths-data-rajya-sabha-2023

[4] https://thewire.in/rights/jayaraj-bennix-custodial-deaths-impunity

[5] https://www.indiatoday.in/india/story/vignesh-custodial-death-cb-cid-arrests-2-cops-murder-charges-1946505-2022-05-07

[6] Dilip K. Basu v. State of W.B., (1997) 6 SCC 642

[7] Munshi Singh Gautam v. State of M.P., (2005) 9 SCC 631

[8] Inhuman Conditions in 1382 Prisons, In re, (2017) 10 SCC 658

[9] J. Prabhavathiamma v. the State of Kerala and others, 2008 Cri LJ 455

Related:

Custodial deaths highest in Gujarat over 5 years; jails overcrowded

Madras HC orders Judicial Magistrate to conduct inquiry into alleged custodial deaths in Tuticorin

UP: Maximum prison CCTVs, yet maximum custodial deaths?

Custodial torture victims are threatened, says People’s Watch: Tamil Nadu

Hyderabad: Muslim man allegedly subjected to custodial torture on “suspicion of theft” for 5 days, dies in hospital

The post Death behind bars: Justice through the Indian Courts as cases spiral appeared first on SabrangIndia.

“We have taken up a process for special remission of convicted persons who have completed 66 per cent of their jail term and maintained good conduct. This is being done following an instruction from the Ministry of Home Affairs (MHA) on the occasion of Azadi Ka Amrit Mahotsav,” Apurba Kumar Chakraborty, OSD to the department of prisons, told PTI.

Currently, there are 1,335 convicts in 14 jails in the state, which have a total capacity of 2,365. This means that the prisons are not overcrowded yet the state government went ahead with this move.

Tapash Roy, the secretary of the prisons under the Home (Jail) Department said during a Press Conference that 5 convicted prisoners are set to be released, reported India Today NE.

However, it is unclear whether there are any other conditions for releasing these prisoners or is it a blanket application on all prisoners irrespective of what they were convicted of, if they were serious offences, whether they would be treated any differently and whether they registered good behaviour.

As per The Prisoners (Release on Parole) Rules 1998, under Rule 4, one of the conditions for being released on parole is good behavior.

However, what the Tripura government has decided is to release the prisoners for good and not just on parole which amounts to suspension of their sentence or their remission. Under section 432 of CrPC  Central and state governments have powers to remit and suspend the sentence of a convict and under section 433 of CrPC, the governments can commute the sentence as well which can be done suo moto.

Under the Azadi Ka Amrit Mahotsav scheme, Maharashtra released 189 prisoners and Tamil Nadu released 60 prisoners in January, on the occasion of Republic Day. In March 2022, the Central government had decided to give special remission to certain category of prisoners which did not include those involved in serious crimes but included those who have consistently maintained good conduct during their term in prison. As per the Central government’s categories, those eligible for this special remission included:

>Women convicts of 50 years of age and above who have completed 50 per cent of their total sentence period (without counting the period of general remission earned).

>Transgender convicts of 50 years of age and above who have completed 50 per cent of their total sentence period (without counting the period of general remission earned).

>Male convicts of 60 years of age and above who have completed 50 per cent of their total sentence period (without counting the period of general remission earned).

>Physically challenged/disabled convicts with 70 per cent disability and more (duly certified by a medical board) who have completed 50 per cent of their total sentence period (without counting the period of general remission earned).

>Terminally ill convicts (duly certified by a medical board)

>Convicted prisoners who have completed two-third (66 per cent) of their total sentence period (without counting the period of general remission earned).

>Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine.

>Persons who committed an offence at a young age i.e. between 18 and 21 years and with no other criminal involvement/case against them, who have completed 50 per cent of their sentence period (without counting the period of general remission earned).

Related:

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Law Ministry data shows steady increase in release of Undertrial prisoners over 4 years

Directions issued by the SC to prevent Delay in Release of Prisoners

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Last year witnessed the highest number of Undertrial Review Committee (UTRC) meetings since 2019 while also recording a steady rise over the last 4 years. While responding to a query by Binoy Viswam (CPI), Law Minister Kiren Rijiju submitted considerable data before the Rajya Sabha on Thursday.

Viswam had asked the Law Ministry for details of meetings held by the Under Trial Review Committees years wise since 2019 as well as umber of Under Trial Prisoners (UTPs) released by UTRCs since 2019.

Before looking at the data it is pertinent to look at what is the role of UTRCs and what is their statutory mandate

What is UTRC?

UTRCs are a result of a Supreme Court mandate of 2015. In ‘In Re-Inhuman Conditions in 1382 Prisons’, Writ Petition (Civil) No. 406/2013’ the Supreme Court had, keeping in view overcrowind gof prisons and high number of undertrial prisoners directed National Legal Services Authority (NALSA), along with Ministry of Home Affairs and State Legal Services Authorities (SLSAs), to form UTRCs in every district. The Members of the UTRC are:

1. District and Sessions Judge /Seniormost judicial officer of the district– Chairperson

2. District Magistrate/Seniormost Administrative officer of the district- Member

3. Superintendent of Police /Senniro most police officer of the district -Member

4. Secretary, District Legal Services Authority/ Officer in-charge of providing Legal Aid in the district – Member

5. Superintendent of Prison/ Officer in-charge of Prisons situated in the district) – Member

What is the mandate of UTRC?

 As directed by the apex court in its order dated April 24, 2015, UTRCs are supposed to review the following categories of prisoners:

1. eligible under Section 436A of Cr.P.C.,

2. undertrials released on bail but unable to furnish security and

3. undertrials accused of compoundable offences.

Further, these categories were increased to 14 categories vide the court’s orders dated February 5, 2016 and May 6, 2016.

UTRC was mandated to meet every month as per Supreme Court’s order dated December 4, 2018 in ‘In Re Inhuman Conditions in 1382 Prisons’ from January 2019 to June 2019. This frequency was increased by the court in ‘In Re: Contagion of COVID 19 Virus in Prisons’, Suo Motu Writ Petition (Civil) No. 1/2020 and the UTRCs were to meet once a week to review the situation of prisoners. However, the NALSA Standard Operating Procedure mandates that the UTRC meets quarterly.

What is the review process like?

 The review process has been succinctly explained by CHRI in its handbook

Source: Commonwealth Human Rights Initiative

Law Ministry’s Data

The data submitted by the Law Ministry indicates a steady rise in the number of meetings held by the UTRC which can be partially credited to the continuous monitoring of the Supreme Court as well. While a total of 3,626 meetings were held in 2019, in 2022 10,321 meetings were held.

There has also been a rise in the number of UTPs released by the UTRCs. In 2019, 12,478 undertrial prisoners were released which went on increasing to 35,480 in 2022.

In 2022, the highest number of meetings were held in Odisha (1,440) closely followed by Karnataka (1,318) and Haryana and Rajasthan with 725 meetings.

The most number of UTPs were released in Karnataka (8,810) followed by Maharashtra (3,757) and Uttar Pradesh (2,654) in the year 2022.

Source: Rajya Sabha

The answer may be read here:

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The post Law Ministry data shows steady increase in release of Undertrial prisoners over 4 years appeared first on SabrangIndia.

In a far reaching decision affecting freedom of individuals and one that will impinge on already crowded prison conditions, the Supreme Court on Friday directed that all prisoners, who were released on emergency parole by the High Powered Committee during the Covid-19 period based on the orders of the Supreme Court, to surrender within 15 days.

“All those under trial prisoners and convicts who have been released on emergency parole/interim bail pursuant to the recommendations of the High Powered Committee in compliance of the orders passed by this Court have to surrender before the concerned prison authorities within 15 days”, ordered a bench comprising Justices MR Shah and CT Ravikumar.

However, the bench clarified that after the concerned prisoners surrender before the concerned prison authorities, it will be open for the concerned under trials to pray for bail before the competent court and their applications to be considered in accordance with the law. Similarly, after the surrender of concerned convicts released on emergency parole, it will be open for them, if so advised, to pray for suspension of their sentence before the concerned court in their appeals which might have been pending, which is also to be considered in accordance with the law.

The two judge bench bench passed the order in the suo motu case In Re: Contagion of COVID-19 virus in Prisons. In 2020 and 2021, the Supreme Court had passed several orders in the suo motu case during the first and second waves of pandemic for grant of emergency parole to prisoners in order to avoid the overcrowding of prisons. The Court had directed the constitution of High Powered Committees in States comprising of the (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to identify the classes of prisoners who can be granted emergency parole.

Related:

Bombay HC slams Prison Superintendent for selectively denying emergency parole to prisoners

Inform prisoners about rights, parole provisions: Rajasthan HC

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