Overcrowding of Prison

• 15 May 2021

Why in News

The Supreme Court (SC) of India has ordered the interim release of eligible prisoners in view of the uncontrolled second surge in the raging Covid-19 pandemic.

• The Court’s order aims to decongest jails and a measure that protects the right to life and health of the prisoners.

Key Points

• Important Points of Supreme Court Order:
  
  • Emphasised the need to adhere to the norms it had laid down in Arnesh Kumar vs State of Bihar (2014) case.
    
    • Under this case, the police were asked not to effect unnecessary arrests, especially in cases that involve jail terms less than seven years.
  • Authorities in all districts in the country to give effect to Section 436A of the Code of Criminal Procedure (Cr.P.C).
    
    • Under the Section 436A of the Cr.P.C, the undertrials who have completed half of the maximum prison term prescribed for the offence may be released on personal bond.
  • Suggested the legislature to consider the idea of placing convicts under house arrest to avoid overcrowding of prisons.
    
    • The occupancy rate in prisons climbed to 118.5% in 2019. Moreover, a very large sum of the budget is used for the maintenance of prisons.
  • Ordered all States to take preventive steps as well as constitute high-powered committees to determine the class of prisoners who could be released on bail or parole for a specified period.
• Status of Indian Prisons:
  
  • Indian prisons face three long-standing structural constraints:
    
    • Overcrowding,
    • Understaffing and underfunding and
    • Violent clashes.
  • The Prison Statistics India 2016, published by the National Crime Records Bureau (NCRB) in 2019 highlights the plight of prisoners in India.
    
    • Under-trial Population: India’s under-trial population remains among the highest in the world and more than half of all undertrials were detained for less than six months in 2016.
      
      • The report highlights that at the end of 2016, there were 4,33,033 people in prison, of whom 68% were undertrials.
      • This suggests that the high proportion of undertrials in the overall prison population may be the result of unnecessary arrests and ineffective legal aid during remand hearings.
    • People Held Under Preventive Detention: There is the rise in the number of people held under administrative (or ‘prevention’) detention laws in Jammu and Kashmir.
      
      • A 300% increase, with 431 detainees in 2016, compared to 90 in 2015.
      • Administrative, or ‘preventive’, detention is used by authorities to detain persons without charge or trial and circumvent regular criminal justice procedures.
    • Unawareness about Section 436A of C.R.P.C.: There is a gap between the number of prisoners eligible to be released and actually released, under Section 436A of the Code of Criminal Procedure.
      
      • In 2016, out of 1,557 undertrials found eligible for release under Section 436A, only 929 were released.
      • Also, research by Amnesty India has found that prison officials are frequently unaware of this section and unwilling to apply it.
    • Unnatural Deaths in Prison: The number of “unnatural” deaths in prisons has doubled between 2015 and 2016, from 115 to 231.
      
      • The rate of suicide among prisoners also increased by 28%, from 77 suicides in 2015 to 102 in 2016.
      • The National Human Rights Commission (NHRC) in 2014 had stated that on average, a person is one-and-a-half times more likely to commit suicide in prison than outside. This is a possible indicator of the magnitude of mental health concerns within Indian prisons.
    • Lack of Mental Health Professional: There was only one mental health professional for every 21,650 prisoners in 2016, with only six States and one Union Territory having psychologists /psychiatrists.
      • Also, the NCRB had said that about 6,013 individuals with mental illness were in jail in 2016.
      • As per the Prison Act, 1894 and Prisoner Act, 1900, there should be a welfare officer and a law officer in each jail but recruitment of these officers is still pending. This state explains the low political and budgetary priority which prisons have received during the preceding century.

Recommendation for Prison Reforms

• The Supreme Court appointed Justice Amitava Roy (retd.) Committee has given the following recommendations to reform prisons.
  • For Overcrowding:
    • Speedy Trial: Speedy trial remains one of the best ways to remedy the unwarranted phenomenon of overcrowding.
    • Lawyer to Prisoner Ratio: There should be at least one lawyer for every 30 prisoners, which is not the case at present.
    • Special Courts: Special fast-track courts should be set up to deal exclusively with petty offences which have been pending for more than five years.
      • Further, accused persons who are charged with petty offences and those granted bail, but who are unable to arrange surety should be released on a Personal Recognizance (PR) Bond.
    • Avoid Adjournment: An adjournment should not be granted in cases where witnesses are present and the concept of plea bargaining, in which the accused admits guilt for a lesser sentence, should be promoted.
  • For Prisoners:
    • Accommodative Transition: Every new prisoner should be allowed a free phone call a day to his family members to see him through his first week in jail.
    • Legal Aid: Providing effective legal aid to prisoners and taking steps to provide vocational skills and education to prisoners.
    • Use of ICT: Use of video-conferencing for trial.
    • Alternatives: The courts may be asked to use their "discretionary powers" and award sentences like "fine and admonition" if possible instead of sending the offenders to jails.
      • Further, courts may be encouraged to release offenders on probation at pre-trial stage or after trial in deserving cases.
  • Filling Vacancies:
    • The Supreme Court should pass directions asking authorities to start the recruitment process against permanent vacancies within three months and the process should be completed in a year.
    • For Food: Modern cooking facilities and canteens to buy essential items.
• In 2017, the Law Commission of India had recommended that undertrials who have completed a third of their maximum sentence for offences attracting up to seven years of imprisonment be released on bail.

Constitutional Provisions

• State Subject: 'Prisons/persons detained therein' is a State subject under Entry 4 of List II of the Seventh Schedule to the Constitution of India.
  • Administration and management of prisons is the responsibility of respective State Governments.
  • However, the Ministry of Home Affairs provides regular guidance and advice to States and UTs on various issues concerning prisons and prison inmates.
• Article 39A: Article 39A of the Constitution directs the State to ensure that the operation of the legal system promotes justice on a basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
  • Right to free legal aid or free legal service is an essential fundamental right guaranteed by the Constitution.
  • It forms the basis of reasonable, fair and just liberty under Article 21 of the Constitution of India, which says, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

Key Terms

• Undertrials: These are the people who are yet to be found guilty of the crimes they have been accused of.
• Preventive Detention: The imprisonment of a person with the aim of preventing them from committing further offences or of maintaining public order.
  • Article 22 (3) (b) of the Constitution allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
  • Further, Article 22 (4) states that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless:
  • An Advisory Board reports sufficient cause for extended detention.
  • Such a person is detained in accordance with the provisions of any law made by the Parliament.
• Personal Recognizance (PR) Bond: It is also known as Own Recognizance (OR) bond, and sometimes referred to as “no cost bail”. With this type of bond, a person is released from custody and is not required to post bail.
  • They are, however, responsible for showing up on their specified court date, and must sign a release form stating this promise in writing.
  • The person is then released from custody based on their promise to appear in court and abide by any conditions of release set by the court.

Source: TH