Written By- Adarsh Pharasi
‘Hate the Crime not the Criminals’. These words of Mahatma Gandhi reflect the modern approach of Penology which concentrates on reforming criminals. No one is born-criminal, it is the unfavourable circumstances in our life which makes a criminal. Therefore probation serves the reformative approach of penology and aims at rehabilitating offenders to the norms of society to become a law abiding citizen. In the words of Sutherland and Cressey:
“Probation is the status of a convicted offender during a period of suspension of the sentence in which he is given liberty conditioned on his good behaviour and in which the state by a personal supervision attempts to assist him to maintain good behaviour.”
It is a method in which, rather than imprisoning the offender, is placed under the supervision of Probation officer for a specified period as per the conditions laid down by the court, with a view for his reformation.
Laws pertaining to Probation in India:
Code of Criminal Procedure, 1898 comprised the provision for probation of offenders under Section 562. After amendment Code of Criminal Procedure, 1974 consist of the said provision under Section 360. The Sub-section 1 Section 360 forms two classes of offenders entitled for probation:
The provisions of the section are supplemented and elaborated by Probation of Offenders Act, 1958. Further Section 361 of the code makes it mandatory for the court to record reasons for not granting probation to an offender where the court could have granted probation. But Section 19 of the Schedule Cast and Schedule Tribes (Prevention of Atrocities) Act, 1989 restricts the application of provisions of Sec. 360 of CrPC and Probation of Offenders Act, 1958 upon the offender above the age of 18 who has committed offence under Schedule Cast and Schedule Tribes (Prevention of Atrocities) Act, 1989.
Procedure for Probation under Probation of Offenders Act
The act empowers the power to grant probation by court by two means:
Probation after admonition may be granted upon the discretion of court if the person is convicted of offence of theft, misappropriation, cheating or any other offence punishable with two years of imprisonment or fine, or both and there is no other previous conviction of any offence.
Probation on good behaviour is granted when the court having regard to the nature of offence and offender and his good conduct thinks fit to release him on bond, with or without surety, that the offender will present himself to receive sentence in front of authority when called upon, not exceeding three years only when the offence for which the person is found guilty is not punishable with death sentence or imprisonment for life. The Court can appoint a probation officer for supervision of the offender during for a period not less than one year.
The Court may also require the offender to pay compensation as fine for his release on probation under section 5 of the Act.
Section 8: Variation of Condition of Probation
(1) If, on the application of a probation officer, any court of opinion that in the interests of the offender and the public it is expedient or necessary to vary the conditions of any bond entered into by the offender, it may, at any time during the period when the bond is effective, vary the bond by extending or diminishing the duration thereof so, however, that it shall not exceed three years from the date of the original order or by altering the conditions thereof or by inserting additional conditions therein;
Provided that no such variation shall be made without giving the offender and the surety or sureties mentioned in the bond an opportunity of being heard.
(2) If any surety refuses to consent to any variation proposed to be made under sub-section (1), the court may require the offender to enter into a fresh bond and if the offender refuses or fails to do so, the court may sentence him for the offence of which he was found guilty.
(3) Notwithstanding anything hereinbefore contained, the court which passes an order under section 4 in respect of an offender may, if it is satisfied on an application made by the probation officer, that the conduct of the offender has been such as to make it unnecessary that he should be kept any longer under supervision, discharge the bond or bonds entered into by him.
Bond for probation
An offender is required to enter into a bond, with or without surety to be released from incarceration on probation. In Dasappa v. State of Mysore, AIR 1965 Mys 224., The release of probationer on bond with or without sureties on probation of good conduct is, in nature, a preventive measure which seeks to save the offender from the evil effects of 5 / 18 THE PROBATION OF OFFENDERS ACT, 1958 institutional incarceration and affords him an opportunity of reformation within the community itself. It is a discretionary remedy rather than a mandatory one. But the bond may be terminated if the offender hasn’t complied with the conditions of probation order, or under the conditions given under Section 8 of the Act. But, in Durgesh Ranjan Chakraborty v. The Administrator of Tripura, AIR 1965 Tripura 26., it has been said that for the forfeiture of bond and the failure to pay penalty on behalf of surety, the court is not empowered to order surety’s arrest.
Under Section 13 of the act a probation officer is the person appointed to be a probation officer by the State Government or recognised as such by the State Government; or a person provided for this purpose by a society recognised in this behalf by the State Government; or in any exceptional case, any other person who, in the opinion of the court, is fit to act as a probation officer in the special circumstances of the case. A probation officer works under the control of the district magistrate of the district in which the offender for the time being resides and his reports are confidential ‘provided that the court may, if it so thinks fit, communicate the substance thereof to the offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in the report.’(Section 7)
Special Provision for offenders under twenty one years of age
Under Section 6 of the act the offenders under 21 years of age convicted of crime punishable with imprisonment(not life imprisonment) shall be given benefit of section 3 and 4 by the court but if the court with regard to the nature of offence and offender, report of probation officer is of the opinion that such benefit shall not be granted to the offender then it can do so with reasons recorded for its decision.
The provisions of Section 360 of Cr.P.C. and Probation of Offenders Act are same except that for the special provision for offenders under 21 years of age Cr.P.C. provides that there should not be any other conviction but the condition don’t apply to probation under Sec. 6 of Probation of Offenders Act. But the scope of these two enactment shll not be confused as under Sec. 19 of The Probation of Offenders Act provides that the Sec. 16, 17 and 360 of Cr.P.C. will not apply in states where the said Act is operative. Besides these two enactments, the Juvenile Justice (Care and Protection of Children) Act, 2000 also provides for the release of children who have committed offences to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, or any fit institution as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years.
Written By : VISHAD SRIVASTAVA
A relook of the constitutional provisions beginning from the Preamble and in chapters on fundamental rights, directive principles of State policy, fundamental duties and others providing formation of democratic government at the Centre and the State would make it evident that our Constitution in theory and practice is a testament of the people of India to protect and promote all fundamental human freedoms with dignity of every individual, purely as a human being regardless of his social and economic status. The Preamble contains the solemn resolve of people of India to protect all essential human freedoms of individuals. The provision of the Constitution echoes the Universal Declaration of Human Rights of 1948 which was in existence when the Constitution of India was being framed. The right to life, liberty, equality and dignity form the bedrock of our constitutional structure. Directive principles are guidelines for the State to take measures to improve quality of human life such as, ensuring humane conditions for the working class, social security measures for old, sick and handicapped, compulsory primary education and maintaining institutions for public health and many other activities for social upliftment and happiness of mankind. Article 21 of the Constitution guarantees right to life to every person and not only to every citizen of India. That right cannot be deprived of except in accordance with law which should be reasonable, just and constitutionally valid. By giving an expansive meaning to Article 21, various human rights culled from Universal Declaration of Human Rights, and treaties and conventions issued thereunder, have been read into Article 21 like right to livelihood, right to shelter, right to food, right to portable drinking water, right to access to health services, right to legal aid, right to privacy, right to protection against sexual harassment, right to be protected against police torture, custodial violence, handcuffing and illegal arrest. Speedy and fair trial has also been read as part of right to life guaranteed under Article 21.
MEANING OF THE TERM CUSTODIAL VIOLENCE
Custodial violence is the term which is made up of 2 terms custody and violence. Here the word custody means – A person who is under the control of the court or is in the physical hold of an officer with coercive power is in “custody” for the purpose of Section 439 CrPC. Explanation given in Black’s Law Dictionary, to the term ‘custody’ relied upon by Supreme Court viz.: “it is a very elastic and may mean actual imprisonment or physical detention.Within statute requiring that petitioner be ‘in custody’ to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. Accordingly, persons on probation or parole or released on bail or on own recognizance have been held to be ‘in custody’ for purposes of habeas corpus proceedings”. Another term which is used here is Violence and that means a mechanism which is used to assert one’s will over another in order to prove or feel a sense of power or superiority. It is generally perpetuated by those in power against the powerless. Violence therefore operates as a means to reinforce subordination. When a person is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by Judicial Orders, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence. This word is of elastic semantics but its core meaning is that the law has taken control of the person. Pre-conviction custody is known as under trial custody which is chiefly of two types- police and judicial. In police custody, the suspect is detained in the police lock-up by the investigating agency during the period of investigation which can’t be more than 24 hrs. Any detention beyond this period has to be with the permission of the magistrate and in total it can’t exceed 15 days. In judicial custody there is incarceration of the suspect which is authorized by a magistrate pending investigation or trial in a jail which is distinct from a police lock-up. The investigating agency can have access to such convict in the judicial custody only with the special orders of the court only. There is no statutory upper limit to under trial judicial custody save a provision which is commonly known as ‘default bail’. There are other kinds of custody as well such as protective custody, deportation camps for foreigners whose presence has been declared to be illegal and military custody. The juveniles are housed by a special order in protection homes. For destitute women also, protection homes have been established. Under the Mental Health Act, persons may be committed to mental hospitals. Military custody is subject to the law of armed forces where only military personnel can be taken into custody and not the civilians by them. The paramilitary forces, when they exercise powers of arrest are required by law to hand over the arrested persons to the police.
PROVISIONS REGARDING CUSTODIAL VIOLENCE
Custodial violence primarily refers to violence in police custody and judicial custody. Besides death, rape and torture are two other forms of custodial violence. Custodial violence is not a recent phenomenon. Sections 330, 331 & 348 of IPC; Sections 25 & 26 of the Indian Evidence Act; Section 76 of CrPC and Section 29 of the Police Act, 1861 were enacted to curb the tendency of policemen to resort to torture to extract confessions etc.
Provision in IPC- The sections which are involved in the matter related to custodial violence are section 330, 331 and 348. Here section 330 state that Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and section 331 deal with the same issue but this section talks about grevious hurt but section 348 talks about the wrongful confinement of persons to extort confession or compel restoration of property. In the landmark case related to section 330 and 331 is Kartar Singh vs State of Punjab where Constitution bench give the judgement that In cases of “Police brutality and utter atrocities committed is breaches of humanitarian law and total negation of constitutional guranteees and human decency. Human Rights constitute the basic right and constitution of India expressely confers to safeguard it and this goes without saying that if the officers incharge of custody does any act where the degree of barbarism is not imaginable then they have to face perpetual judicial scrutiny oders. Nowadays use of third degree has become the common part played by the police official but we condemn this act of barbarism. To safeguard we have made the provison for section 24 of the evidence and as well as sections 330and 331 of Indian Penal Code. Article 21 which state about right to life and personal liberty and in this Article 21 there is right against torture and assault by the state. Therefore this court advice the police to maintain the balnce between the arrest of person and getting a person punished for his grave mistake.”
Provision in evidence act- Section 25 of Evidence act state that No confession made to a police officer, shall be proved as against a person accused of any offence. The important case law which flows for the right against custodial violence is In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy Council decision in Pakala Narayan Swami case over two scores.Firstly, that the definition if confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence. Secondly, that a mixed up statement which even though contains some confessional statement will still lead to acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the matter or offence, cannot amount to confession. In Aghnoo Nagesia v. State of Bihar the Supreme Court held that “if the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S. 25.” Section 27 provides as to how much of information received from an accused may be proved. For the application of S. 27, the statement of the accused is required to be split into its components and the admissible part of it is to be separated. Only those portions which were immediate cause of discovery would be admissible in evidence. In State of Bombay v. Kathi Kalu Oghad, the Supreme Court held that: Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under S. 27. These will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Art. 20(3); but there is no such infringement where he gives the information without any compulsion. Therefore, compulsion not being inherent or implicit in the fact of the information having been received from a person in custody, the contention that S. 27 necessarily infringes Art. 20(3) cannot be accepted.
PROVISION IN CONSTITUTION
Art. 20(3) provides that a person accused of any offence shall not be compelled to become a witness against himself. The accused has a right to maintain silence and not to disclose his defence before the trial. Test results of polygraph and brain finger printing tests have been held to be testimonial compulsions and thus have been held to be barred by Art. 20(3). Moreover recoveries under S. 27 of the Indian Evidence Act, 1872 are not permitted to be procured through torture. Art. 21 provides that nobody can be deprived of his life and liberty without following the procedure prescribed by law. The Supreme Court has consistently held that custodial torture violates right to life enshrined in Art. 21 of the Constitution. It is settled legal proposition that Art. 21 may also supplement various requirements laid down in Art. 20.
In Sunil Batra v. Delhi Admn. the Supreme Court in crystal clear words held that “fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration.”
Art. 22(1) & (2) provide for protection against arrest and detention in certain cases. It prohibits detention of any person in custody without being informed the grounds for his arrest nor he shall be denied the right to consult and to be defended by a legal practitioner of his choice. “Every person who is arrested and detained in custody shall be produced before the nearest judicial magistrate within a period of twenty-four hours of such arrest and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” Similarly, a criminal trial which may result in depriving a person of not only personal liberty but also his right to life has to be unbiased and without any prejudice for or against the accused. It has also been held that a punishment which is too cruel or torturous is unconstitutional. Informing about grounds of arrest is mandatory under Art. 22(1) Right to consult and to be defended by legal practitioner of his choice is also mandatory. More so, production of the accused before the nearest magistrate is a mandatory constitutional requirement.
India signed the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [adopted by General Assembly of the UN on 10-12-1984 (Resolution No. 39/46)] (known as the UN Convention against Torture, in short “CAT”) on 14-10-1997 however, so far it has not been ratified. India has expressed its reservations against certain provisions contained in the Convention, such as inquiry by the CAT (Art. 20); State complaints (Art. 21) and individual complaints (Art. 22).
(i) Observation of certain organisations
The International Commission of Jurists, and other organisations have urged India to adopt the reforms suggested by the Convention. The Universal Periodic Review is an interactive process carried out after every four years. Under this framework, the Human Rights Record of UN member States is reviewed. India has also been requested to ratify the Torture Convention by some State parties during the Universal Periodic Review of Human Rights.
The Working Group on Human Rights in India has called for intervention by the Government against torture.
(ii) Government’s stand
The Central Government initially took the stand that under the Indian Penal Code, 1860 torture is a punishable offence. Later on, it was decided to go for standalone legislation and the Prevention of Torture Bill, 2010 was introduced in the Lok Sabha to give effect to the provisions of the Convention. The Bill was passed by the Lok Sabha on 6-5-2010. Rajya Sabha referred the Bill to a Select Committee which had proposed amendments to the Bill to make it more compliant with the torture Convention. However, the Bill lapsed with dissolution of the 15th Lok Sabha. India is not agreeable to repeal the Armed Forces (Special Powers) Act, 1958 (Afspa).
In Ashwini Kumar v. Union of India a Civil Writ Petition filed by Dr Ashwani Kumar, the petitioner submitted before the Supreme Court that “India faces problems in extradition of criminals from foreign countries because of this (having no law against torture). It’s in our own national interest to have such a law.” The petitioner sought directions to the Government to have a legal framework and proper guidelines in terms of the CAT to prevent torture, cruelty, inhuman or degrading treatment to jail inmates. In 2012 the UN Special Rapporteur presented his Report on Death Penalty and Prohibition of Torture in the United Nations General Assembly. The report noted that while death penalty is not violative of the prohibition of torture and cruel, inhuman and degrading treatment, certain aspects related to it such as certain methods of execution and the incident of being on a death row may be covered under this convention. However, it must be noted that such a view on Torture and death penalty is applicable to only those countries which carry out under the guise of lawful sanctions, barbaric execution (e.g death by stoning) which clearly have traits of torture. Human rights concerns for death penalty and torture are often cited as grounds for refusing extradition requests. Countries that have abolished death penalty often need diplomatic assurances that rights of the person to be extradited shall not be breached. If it appears that death penalty may be given, or there are grounds for believing that if the person is extradited he may be tortured or subjected to cruel, inhuman and degrading treatment or denied any of the rights guaranteed to him by various international law instruments such as Iccpr and Undhr. It would hardly be conducive to the object of the convention when a State party surrenders a suspect or fugitive knowingly to another State party where he will be in real danger of being subjected to torture, it would run contrary to the spirit and intention of the Convention itself, to expose a person to the real risk of torture or cruel, inhuman and degrading treatment. It has also been held that as such prolonged duration of a death row inmate and the “ ever present and mounting anguish of awaiting execution of death penalty” would amount to torture.The prohibition of torture is a part of customary international law and is a part of jus cogens. Inclusion of extradition prohibitions in the Torture Convention enjoins more States to ensure accountability worldwide for acts of torture. The Convention has not created an international crime which had not previously existed but provided an international system under which the torturer — international criminal, could find no safe haven.
In Shatrughan Chauhan v. Union of India the Supreme Court while discussing the scope of torture in the execution of death sentence observed:
“undue, inordinate and unreasonable delay in execution of death sentence does certainly attribute to torture which indeed is in violation of Art. 21 and thereby entails as the ground for commutation of sentence. However, the nature of delay i.e whether it is undue or unreasonable must be appreciated based on the facts of individual cases and no exhaustive guidelines can be framed in this regard.” The Court, in response to the Solicitor General’s statement that the Law Commission of India was examining the issue, observed: “So many matters are pending before the Law Commission. It should be taken up as a matter which requires extreme urgency.” Accordingly, the Central Government vide its letter dated 8-7-2017 asked the Law Commission to examine the issue of ratification of UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment and submit a report on the matter.
Law and order means that the police is empowered to maintain order in the society but it must derive its power from the statutes under which it has been formed. It should not take law into its own hands. It gets its power from the law and in turn has to exercise the same lawfully only and not unlawfully. Police has to balance between the rights of the accused, victim and the witnesses. Police has to subscribe to the ‘rule of law’ which is paramount to any democracy of the world. In democracy, charter of police is expanded and included to regulate activities of people under social legislation. While democracy speaks of freedoms, police curtails them which result into the conflicts between the people and the police. Like a clergyman a policeman is expected to be better than his fellow citizens. He is the law in action and the gatekeeper of the criminal justice system. He enjoys discretionary powers in the field whether to set the law in motion or not. He should possess and display the best of human values.
Edited By : GAURAV AGARWAL
Written By : FLORINA LAZA
The conditions in which prisoners are being held are different for every country, but what they all have in common is an all-encompassing set of international standards which needs to be addressed and put in practice accordingly. The revised UN Standard Minimum Rules for the Treatment of Prisoners were adopted unanimously in December 2015 by the UN General Assembly (UN-Doc A/Res/70/175). They are known as “the Nelson Mandela Rules” to honor the work and achievements of the late President of South Africa, Nelson Rolihlahla Mandela, who was a strong advocate for the rights of prisoners throughout his entire life, spending “27 years in prison in the course of his struggle for global human rights, equality, democracy and the promotion of a culture of peace”.
The original framework was firstly adopted in 1955 and after more than 60 years of practice, there was a clear need for development. In the past decades, the international legal framework on the treatment of prisoners has been perfecting and several international conventions interfered, such as: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
While they present a general international legal framework on basic principle rights, the Nelson Mandela Rules consist a set of minimum standards that should be applied in prisons from admission to release, assuring that every detainee’s right matters. However, the 122 Rules do not seek to create a model system of penal institutions, but rather to present in the most adequate way “what is generally accepted as being good principles and practice in the treatment of prisoners and prison management”. Considering the variety of legal, social, economic and geographical circumstances, it is obvious that those rules are not suitable for all countries. However, they should determine a continuing process of evolution in the struggle of creating fair domestic prison systems.
Globally, the world prison population has increased by almost 20% since 2000, to more than 10 million people, and the conditions for some of those detainees are a nightmare: overcrowded cells; limited medical and health services; high usage of solitary confinement; violence and drugs; torture, ill-treatment and the absence of legal safeguards; limited access to legal representation and little knowledge of basic rights; lack of hygiene, food, care, and, of course, dignity. The Nelson Mandela Rules cover all aspects of those international problems and outline the agreed minimum standards for the treatment of prisoners.
From Rule 1 to 5, the international instrument defines the basic principles applicable “to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to “security measures” or corrective measures ordered by the judge”. First of all, all prisoners should be treated with respect due to their inherent dignity and value as human beings (Rule 1). Nothing justifies torture or other cruel, inhuman or degrading treatments or punishments.
Also, all the rules should be applied impartially with no discrimination “on grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status”. Every prisoner’s moral beliefs and religious views should be treated with consideration (Rule 2). So, all detainees should be treated according to their individual needs, especially taking into account the most vulnerable categories (pregnant women, elderly people, and malnourished, people who are ill or immunocompromised, disabled or lacking capacity). Another idealistic aspect would be the minimization of any “differences between prison life and life at liberty” through necessary adjustments for prisoners with physical, mental or other disabilities (Rule 5).
The whole purpose of the prison system is to reduce criminality, recidivism and ensure reintegration in the society. For those, prison administration and other competent authorities should offer education, vocational training and work through a variety of programs (Rule 4). The prisoner must feel that, after serving his time, he can have a future outside the prison facility.
In every prison, there should be a sustainable standardized prisoner file management system represented by an electronic database of records or a registration book with numbered and signed pages. The prisoner file management shall include certain pieces of information prior to admission and in the course of imprisonment that shall be kept confidential and made available only to those who have a professional responsibility which justifies the request (Rule 6 – 9).
Moreover, separation of categories on basis of sex, age, criminal record, the legal reason for their detention is a highly requested necessity that goes beyond the call for dignity. The separation shall be made on institutions or parts of institutions as such: men prisoners should be kept as far as possible from women prisoners, at least in two entirely separate premises of an institution; prisoners awaiting trial shall be kept separate from prisoners serving a sentence; civil prisoners shall be kept separate from prisoners imprisoned for criminal charges; young prisoners shall be kept separate from adults (Rule 11).
In respect to general living conditions, “it is not desirable to have two prisoners in the same cell or room”. Every prisoner should occupy a cell or room alone with the exception of temporary overcrowding. Every prisoner must have access to clean bedroom facilities that shall meet the requirements of health, dignity and hygiene. Adequate bathing and shower installation must be provided at least once a week in temperate climates and for other kind of climates only taking into account each season and geographical particularities. Also, proper and clean clothing is a necessity for the maintenance of hygiene. Moreover, food and water restrictions are prohibited. Prisoners should be provided with nutritious food at fixed hours and drinking water whenever they need it. The Rules require certain conditions for prisoners who work in respect to the general need for fresh air and light of natural or artificial kind. But those prisoners who are not employed in outdoor work should have at least one hour of exercise in open air daily or access to physical and recreational training (Rule 12 – 23).
In regards to health-care services, the Rules sustain that every prison should have at least one competent public health body who bears the responsibility of evaluating a prisoner’s health prior to admission and in the course of imprisonment. It has, also, the task of protecting and improving the physical and mental health of prisoners, and of regularly inspecting and advising the prison director and the prison staff.
Prisoners should have access to the same standards of health care as any human being. All prisoners who require specialized treatment or surgery must be transferred to specialized institutions or to civil hospitals. No discriminations should be allowed, but rather particular treatments for those with special healthcare needs should be provided. For example, prisons should provide special accommodations and treatments for women being in postnatal care. Furthermore, a child can be allowed to stay with his mother in the prison facility, but only taking into account the best interest of the child concerned. The child of the prisoner must be provided with specific child related health-care services and helped by specialized childcare staff and should be shifted to special facilities when they are not in the care of their parent. An important mention is that children living with their incarcerated parent should never be treated as prisoners.
Other provisions express the absolute prohibition of scientific experiments that may affect the prisoner’s health, such as the removal of prisoner’s cells, body tissues or organs. But they may be allowed to participate in clinical trials and other health researches only with their free and informed consent and only in accordance with national and international laws (Rule 24 – 35).
With the purpose of keeping the discipline and order among all prisoners, the prison staff must take certain actions, but only in respect to each prisoner’s dignity. Idealistic would be that no more restrictions will be used, but the reality is more ruthless and sometimes only authority can make a change in a person’s behavior. Even so, there shouldn’t be more restrictions than it’s necessary to “ensure safe custody, secure operation of the prison and a well-ordered community life” (Rule 36). The use of torture or other inhuman or degrading treatments or punishments as a form of disciplinary sanction is strictly forbidden. Prison staff is encouraged to use conflict prevention techniques such as mediation or other alternative dispute resolution mechanisms to prevent and resolve conflicts (Rule 38). However, the prisoner who suffers from mental illness or intellectual disability will not be sanctioned in this way and, most likely, will only be removed to a separate facility. No prisoner will be deprived of his or hers general living conditions addressed in these rules with no exception (Rule 42).
In addition, the Nelson Mandela Rules are the first international instrument in which limitations on the use of solitary confinement are regulated. This form of punishment refers to the “confinement of a prisoner for 22 hours or more without meaningful human contact”. Prolonged solitary confinement lasts for 15 consecutive days and is prohibited.
Solitary confinement should be used only with the proper authorization regulated by national laws and only in exceptional cases as a last resort for a short period of time. It is strictly prohibited for prisoners with mental illnesses or physical disabilities only if their conditions would be worsen. Also, the usage of such a practice on pregnant women and children is severely forbidden (Rule 44 – 45).
So, the following practices are prohibited: indefinite solitary confinement; placement of a prisoner in a dark or constantly lit cell; corporal punishment or the reduction of a prisoner’s diet or drinking water; collective punishment. Instruments of restraint which are deeply inhuman such as chains, irons or other instruments of restraint must never be applied as a sanction for disciplinary offences. Other instrument of restraint must be used only in certain regulated circumstances and only if allowed by laws (Rule 43 and Rule 47). Also, the family contact may only be limited, but not prohibited for an indeterminate period of time.
In this context, the health-care services has only the role of detecting and reporting to the prison director the adverse effects of disciplinary sanctions on mental and physical health of a prisoner subject to a permitted form of punishment (Rule 46).
Sometimes searches of prisoners and cells are a requirement to keep the security in the prison facility, but they must be conducted in respect to the principles of proportionality, legality and necessity, and only taking into consideration each prisoner’s right to privacy and inherent human dignity. Prior to admission, every prisoner should be informed about the prison law and regulations, obligations as a detainee, and all other important matters necessary for the adjustment to prison life. They, also, have the right to make complaints and requests which must be resolved promptly by the prison administration. If the request or complaint is rejected or not answered, the prisoner must have the possibility to address a higher judicial authority.
Regarding the contact of prisoners with the outside world, they must be permitted to communicate with their families and friends through phones or letters, and to receive visits on a regular schedule. Of course, conjugal visits must be allowed with no distinction between men and women (Rule 58). Besides, every prisoner should have the possibility of informing his or her family as soon as possible in the cases of imprisonment, transfer to another institution and any other serious illness or injury. As well as in respect to freedom of religion, access to qualified representatives of the religious cult must not be restricted. Moreover, if there is a considerable amount of prisoners of the same religion, a qualified representative must be appointed or approved (Rule 65).
In this highly sensitive environment, the necessity of specialized training for the prison staff emerges explicitly through the paragraphs of this international legal framework. The Rules requests training for employees prior to entry into service as well as ongoing in-service. The minimum training model should include security and safety, the concept of dynamic security, the use of force and instruments of restraint, the management of violent offenders, and legal rights and obligations.
The prison administration must make the necessary arrangements for the future reintegration of prisoners into society. They should be helped to continue to take part in the community, and not consider themselves as being excluded. Prisons should take into serious consideration that different groups of people may have different needs, thus if they are treated in the same way, you might achieve equality, but not equity. So, they should be differentiated by “criminal records, physical and mental capacities and aptitudes, personal temperament, the length of his or her sentence and prospects of release” (Rule 92).
Methods such as education, vocational guidance, social casework, employment counseling, physical development and strengthening of moral character must be synchronized with the individual needs of each prisoner. Another useful method is the process of classification and individualization for prisoners with the purpose of eliminating bad influence from detainees with a concerning criminal record and personality “in order to facilitate their treatment with a view of social rehabilitation” (Rule 93).
To ensure reintegration and reduce recidivism, the prisoner must be able to sustain himself economically after release. So, he should be provided with job prospects, education and meaningful activities. Any work should have the purpose of helping the detainee to accumulate practice in a job he will most likely continue upon his release. Also, learning opportunities should be at the core of the prison system. And a prison library must be available for all.
Despite all these, the Nelson Mandela Rules are a source of so-called soft law, thus being non-binding for state parties, but still representing a highly valuable commitment made by all Member States to acknowledge and recognize the principle issues regarding the treatment of detainees in prison facilities. As a result of it, all Member States have the moral obligation of adapting the provision of the presented resolution with their domestic legal framework, bearing in mind the spirit and the purposes of the Rules. So, all signed parties are encouraged to improve the conditions of detention for all prisoners by any means possible taking into account all the relevant and applicable international provisions and good practices.
Even so, there are still many problems to be resolved by future international laws. For example, overcrowding is still an international problem and may be reduced if non-custodial measures will finally be unanimously accepted and applied as a general rule, and pre-trial detention only as an absolutely necessary exception. Far too many people are found not guilty or sentenced to a minor sanction that doesn’t require imprisonment, thus suffering, in this process, is completely unnecessary from a public stigma as they are no longer presumed to be innocent by the general public opinion and are usually treated as criminals by the mainstream media.
Edited By : GAURAV AGARWAL
Written By- Vishad Srivastava
The plight of undertrial prisoners is one of the most neglected talk in the legal fraternity. This issue needs to be taken more seriously but between the separate media trial and the real trial the voice of innocent prisoners somewhat get lost. There is no doubt that the number of undertrial prisoners are more than real convicters and we often neglect this part as because before the conviction by our honourable court media do themselves their illogical trial and held every prisoner on trial a offender, this view got it’s support in the wake of recent acquittals of Swami Aseemanand in Mecca Masjid Blast Case, B.J.P M.L.A Maya Kodnani from Naroda Patiya case or 2 G spectrum acquittals in all these cases media had brutally assassinated the character of all acquitted persons which will be a blot on their life forever. Moreover, we also have a apprehension that real culprits are still not in the hand of police but we have to look the another side of coin that what about the precious time and suffering of these peoples who have to remain a undertrial prisoners and have to face all the grave problems. However our Supreme Court had provided the guidelines for undertrial prisoners which have brought a flame in this issue as to safeguards have also the same importance as of a law and in our country till we do not have a law this guidelines will be a support to the plight of undertrial prisoners.
Guidelines by the Apex Court: The social justice bench of Supreme Court in the case of In Re Inhuman Conditions in 1382 prisons had issued a guidelines relating to prison reforms in the country. Bench Comprising of Justice Madan Lokur and Justice R.K. Aggarwal had said that ‘it is a matter of grief and pain that since so many years we do not have specific laws regarding the undertrial prisoners right Although we have Article 21 which also talks about the plight of undertrial prisoners but that is not sufficient at all. So in the wake of all this it is necessary to issue some guidelines so that till the law is made by legislature till then affected persons get their grievances addressed with the help of these guidelines.’ It is appreciable that judges perform their duties well enough but it is also interesting to note that behind this landmark decision there is a background of letter of former Chief Justice R.S. Lahoti. Justice Lahoti written letter in June 2013 to then C.J.I about the condition of prisons and condition of 1382 undertrial prisoners after that letter took the form of public interest litigation and it was mention in the registry and case was filed. After this Social Justice Bench ordered to government to furnish copies of information related to plight of undertrial prisoners and problem of overcrowding including all other crisis of undertrial prisoners which they have to face. Subsequently following the order of the Court the Ministry of Home Affair filed an affidavit requesting all the states and union territories to follow the court’s order and provide the information as requested, however some states and union territories did not furnish the information. It was stated that it was due to the improper management information systems that the information could not be aggregated. After this solicitor general at that time presented the issues and their respective replies. Issue were mostly related to prisoners right and state obligation towards them it also include question on repartition of prisoners act, 2003 where India is also signatory to this international agreement.This agreement is basically transfer of culprits to their respective nation jails after following due process mention in this act.
After discussing all this issue the apex court gave the following direction related to undertrial prisoners:
MHA was directed to study Prisoners Management System installed in Tihar Jail and suggest suitable modification/suggestion to the system and so that the software can also be used in other Jails in India.
With this landmark guidelines apex court performed it’s obligation towards undertrial prisoners who are nonetheless being talked. We have come in the era where we donot want to break out the sereotype and here we are typecasting as every undertrial a prisoner this issue is not much in light when we talk about normal undertrial prisoner but this issue becom vast when any one is facing terrorist charge then role of media comes up and brutal assaination of character of arrested persons is done through fake trial by media houses. Although this issue is not very much heated but this bedrock issue needs to be addressed like all other problems of undertrialprisonere which are uncountable. The need of the hour is to have particular law for undertrial prisoners and need to safeguard their right otherwise the day is not far away where in front of our eyes humanity will be assassinated and we will be just a mute witness.