The Perils of Prison overcrowding: -

In this paper the Socio-legal issue that I aim to address is that of the Prison Overcrowding. Since
there is no law that particularly deals with such issue, I have tried to incorporate factors which
indirectly contribute to this concern. After elaborating in detail the effects of prison overcrowding on
certain section of the society, I have highlighted measures opted by the institutions of the country

Introduction:

Currently the Indian legal system operates mostly on the ancient pre independence, colonial era
laws. The Prisons Act, 1894’, has been the guiding force behind the existent state of prisons in India.
This law can also be termed as the forgotten law of the nation. Such an ancient law has not
conceptualised the state of the prison in the present era. With the colonial mindset such a law
continues to encroach on the basic human rights of the inmates. This is evident because the
conditions of the prisons are in the most deteriorating state. The law persists to carry the colonial
mindset and deflects the contemporary ideology of reformation and progress of prisons on
humanitarian aspects. The dilapidated state of Indian prisons can also be attributed to several other
laws that are a source of punitive measures.

During the colonial rule prisons were established in the harshest conditions to ensure any form of
dissent towards the state is curbed egregiously. Several punishments albeit abominable were
legitimised by the lay of 1894. Such as whipping was permitted and provided that the number of
stripes shall not surpass thirty, even though for only male prisoners. Likewise, no act of prison
authorities is liable to be criminalised, granting them full immunity, presuming their faith in the acts
done by them, yet extreme neglect and hope attached with the activities of the authorities have
often led to miserable death of not only prisons but also sometimes the one in custody, or the one
reporting an FIR. Yet surprisingly the features of the act do include necessary factors with regard to
prison management and administration. For instance, it classifies prisoners as “criminal “, “civil” and
“convicted” prisoners. The act ensures the appointment of superintendent, medical officer, jailer and
officer like inspector general under whose charge the prison will work efficiently. The act also has
provisions for dealing with natural calamities such as epidemics. The officers are mandated to ensure
sanitary conditions, health, treatment of prisoners, documenting and recording all particulars such as
health, diet, diseases and date of death of deceased prisoner

However, there are no provisions for reformation and rehabilitation of prisoners under the present
act. The act of 1894 statute for effective administration and management of the prisons. However,
there are several factors which contradicts the provisions of the act. One of the major deterrents to
the success of the ace is the concern of prison overcrowding. This issue has created a cascading
effect and has led to multiple crises. The prisons are severely overcrowded with intense neglect on
basic humanly conditions such as hygiene, health facilities, lack of proper food. Etc.

As per latest National Crime Records Bureau (NCRB) Prison Statistics for 2022 and statistics preceding
that overcrowding of the prisons has emerged as serious concern. Delhi’s occupancy rate has stood
at 184.5%, despite the capacity of 10,026 the total inmates lodged are 18,497. This is followed by
Uttarakhand which stands at a capacity of 183.3% inhabiting 6,858 inmates against a capacity of
3,741, and Uttar Pradesh at 179.9% with 1,21,609 are incarcerated despite space for 67,600. India’s
prisons witnessed 19,186 more prisoners by the end of 2022, compared with 2021.

The majority of inmates accounted as per the report at least more than three in four are undertrial.
Astoundingly majority of them come from marginalised groups of population-including SC, ST and
OBC. The NCRB report of 2020 state that 76% of all prisons inmate are undertrials, out of which 68%
are either school drop outs or illiterate. Among this population 20% were Muslims, 73% come from
Dalit, Tribal or OBCs community. Dalits who from 16.6% of Indian Population, account for 21% of all
undertrials, and 21% of all convicts. Tribals forming 8.6% of Indian Population, account for 10% of all
undertrials and 14% of all convicts. OBCs who constitute 41% of the total Indian Population
accounted for about 42% the total undertrials and 37% of all convicts. Hence intensifying our
concern as evidently the backward caste are constituting the majority of prison occupancy. In 2022,
about a fifth (21%) of the undertrials in 2022 were SCs, 9% were STs and 35% were OBCs. For
context, 17 % of India’s population are SCs and 9 % are STs. The suicide rate in prisons, was 20.8 per
100,000 prisoners in 2022--67% more than the all-India rate of 12.4 suicides per 100,000 population.
In a decade since 2013, the suicide rate in prisons was highest in 2020. In 2022, India had 25
psychiatrists/psychologists in prisons, just over a third of the sanctioned strength.
As per NCRB data 24,033 of undertrials have been in confinement in prisons for three to five years,
as of 2021. Out of which 11,490 have spent more than 5 years in prisons without being convicted.
Large overcrowding indicates that none of the rules pertaining to Modern Prisons Manual regarding
how prisoners should be kept are being followed. In Maharashtra the Maharashtra Prison Manual
1979 guarantee a space of 40 square feet for sleeping for an inmate, but three people would occupy
a space meant for one. Such a state of overcrowding lead to various factors detrimental to one’s well-
being. With large number of people and limited human and manmade resources to cater for them,
many inmates found themselves with inadequate facilities. Such as then the doctor to patient ratio is
poor, and affecting doctor’s capacity to attend to everyone. For instance, in Mumbai the only cure
the overburdened doctor then had been a pain killer for all ailments. Such spaces find themselves in
compromising state as basic hygiene such as toilets are always clogged and dirty, food quality is poor
etc. All these factors therefore, culminate in malnourishment leading to poor mental and physical
help. Covid19 pandemic was a nightmare for prisons and inmates, without vaccination and proper
medical access, and strict lockdown measures the rate of infection and deaths would have only
increased. The pandemic further enhanced conditions of increase in under trail or occupancy rate of
prisons as strict lockdown law under section 188 of the IPC (disobedience to order duly promulgated
by public servant) became operational.in 2020 the rate of custodial deaths increased by 7%. This
included unnatural deaths, which include suicides, accidents, and murders in prisons, increased by
18.1 per cent. Such figures only lead to the estimate that lockdown rules, covid19 and increase in
occupancy rate increased custodial violence and disease. The situation is all the worse for women
especially the ones which are pregnant, mensurating or have a child, resulting in constant fights to
occupy space in already cramped up spaces. Astoundingly, less than 40% of prisons have provisions
to provide sanitary napkins for female inmates. With such an increase in number rehabilitation
programmes find their fate to be debunked. And not to forget that prisons are also the place where
maximum amount of violence sexual and physical takes place among the inmates. Given the
overcrowding aspects, it’s not a surprise that the suicide rate in prisons is greater than the all-India
suicide rate. Majority of inmates in prisons especially the ones awaiting trail are extremely poor as
one can comprehend from the statistics above. Their poverty and social prejudices attached with
their identity causes great inability in accessing legal help.

Overcrowding of prisons have majorly come into existence because of undue increase in pre trail or
preventive detention. Laws such as those pertaining to sedition, terrorism or national security are
often used excessively and indiscriminately. A reflection on their usage is a need of an hour. The
system of punishment shouldn’t reach the hights of destructiveness for human from which reforms
seems difficult.

Apart from that as already stated delayed trials are due to limitations of judiciary’s capacity to
address as many cases. The judiciary has its own share of concerns such as vacancy in the post of the
judges. For instance, as per the report by the Standing Committee for the Ministry of Law and Justice
regarding the status of judicial appointments in the high courts, despite the sanctioned strength of
1,080 judges, high courts are functioning only with 661 judges, leaving 419 posts vacant. Such
aspects only contribute to the pendency of the cases. By the end of 2021 the Indian court were
burdened with more than 14.4 million cases pending, the pendency percentage was 91.2 that year.
Along with that often judiciary has to step in and rephrase the legislation which has led to increase in
the incarceration of many. For example, in several sedition case, one being the Kedarnath vs State of
Bihar a five-judge constitutional bench stated the scope of the law. The judgement clearly stated that
unless accompanied by incitement or call for violence criticism of the government can not be
labelled as sedition. The ruling restricted sedition to be understood as and when it incites to “public
disorder”. Such a phrase is itself nowhere mentioned in section 124A but was conceptualised by the
court. Despite such rulings, we haven’t yet witnessed recalibration of various such legislations which
are extremely open to subjective interpretation especially when it comes to aspects such as
nationals’ security. Even the law-and-order forces are often ignoring such intricacies and tend to file
FIRs on the bases of various legislations, without understanding the context in which any act has
taken place. Similarly, in in 2015 the Supreme Court had struck down Section 66A of the Information
Technology Act, 2000, yet for years the police forces have continued to arrest individuals on the basis
of the above-mentioned section. The Court reiterated and express its displeasure over the
continuation of the act. Increase in the number of undertrials only stress the need for re-examining
the penal policy and focus on de-criminalisation.

In June 2023, the National Human Rights Commission issues an advisory to states on management of
states which also included filling up vacancies and augmenting the staff strength along with
appropriate training.

Article 21 which focuses on life and liberty has been rendered ineffective in the situation of prison
overcrowding. As stated above the consequence of several undertrial languishing in the prisons has
been at worst death. In addition, the inaccessibility of medical facilities and healthy food as
augmented the concern. State and Judiciary thus need to be cognisant and due measures to address
the issue of prison overcrowding is needed. This would require reforms and guidelines along with a
need to revise the arrest measures taken by the police. A broad definition of what is and what isn’t a
crime is thus also needed.

we have created a police state in which citizens are imprisoned in inhuman conditions which are
counterfeited to the idea of prison as a place of reflecting and suffering for one’s crime. The
collective interest of the society is not improving rather deteriorating. The state of the prisons are
such that many inmates find it extremely difficult to fit into the normalcy of the outside world. The
process of reformation is nullified, the difficulties encountered due to the overcrowding leave a stark
mark in their wellbeing, they then find themselves to be absolute misfit into the society, the social
stigma further perpetuate the problem. The infrastructure is one aspect of the issue, the torture and
treatment that they undergo by the prison authority is another aspect which significantly affects
inmates. Therefore, time has come to redefine the colonial Indian Prison system and amend the
centurion old Prions Act 1894, especially when majority of the inmates in the prison come from
marginalised section.

To look into the matter, in 2018 the Supreme Court formed a committee on Prison Reforms chaired
by former judge, Justice Amitava Roy. Even though the timeline for the completion of the report was
a year, it was in 2022 that the report submitted its findings. In addition to the NCRB statistics
mentioned above the report covered the following details, as per the report the state of women
prisoners has been far worse than the male prisoners. Less than 40% prisons provide sanitary
napkins, and only 18% of female prisoners get exclusive women’s prison facilities, apart from that
only 15 states and union territories have functional women’s prisons. In only 13 states and Union
Territories, there are designated provisions by prison authorities for appointing a complaint officer to
address and deal with the complaints, violation and rights of transgender inmates. Majority of the
states and Union Territories are yet to formulate welfare schemes for transgender prisoners.

The report has some of the following recommendations. It states that the Undertrial Review
Committee (UTRC) mechanism needs to be strengthened to address the issue of overcrowding. The
UTRC set up in each district needs to revive and strengthen its measures to assess the undertrials
sate and the need of their release, along with convicts who have undergone their sentence and are
eligible for remission/release or bail.

Special fast track courts to provide for speedy trial can be an effective tool to address the issue. Fast
track courts can be set exclusively dealing with petty offenses and for cases pending for five or more
years. Not only will this help in dealing with increasing number of undertrials in prison but will also
aid the judiciary and help reduce its burden and prevent it from diverting its resources and attention
for other major concerns. The usage of alternative legal provisions to sentencing such as fine,
probation and admonition which are not being used to their potential should be utilised effectively.
To prevent violence among inmates the committee recommends separation of undertrials and
convicts. The prison staff it self is understaffed and thus needs to fulfil the vacancy at the earliest.
Aling with that it’s imperative that the staff undergoes training in handling inmates without violating
their fundamental rights. In addition to such measures the report also recommended telemediation
or virtual consultation to address the unavailability of medica staff, initiating provisions to allow
inmates to file complaints and to implement measures which leads to sensitisation of prison staff.
Vocational training in collaboration with NGOs can significantly help the state of inmates.

During Covid18 the Supreme Court took measures and stated “the requirement of decongestion is a
matter concerning health and right to life of both the prison inmates and the police personnel
working” In 2020 amidst the national lockdown, the Supreme Court of India issued directions to set
up high powered committees (HPCs) in each state to decongest prisons

Thereafter the Delhi HPC directed that pregnant undertrials or mothers with children will be released
on interim bail for three months. This was a great initiative towards acknowledging the plight of
pregnant women. However, this recommendation fell short as it did not take into account intricacies
such as which trimester each woman was in.

Setting up Permanent Legal Aid Services Unit in all Central and District Prisons is the need of an hour,
as majority of undertrials come from minority communities. The lack of resources delays their
success of being acquitted. Lega aid services by the government can help them secure appropriate
legal services.

Taking guidance from the committee on Prison Reforms chaired by former judge, Justice Amitava
Roy, recently the Ministry of Home Affairs have announced a Model Prions Act 2023 to replace the
130-year-old prison law and to shift the focus of incarceration from “retributive deterrence” to
“reform and rehabilitation”. It rightly introduces measures to address the shortcomings of the
existent law. It seeks to introduce the usage of technology in management of prison, enabling
provisions for the grant of parole, furlough, and remission, and enabling special provisions for
women and transgender inmates. The new act intends to introduce the concept of “attitudinal
change towards prisoners” and initiate measures such as vocational training and skill development
necessary for prisoners for their empowerment and successful reintegration into society. Provisions
such as establishing of high security jails and open, semi-open jails have also been introduced. It has
also introduces separation of convicts and undertrials, sperate accommodation for women prisoners
and transgender and provisions for legal aid. Since prison comes under the State Subject the majority
of the onus of implementation of such acts and recommendation now lies with the state albeit
support from centre is crucial.

With such changes on board one can be optimistic that the state of the prisons which harbours more
than 50% of the marginalised section of the society will improve for the better.
References:-

#DataViz: Prison Occupancy Rose In 2022, Despite Campaign To Release Undertrials by Shreehari
Paliath

76% prisoners are undertrials; ratio is highest in Delhi, J&K by Deeptiman Tiwari, article in Indian
express

NCRB data: Delhi tops crowded prison list; most in for murder and rape by Jatin Anand, article in
Indian express

77 percent of India’s prisoners are undertrials: NCRB by Sreedev Krishnakumar, article in Money
Control

Overcrowding at Arthur Road jail: 300 made to sleep in place meant for 50 by Sadaf Modak, article in
Indian express

Denied basic facilities, women prisoners impacted far worse than men: SC panel on prison reforms
by Khadija Khan, article in Indian express

Mass jailing of undertrials must end by Pratiksha Baxi, article in Indian express

Overcrowding in Prisons: Problems and Solutions by Md. Imran Wahab, article in Legal Service in
India

Model Prison Act 2023 PIB

Prison Laws in India – The forgotten Law by Shagun Bahl, article in ipleaders

For India’s undertrials, the legal process is the punishment by Nandita Rao, article in Indian express

Overcrowding in jails: No solution in sight 50 by Sadaf Modak, article in Indian express

Speedy trial can become effective tool to address overcrowding in jails, says SC panel on prison
reforms, article in Indian express

Supreme Court concerned about overcrowding in prisons, asks HCs to look into issue, article in Indian
express

What is the Model Prisons Act announced by the MHA? by Khadija Khan, article in Indian express