Jail inmates/ prisoners and the law: India

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This is a collection of articles archived for the excellence of their content.



Contents

A: The inmates

Educational profile

2019

Sandeep Rai, October 8, 2020: The Times of India

Over 28% of all inmates lodged in 1,387 jails across the country are illiterate while 41% of prisoners have not completed their Class X, according to the latest statistics released by the National Crime Records Bureau for the year 2019.

Of 3,30,487 prisoners lodged in Indian jails, 21,042 are graduates. At least 28% or 94,533 inmates are illiterate while 1,34,749 — more than 41% — have not done their matriculation.

The country’s most populous state, Uttar Pradesh, led on several counts. Out of 94,533 illiterate inmates, 23,923 are lodged in the state’s jails. West Bengal is a distant second with 9,453 inmates followed closely by Bihar with 9,356 prisoners. Uttar Pradesh jails are also home to the maximum number of inmates who have not been able to reach Class X. Out of 1,34,749 such inmates countrywide, the state has 25,702 of them, followed by Bihar at 12,591.

According to the NCRB report, 69% of prisoners in the country’s jails are undertrials. Many of them are from unprivileged backgrounds who can ill afford a good legal representation and often spend decades in the jail as undertrials before being acquitted by any court, say experts.


B: The law

Sandeep Rai, 28% of prisoners in India illiterate, NCRB data show, October 8, 2020: The Times of India

Over 28% of all inmates lodged in 1,387 jails across the country are illiterate while 41% of prisoners have not completed their Class X, according to the latest statistics released by the National Crime Records Bureau for the year 2019.


Of 3,30,487 prisoners lodged in Indian jails, 21,042 are graduates. At least 28% or 94,533 inmates are illiterate while 1,34,749 — more than 41% — have not done their matriculation.

The country’s most populous state, Uttar Pradesh, led on several counts. Out of 94,533 illiterate inmates, 23,923 are lodged in the state’s jails. West Bengal is a distant second with 9,453 inmates followed closely by Bihar with 9,356 prisoners.

Uttar Pradesh jails are also home to the maximum number of inmates who have not been able to reach Class X. Out of 1,34,749 such inmates countrywide, the state has 25,702 of them, followed by Bihar at 12,591.

According to the NCRB report, 69% of prisoners in the country’s jails are undertrials. Many of them are from unprivileged backgrounds who can ill afford a good legal representation and often spend decades in the jail as undertrials before being acquitted by any court, say experts.


UP tops list of max no. of engineer, postgrad inmates

Sandeep Rai, 28% of prisoners in India illiterate, NCRB data show, October 8, 2020: The Times of India


UP has the highest number of prisoners who can boast of an engineering or a postgraduate degree, the NCRB ‘Crime in India’ 2019 report has revealed. Of 3,740 prisoners holding a technical degree or diploma in engineering, 727(20%) are lodged in UP jails followed by 495 in Maharashtra and 362 in Karnataka, reports Sandeep Rai. The state also tops the chart for housing the maximum number of postgraduates — 2,010 out of 5,282 nationwide — in its jails.

As per UP’s director general, prisons, Anand Kumar, a large chunk of technical graduates have either been convicted or are facing charges of dowry deaths and rapes. Overall, of the 3,30,487 inmates in Indian jails, postgraduates comprise 1.67% while 1.2% are engineers. “Prisoners with engineering or technical background are helpful in upgrading technology in jails. For instance, many engineers have developed e-prison modules in the jail.They have also played a key role in the installation of jail radios within the premises, while some are involved in e-literacy programmes,” Kumar said.

Handcuffs

Detainees need not always be handcuffed

Dec 8, 2019 Times of India


Though Supreme Court has time and again disapproved of handcuffing of undertrial prisoners and convicts, terming it an inhuman practice, it has provided for exceptions that could have been relevant in the case of four men who were gunned down by the police in Hyderabad.

The apex court in 1995 in ‘Citizens For Democracy Vs State Of Assam’ passed a slew of directions on procedures to be followed while handcuffing a prisoner. Holding minimal freedom of movement, which even a detainee is entitled to under Article 19, cannot be cut down by application of handcuffs or other hoops, the court issued directions for police and jail authorities on handcuffing an accused. The court held that police and jail authorities, on their own, shall have no authority to direct hand-cuffing of any inmate of a jail or during transit from one jail to another or from jail to court and back. This direction, however, may not have adequately considered the violence that sometimes breaks out in police vans among undertrials or convicts.

In a direction relevant to the Hyderabad case, the court said where police or jail authorities have a wellgrounded basis for drawing a strong inference that a prisoner is likely to jump bail or break out of custody, the prisoner be produced before a magistrate and a prayer for handcuffing be made. In Hyderabad case, since all four suspects were being taken to the crime spot, such permission might have been sought.

In other circumstances, as where a person arrested by the police, is produced before the magistrate and remand — judicial or non-judicial — is given, there shall be no handcuffing unless special orders are obtained from the magistrate. Similarly, a person arrested in the execution of an arrest warrant must not be handcuffed unless prior permission has been taken from the magistrate.

The Supreme Court has held handcuffs must be the last refuge, not the routine regimen.

Mental health

2022

Ambika Pandit, March 21, 2022: The Times of India


New Delhi: Behind the walls of jails across India, mental health issues affect a substantial number of inmates. According to the latest ‘Prison Statistics India’ report, as many as 7,524 inmates were reported to be suffering from mental illness in 2020. Of the 1,887 inmates who died in prisons that year, 189 (10%) were victims of unnatural causes with suicides being the cause in case of as many as 156 inmates.


While percentage wise, those suffering from mental illness accounted for 1. 5% of the 4. 88 lakh inmates lodged in various prisons as on December 31, 2020, the data helps bring into focus the little discussed subject. Of those suffering from mental illness, over 42% were convicts, 57% were undertrials and 0. 6% were detenues.

The data on deaths shows from 2015 to 2020 natural deaths accounted for over 85% of all deaths in prisons. Out of the 1,642 natural deaths in 2020, 1,542 were due to illness and 100 deaths due to aging. Out of the total deaths due to illness, most of the deaths were reported due to heart problems (480) followed by lung ailments (224) and kidney problems (92).

Among 189 unnatural deaths in prisons, death by suicide makes up for 82. 5% of such deaths. Data from 2015 to 2020 shows the number of unnatural deaths in 2020 was higher than the numbers reported in the previous three years. In 2016, 231 deaths were reported in this category which was highest in this five-year period.

As far as hospital visits go, in the chapter on reasons for movement of prisoners outside jails, it is pointed, that over 3. 6 lakh times inmates went outside for medical attendance in 2020. The number of visits was much higher in 2019 as inmates went to hospitals for medical issues over 4. 8 lakh times.

Religion, caste and the prison population

As in 2018

January 15, 2020: The Times of India

Detainees, undertrials and convicts, by caste and religion, respectively, 2009- 18;
 % share of total population and inmates, state-wise
From: January 15, 2020: The Times of India


People from marginalised sections — Muslims, dalits and tribals — are over-represented in Indian jails, shows a recent National Crime Records Bureau report. The 2011 Census shows that the proportion of Muslims, dalits and tribals in India’s population is 14.2%, 16.6% and 8.6%, respectively. 


But, it is a completely different picture when it comes to undertrial inmates. They make up three-fourths of the total prison-population with 19.7% Muslims, 21.6% dalits and 11.8% tribals.


This problem is not India centric. Almost all countries show similar patterns. For example, in 2017, US jails had 33% Blacks, who were only 12% of the population. Similarly, Hispanics made up 23% of the total inmate population, while accounting for 16% of the adult population. 


Detainees


Most of the detainees are held for offences against public tranquillity or as a preventive measure. In four of the 10 years for which this data was analysed, Muslims accounted for over 30% of the detainees — more than double of their share of the country’s population.

Undertrials


The combined proportion of SCs and STs is a little over 25% in India’s total population. When it comes to undertrial population, it was around 35% for many years. Muslims make up 14% of India’s population but constituted about 20% of all undertrials. The number of undertrial prisoners rose from 2,93,058 in 2016 to 3,23,537 in 2018, or 10.4%. At the end of 2018, the states with most number of undertrials included Uttar Pradesh with 75,206, followed by Bihar at 31,488 and Maharashtra at 26,898, respectively.

Convicts


On convictions, there is a decline in proportion of Muslims, while Hindus make up a higher proportion of convicts. This may be because of higher acquittal rates of Muslim undertrials.

How the states fare

In Uttarakhand, Gujarat and Maharashtra, the share of Muslim undertrials was over 19% of their share in the overall population. In states like Odisha, Punjab, Chhattisgarh and Kerala, the number was far lower compared with the population.

According to NCRB 2018 report, the incidents registered under the Scheduled Caste and Scheduled Tribe acts saw a decline from 6729 incidents reported in 2017 to 4816 in 2018. Among those in jails, the scheduled tribes community was over-represented in Assam, followed by other states like Andhra, Maharashtra, Uttarakhand and Gujarat.

In Gujarat, Maharashtra and Assam, the gap between the share of undertrial Scheduled Castes and their share of the population was over 10%.

Source: NCRB 2018, Census 2011

  • The data for Maharashtra is from 2016 as data is not available for 2017


As in 2022

Bharti Jain, Sep 4, 2022: The Times of India

Religion wise break up of prisoners in 2020, all India except Maharashtra
From: Bharti Jain, Sep 4, 2022: The Times of India

NEW DELHI: The share of Muslims in India’s total prison population – comprising convicts, undertrials, detenues and others -- declined to 18.7% in 2021 from 20.2% in 2020, even though the percentage of Hindus rose to 73.6% from 72.8% over the same period, according to latest all-India prison statistics released by the National Crime Records Bureau (NCRB).

As on December 31, 2021, the percentage of Sikhs in the country’s prison population increased to 4.2% from 3.4% at the end of 2020; while that of Christians fell marginally to 2.5% from 2.6% in the relevant timeframe. In absolute terms too, there has been a rather sharp rise in the number of Sikh prisoners, from 15,807 on December 31, 2020 to 22,100 on December 31, 2021.

Census 2011 had returned the share of Hindus in India’s population as 79.8%, that of Muslims as 14.2%, of Sikhs 1.72% and of Christians, 2.3%.

Overall, the total number of inmates in prisons has increased by 28% from 4.33 lakh to 5.54 lakh between 2016 and 2021. Among the inmates, the number of convicts during 2016-2021 decreased by 9.5% whereas the number of undertrial inmates was up by 45.8%. The number of detenues climbed 12.3% during this period.

Of the 5.54 lakh persons lodged in prisons across the country on December 31, 2021, 4.27 lakh were undertrials, 1.22 lakh convicts, 3,470 detenues and 547 ‘others’.

As per the religion-wise breakup available for 5.22 lakh of the total 5.54 lakh prisoners across India (as Maharashtra did not submit the breakup for undertrials and detenues to NCRB), over 3.84 lakh were Hindus, 97,650 Muslims, 22,100 Sikhs, 13,118 Christians and 4,785 from other faiths.

Muslims as a percentage of convicts imprisoned across the country fell to 15.9% in 2021 from 17.4% in 2020; as percentage of undertrials to almost 18% from 19.5%; and as percentage of detenues to 27.7% from 30.7%.

Nearly 48% of the undertrials lodged in the country’s prisons as on December 31, 2021 were in the 18-30 years age group, while 41% were aged 30-50 years.

The share of Muslims among convicted prisoners at the end of 2021 was highest in Assam (60.5%), Maharashtra (25.5%) and Telangana (21.7%) and UP (20.22%). Over 68% of the jailed undertrials in J&K on December 31, 2021 were Muslims; as were 49.3% of the undertrials in Assam (down from 52% in 2020), 42.8% in West Bengal (down from 43.5%), 31.3% in Kerala, 29.6% in Uttarakhand, 28.4% in Delhi and 25.89% in UP.

The statewise breakup of detenues is even more interesting; with all 41 detenues lodged in Haryana’s jails being Muslims. Also, 78.5% of the total detenues in West Bengal and 56.7% in UP on December 31, 2021, were Muslims, as per NCRB prison statistics for 2021.

Of the total 4.27 lakh undertrial prisoners, 71% were confined for periods up to 1 year as on December, 2021, including 48% for up to 3 months. While 56,233 undertrial prisoners (13.2%) were confined for 1-2 years; 32,492 (7.6%) had spent 2-3 years in prison; 24,033 (5.6%) 3-5 years; and 11,490 more than five years.


Rights, legal

Medical treatment, the best

Shishir Arya, Sep 10, 2022: The Times of India


NAGPUR: Allowing former journalist Prashant Rahi, serving life sentence on the charge of being a Maoist, to be examined by a gastroenterologist, the Nagpur bench of Bombay high court has observed that “even a convict is entitled to best of the medical treatment”.

Rahi (63), who was convicted in 2017 under the Unlawful Activities (Prevention) Act in a case in Maharashtra involving Delhi University professor Sai Baba, is lodged in Amravati central jail. Allegedly a member of the banned CPI (Maoist), he was arrested in 2013 and charged under UAPA. He was the Uttarakhand correspondent of a Delhi-based English daily.

His daughter Shikha Rahi had filed a plea stating that her father was suffering from stomach ailments and urgently needed to be treated by a specialist.

In its order on Thursday, a division bench of justices Rohit Deo and Anil Pansare said, “Conviction does not dilute either the constitutional right under Article 21 or the basic human rights, one of the facets of which is that the convict received appropriate treatment.”

The court directed the government to submit a report on Rahi’s medical status during the next hearing which is scheduled on September 12.

Shikha moved the HC after she received two letters from Rahi speaking about his health condition.

In her plea, Shikha contended that even though the jail medical officer provided some treatment to her father, he continued to suffer from abdominal pain, vomiting and loose motions and needed diagnosis by a specialist.

She said the jail food contained excessive spices and palm oil. Rahi had suffered bouts of diarrhea earlier and was twice severely dehydrated. Later, instructions were given to provide him with a plain diet, but even that contained too much palm oil, the plea stated.


Delhi’s clinic

Aamir Khan, Court clinics to offer free legal aid to visiting inmates, September 25, 2017: The Times of India

Jail inmates brought to district court complexes in the city, August 2017;
From Aamir Khan, Court clinics to offer free legal aid to visiting inmates, September 25, 2017: The Times of India


In a first, over 4,000 jail inmates visiting lockups at various Delhi court complexes every month, will be able to avail of free legal aid through `clinics' set up by Delhi State Legal Services Authority (DSLSA).The first of these clinics will be inaugurated in Dwarka.

The aim of the clinics is to provide legal help to the accused or convicts who otherwise are unable to discuss their cases with lawyers due to paucity of time or other constraints, besides enabling free legal aid to those who cannot afford it. Even those who already have free legal aid lawyers can find space for interaction.

DSLSA member secretary Sanjiv Jain said, due to several constraints, legal aid lawyers are unable to visit the jails and interact with their clients before the evidence is recorded or argu ments begin in the trial.“Many inmates do not get a legal representation as a result. The clinics will make things convenient for both lawyers and inmates,“ he said.

When an inmate is produced in court, they are first taken to the lockup in the re spective court complex. Delhi has six court complexes with lockups.

Additional secretary Naveen Gupta recognised these lockups as the best place for the clinics to come up. “The inmates can be made aware of other rights that not only an accused can exercise during investigation or trial but also a prisoner in custody,“ he said.

DSLSA has decided to depute one legal aid counsel from 10am to 5pm every day at these clinics. The lawyer will be available even on weekends and public holidays. They will be paid an honorarium equivalent to a front office advocate on the DSLSA's panel.

Sentence review/ Sentence Review Boards

HC: Convicts freed at ‘whims’ of review board

HC: Convicts being freed at ‘whims’ of review board, December 14, 2018: The Times of India


Delhi high court expressed concern at the manner in which convicts were being granted premature release on the “whims and fancies” of the Sentence Review Board (SRB).

A bench of Chief Justice Rajendra Menon and Justice V K Rao said there has to be “transparency” in the process while hearing a public interest litigation (PIL) seeking fairness and impartiality in the functioning of SRB while dealing with the issue of premature release of convicts.

“A convict should know why he or she is not being released while another was being released,” the bench said while issuing notice to Delhi government and seeking its stand on the plea by advocate Amit Sahni.

HC also referred to the “apprehension or likelihood” of bias against certain prisoners based on caste or religion, as alleged in the plea while seeking the government’s stand.

The PIL seeks a transparent process, the court said, and asked the Delhi government if it did not agree with the points made in the plea, it should give alternatives “to ensure transparency”.

Senior advocates Sanjay Jain and Hariharan, appearing for Sahni, questioned how the SRB was dealing with the issue of premature release. They also suggested that names of convicts, who are seeking premature release, be masked with numbers so that their caste or religion is not known to the SRB and to avoid “extraneous consideration.”

“Right to legal representation must be also given to the convict, whose cases are placed before the SRB for the purpose of consideration for premature release. Meetings of SRB must be videographed to ensure transparency in its working and functioning,” the PIL said, adding that the entire material placed before SRB — police reports, reports from jail, nominal rolls, report from social welfare department and other documents — must be forwarded to the LG for an independent decision if recommendations of the board are based on the material considered by it or not.

The petition also mentioned an instance where one inmate, Sikander Singh, died in jail awaiting the decision of SRB. It said the convict had already undergone more than 28 years of incarceration and his detention beyond 25 years was illegal and uncalled for.

Sex with partners

Ajay Sura, Jan 07 2015: The Times of India


HC allows jail inmates to have sex with their partners

In a historic verdict, the Punjab and Haryana high court has allowed jail inmates to have sex with their partners in prison as long as they are married and want to have a child. The court, in an order made public on Tuesday, held that conjugal visits or artificial insemination for progeny was a fundamental right of jail inmates.

Justice Surya Kant passed these orders while disposing of a petition filed by a couple, Jasvir Singh and Sonia, who are lodged in the Central Jail, Patiala, and who demanded conjugal rights for progeny. They were awarded death penalty by a trial court for kidnapping and killing a 16-year-old boy for a hefty ransom.

While the court denied the couple’s plea due to the heinous nature of the crime, it enlarged the petition’s scope in larger public interest. The judge held that right to life and personal liberty under Article 21 of the Constitution includes the right of convicts and jail inmates to have conjugal visits or artificial insemination as an alternative.

“A society which is currently involved in academic and intellectual debates on ‘gay-rights’ or the recognition of ‘thirdgender’ cannot shy away nor can it keep concealed under the carpet the pragmatic concept of conjugal visits of the jail inmates,” the court observed. “To say it differently, time has come and before it is too late, the stake-holders must sit together and deliberate upon this crucial subject and take a holistic view.” The court, however, held these rights were to be regulated by law and were the sole prerogative of the state. For this, the court ordered the constitution of a jail reforms committee to be headed by a retired high court judge. The committee would formulate a scheme for creation of an environment for conjugal and family visits in jail. forms committee to be headed by a retired high court judge. The committee would formulate a scheme for creation of an environment for conjugal and family visits in jail.

Wages

 Deducting wages as per law permissible: HC

Nov 22, 2019: The Times of India

Observing that there is nothing wrong in deducting wages of prisoners for the victim welfare fund provided it is permitted under the statute, Delhi high court said it can’t, however, be done through executive action.

A bench of Chief Justice D N Patel and Justice C Hari Shankar said such deductions are permissible as long as done under the Delhi Prison Rules of 2018.

The court’s remarks came after Delhi government informed it that the practice was stopped in December last year, after the high court had directed that the same be put on hold. The government submitted that the Delhi Prison Rules of 2018, Rule 96(8) provided for such deductions.

The petitioner in the case, however, opposed the deduction saying various high courts in the country have done away with the practice and highlighted that of the Rs 15 crore collected in this manner since 2006, more than Rs 14 crore lay unutilised.

He said the amount lying unutilised can be used for welfare of children whose parents are incarcerated, as suggested by the Delhi State Legal Services Authority (DSLSA), as there is already a victim compensation fund set up by Delhi government for compensating victims of various crimes.

The bench said it will continue hearing arguments in the matter on November 26. In her plea, Katyayini, a lawyer, has sought quashing of an amendment made in the Delhi Prison Rules of 1988 — adding Rule 39A — which mandated the deduction. Subsequently, the 1988 rules were replaced by the 2018 rules, which also has a similar provision.

Meanwhile, DSLSA has also opposed the deduction for creating a victim compensation fund, saying it was “not reasonable or justified” as the AAP government has now created a scheme for victims.

The PIL has claimed that of the over Rs 15 crore collected since 2006 from wages of convicts lodged in Tihar Jail, approximately Rs 80.7 lakh has been disbursed to 194 eligible victims.

See also

Bail: India

Jailbreak: India

Jail inmates and the law: India

Jails/ Prisons: India

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