India’s prisons need administrative reforms

The Delhi High Court was recently dismayed when a prisoner, who had been granted bail, was not released from prison merely because there was some administrative delay in his age verification. The Orissa High Court had recently expressed concerns regarding the condition of prisons in the State where there was only one psychiatrist to attend to all the mentally ill prisoners in the state. The Supreme Court, too, recently heard a case where a convict, who was sentenced to 7-years rigorous imprisonment had undergone custody for more than 10 years and had still not been released from prison.

These cases highlight, once again, the need to reflect upon the larger issues plaguing prison administration in the country. Wrongful prosecution and illegal incarceration inside Indian prisons have now become a norm. So much so, that the Delhi High Court in 2017 had to call upon the Law Commission of India to undertake a comprehensive examination of the issue of “relief and rehabilitation to victims of wrongful prosecution and incarceration”. The Commission, in its 277th Report, pointed out, among other things, that India’s prisons are home to one of the world’s largest undertrial populations, many of whom are acquitted by the courts years after their incarceration. It goes without saying that the horrors of such wrongful incarceration inflict unimaginable physical and emotional trauma on the victims, for whom the very process of seeking justice and fighting against the mighty state becomes a punishment.

Larger issues such as overcrowding of prisons, unhealthy living conditions, shortage of staff, inadequate training programs for prison officials, poor budgetary allocations, insufficient and fractured legal aid, physical, mental and sexual abuse of prisoners, custodial torture, suicides, corruption, lack of a statutory right to compensation and fractured post-release care and rehabilitation mechanisms, have constantly been raised for years now.

SC to the rescue?

Despite the Supreme Court has upheld the rights of prisoners to live with dignity and having evolved a ‘compensatory justice jurisprudence’ to provide compensation to those inmates whose constitutional and statutory rights have been violated, enough evidence exists to show that these judicial precedents have neither deterred nor impeded frequent violations.

The institutionalisation of systemic violence against prison inmates and violation of their constitutional rights is followed by a constant normalisation of administrative negligence and dereliction of duty by prison authorities who advocate for harsher treatment of prisoners. They also promote discrimination inside the prison on the basis of caste, gender, class and community, further accentuating miscarriage of justice.

This shows that India’s prison administration, as a class, has systematically engaged in violating core fundamental constitutional provisions. The problem, therefore, is deeper than it may seem. Needless to say that a solution to such a grave crisis cannot be episodic, symbolic or top-down. It has to be meaningful and bottoms up.

Introducing Pattern-or-Practise Investigations (PoP Investigation) against prison administration, on lines of the United States that first introduced PoP Investigations in 1991 to initiate police reforms, could be key to solving the crisis inside our prisons.

The focus of PoP investigations is on finding whether an agency or an authority, as a class, has systematically engaged in a certain kind of activity. Do its actions form a pattern or behaviour and is it embedded in routine practices of misconduct as opposed to isolated or sporadic instances of wrongdoing? PoP investigations are different from criminal prosecutions against individual officers where the focus is on a specific incident.

Once a pattern or practise is identified, there is a preliminary enquiry against the erring department and if sufficient evidence exists then a formal investigation is initiated.

Such an investigation will involve an in-depth comprehensive evaluation of the practices of the department through detailed interviews, gathering information from all stakeholders, assessing systemic deficiencies that contribute to such persistent patterns or practises, evaluation of the department’s training and curriculum programmes, its written policies, rules, regulations and code of conduct and the systems in place (if any) for monitoring and supervising their officers. One of the most critical parts of the investigation is hearing directly from the community members who have little to no representation in state-sponsored reports.

PoP investigations help identify systemic deficiencies and subsequently pitch for the right set of interventions. They enable remedies that form the foundation for a constitutional functioning of an administration by attempting to rebuild trust.

Once the investigation is complete, it ends with a negotiated agreement which is subsequently given legal status by court order and is overseen by an independent authority. If such a negotiation seems impossible, the investigating authority reserves the right to initiate a lawsuit against the erring administration to enable an agreement.

PoP investigations against the prison administration as a whole could be a starting point to reconcile with those who have been historically wronged and whose concerns have clearly been shelved forever. A just and humane prison administration is a sine qua non in a constitutional democracy where the Rule of Law is supreme.

(The writer is a Delhi-based lawyer)