Context: India’s prisons are overcrowded with nearly 70% undertrial prisoners. A large number are languishing in prisons without quality legal aid, and lack of family support. As per Prison Statistics India Report 2019, there were 4.78 lakh inmates in around 1,300 prisons in the country. Most of these prisoners hail from economically poor backgrounds. When the COVID-19 pandemic struck last year, COVID-19 positive cases in prisons became a cause for worry. The Supreme Court took suo motu notice of the situation in the prisons and passed several significant orders, which led to the constitution of high powered committees (HPCs) at the state level, headed by the chairperson of the State Legal Services Authority, to decide on categories of prisoners who could be released on temporary bail and parole to reduce overcrowding of prisons.

• The Jammu and Kashmir High Court on Monday decided to release jail inmates in the union territory on 90 days interim bail in view of the Supreme Court directions. Other states are also taking interest in the matter. In this edition of Big Picture we analyse the need for prison reforms. 

Key Points

• The Supreme Court (SC) of India has ordered the interim release of eligible prisoners in view of the uncontrolled second surge in the raging Covid-19 pandemic.
• The Court’s order aims to decongest jails and a measure that protects the right to life and health of the prisoners.

Important Points of Supreme Court Order

• Emphasised the need to adhere to the norms it had laid down in Arnesh Kumar vs State of Bihar (2014) case.
• Under this case, the police were asked not to effect unnecessary arrests, especially in cases that involve jail terms less than seven years.
• Authorities in all districts in the country to give effect to Section 436A of the Code of Criminal Procedure (Cr.P.C).
• Under the Section 436A of the Cr.P.C, the undertrials who have completed half of the maximum prison term prescribed for the offence may be released on personal bond.
• Suggested the legislature to consider the idea of placing convicts under house arrest to avoid overcrowding of prisons.
• The occupancy rate in prisons climbed to 118.5% in 2019. Moreover, a very large sum of the budget is used for the maintenance of prisons.
• Ordered all States to take preventive steps as well as constitute high-powered committees to determine the class of prisoners who could be released on bail or parole for a specified period.

Status of Indian Prisons

• Indian prisons face three long-standing structural constraints: Overcrowding, Understaffing and underfunding and Violent clashes.
• Under-trial Population: India’s under-trial population remains among the highest in the world and more than half of all undertrials were detained for less than six months.
• People Held Under Preventive Detention: There is the rise in the number of people held under administrative (or ‘prevention’) detention laws in Jammu and Kashmir.
• Unawareness about Section 436A of C.R.P.C.: There is a gap between the number of prisoners eligible to be released and actually released, under Section 436A of the Code of Criminal Procedure.

Constitutional Provision

• State Subject: 'Prisons/persons detained therein' is a State subject under Entry 4 of List II of the Seventh Schedule to the Constitution of India.
• Article 39A: Article 39A of the Constitution directs the State to ensure that the operation of the legal system promotes justice on a basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
• Right to free legal aid or free legal service is an essential fundamental right guaranteed by the Constitution.
• It forms the basis of reasonable, fair and just liberty under Article 21 of the Constitution of India, which says, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
• Article 22 (3) (b) of the Constitution allows for preventive detention and restriction on personal liberty for reasons of state security and public order.

Recommendation for Prison Reforms

• The Supreme Court appointed Justice Amitava Roy (retd.) Committee has given the following recommendations to reform prisons.

For Overcrowding

• Speedy Trial: Speedy trial remains one of the best ways to remedy the unwarranted phenomenon of overcrowding.
• Lawyer to Prisoner Ratio: There should be at least one lawyer for every 30 prisoners, which is not the case at present.
• Special Courts: Special fast-track courts should be set up to deal exclusively with petty offences which have been pending for more than five years.
• Further, accused persons who are charged with petty offences and those granted bail, but who are unable to arrange surety should be released on a Personal Recognizance (PR) Bond.
• Avoid Adjournment: An adjournment should not be granted in cases where witnesses are present and the concept of plea bargaining, in which the accused admits guilt for a lesser sentence, should be promoted.

For Prisoners

• Accommodative Transition: Every new prisoner should be allowed a free phone call a day to his family members to see him through his first week in jail.
• Legal Aid: Providing effective legal aid to prisoners and taking steps to provide vocational skills and education to prisoners.
• Use of ICT: Use of video-conferencing for trial.
• Alternatives: The courts may be asked to use their "discretionary powers" and award sentences like "fine and admonition" if possible instead of sending the offenders to jails.
• Further, courts may be encouraged to release offenders on probation at pre-trial stage or after trial in deserving cases.

Filling Vacancies

• The Supreme Court should pass directions asking authorities to start the recruitment process against permanent vacancies within three months and the process should be completed in a year.
• For Food: Modern cooking facilities and canteens to buy essential items.
• In 2017, the Law Commission of India had recommended that undertrials who have completed a third of their maximum sentence for offences attracting up to seven years of imprisonment be released on bail.

Key Terms

• Undertrials: These are the people who are yet to be found guilty of the crimes they have been accused of.
• Preventive Detention: The imprisonment of a person with the aim of preventing them from committing further offences or of maintaining public order.
• Article 22 (3) (b) of the Constitution allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
• Further, Article 22 (4) states that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless:

An Advisory Board reports sufficient cause for extended detention.

• Such a person is detained in accordance with the provisions of any law made by the Parliament.
• Personal Recognizance (PR) Bond: It is also known as Own Recognizance (OR) bond, and sometimes referred to as “no cost bail”. With this type of bond, a person is released from custody and is not required to post bail.
• They are, however, responsible for showing up on their specified court date, and must sign a release form stating this promise in writing.
• The person is then released from custody based on their promise to appear in court and abide by any conditions of release set by the court.

Road Ahead

• Prison Reforms like many other is really the need of hour. Over the years insted of progressing we had only regret with regards to the states of Prison. The prisoners to need to have humane living conditions. Lets not forget most of those who are in Prison are under trials and not ardent criminals. We also need to make distinction between various type of prisoners and keep them away from each other, so that true reforms can take place of the prisoner as well.