PRISONS ACT

INTRODUCTION

The Prisons law of India is amongst the forgotten laws of this country which has
lost its existence so significantly that neither the law makers of this country nor the
mighty political system gives it any value in order to get reformed within today age
and time. There is lacuna of stringent legislation for prisoners who also deserve life
to be led with the basic human respect which we all are entitled to being citizens of
this country despite the wrongdoings they have committed. The prisoners kept in
jails are kept in inhuman conditions and are deprived of even basic human
amenities like healthy sanitary conditions and lack of proper food, bedding and
clothing facilities. The real pragmatic change in criminals kept in prisoners and
solitary confinements can be brought by using reformative measures in prisons
rather than trying to tame them by authoritative means like animals kept in zoo.

THE PRISONS ACT, 1894

AN OVERVIEW

The Prisons Act 1894 is one of the oldest piece of legislation in India dealing with
laws enacted in relation to prisons in India. This Act was enacted on 22 nd March ,
1894 and enforced on 1st July, 1894. This act contains 62 sections and XII
Chapters and it is an exhaustive act which contains law relating to smooth
functioning of prisons.

 This act defines the term prison inclusively as buildings maintained by state
governments with the purpose to detain prisoners. The act also categorizes
prisoners as “criminal “, “civil” and “ convicted” prisoners.
 The Chapter II of the Act deals with maintenance and officers of prison. It
deals more with appointment of staff including superintendent, medical
officer, jailer and officer like inspector general under whose charge the
prison will work efficiently. The inspector in – charge will be bound to
carry the functions to run the prison in manner as directed by the state
authorities. The state authorities have to make proper arrangements for
accommodation of prisoners and this act also make provisions to deal with
natural calamities like epidemics wherein the prisoners are provided safe
custody and temporary shelter during that period on directions of
inspector- in charge.

 The Chapter III of the Act deals with duties of officers of the prison as
enumerated under Section 8 to 20. Superintendent, jailer and medical
officers shall constitute officers of the prison who all are responsible to
run the prison in an efficient manner. Superintendent of the prison who is
ought to comply orders of Inspector General shall look into matters
relating to labour, discipline , punishment , expenditure of prison as well
has to maintain records of prisoners.

 Medical officer of prison shall be in subordination to superintendent and is

responsible to carry out following functions with respect to sanitary
conditions, health, treatment of prisoners, reporting to superintendent with
respect to prisoners seriously affected with a disease etc. Apart from this
medical officer shall also keep record of all particulars such as health,
diet, diseases and date of death of deceased prisoner. Jailer of the prison
who is subordinate to Superintendent shall maintain all records and shall
be in-charge of prison and documents. Jailer shall also be assisted by
deputy or assistant jailer. The Jailer of Prison is also responsible to always
 reside within the premises of prison and shall not leave prison without
prior intimation.

 The Act also creates posts for prisoners such as convict prisoners who shall
function and carry responsibilities within prison premises and shall
deemed to be public servants. Section 9 of the Act strictly prohibits jail
officers to carry commercial activities within jail premises.

 The Chapter IV of the act deals with admission, removal and discharge of
prisoners. The essentials of this chapter covers that convicts entering into
prison shall be thoroughly checked and all their belongings shall be kept
in custody of jailer and the female convicts shall be checked only by
female officers.

 The criminal convicts shall be examined by medical officer and marks and
wounds on his body shall be recorded. Prisoner shall only be removed
from prison premises if in the opinion of medical officer he suffers with
acute disease.

 Chapter V deals with discipline of prisoners, it lays few essentials i.e. that
male prisoners shall be separated from female prisoners, convicted
prisoners from under trial prisoners, prisoners under age of 21 shall be
kept separately, prisoners sentence with death sentence shall be kept
separately from all others.

 Civil or an under trial prisoner shall have an access to commodities from

outside the prison subject to examination of the goods being received.
Such prisoners shall provide themselves with clothing’s and bedding\’s.
No part of food, bedding or clothing belonging to civil and under trial
prisoner shall allow to be transferred to convicted prisoners.
 Chapter VII deals with employment of prisoners. Civil prisoners are
permitted to work after permission from superintendent and shall receive
earnings for the work done. A criminal prisoner shall not work for more
than nine hours and shall work only in case of emergency. All prisoners
convicted for simple imprisonment shall be made to work within the
premises.

 The Act also lays directions as to taking care of health of prisoners within
the prison premises. Prisoners shall be subject to regular medical check-up
and sick prisoners shall be provided with proper medical care and
attention.

 Sections 42 to 54 deals with offenses relating to prison. Section 42 lays out

that any person who being into or removes from prison prohibited articles,
abets offenses prohibited under act or communicates with convicted
prisoners shall be punished with imprisonment of six months or with fine
of rupees two hundred or with both.

 Prison offence are enumerated under section 46, which shall include wilful
disobedience of prison rules, use of criminal force or threatening
language, indecent behaviour, refusal to work, causing damage to prison
property or documents, preparation or conspiring for escape etc, offenses
committed under the section shall be punishable under sections 46 and 47
of the Act.

 Section 52 lays out that in case a prisoner is in a habit of committing heinous

crime time and again, he shall be forwarded to District Magistrate or any
other Magistrate of first class by superintendent.
  The act under section 54 lays punishment for offenses committed by prison
subordinates.

CRITICAL ANALYSIS OF THE PRISONS ACT, 1894

The Prison Act 1894 deals more with the smooth functioning of prison rather than
reformation and rehabilitation of prisoners. This act has colonial approach which
deflects with the contemporary ideology of reformation of prisoners on
humanitarian grounds in order to change their heart and mind to become
responsible citizens rather than to advocate punitive and disciplinary measures of
taming them in prisoners like animals in zoo. The prisoners should not be just left
on its own in prison to just languish and suffer like dead creatures but should be
treated with respect of a human being.

INCOMPETENCIES – THE REAL PICTURE OF PRISON

According to the statistical reports 80% of prisoners are victims are under trials
who are kept in inhuman conditions where they have to face poor conditions , lack
of proper medical facilities and are subjected to torture by jail authorities .

There are statutory legislation such as the Prisoners Act, 1894 and various
precedents which have been laid down in landmark cases which provide for the
rights which these prisoners are entitled to but the time again it has been proved
that these centurion old laws are futile in today’s age and time to deal effectively
with prisoners right and to reform them in a humanitarian manner.
Nobody thinks about the social stigma the prisoners have to face all their life and
perhaps they can never become as normal citizens of this country ever after some
because of the path they chose for themselves and other because of lack of
reformatory measures in jails which never reform them as individuals who can
contribute to the society in the outside world.

ISSUES OF CONCERN

 80% prisoners are under trials

 Even though bail is granted, prisoners are not released.

 Lack or insufficient provision of medical aid to prisoners

 Callous and insensitive attitude of jail authorities

 Punishment carried out by jail authorities not coherent with punishment

given by court.

 Harsh mental and physical torture

 Lack of proper legal aid

 High amount of surety ordered by courts which indigent prisoners can’t pay

 Rejection of surety bonds due to lack of money or verification of addresses,

as indigent prisoners don’t have houses.

 Corruption and other malpractices.

REFORMATORY MEASURES – PRISONERS RIGHTS

The rightful treatment to the prisons can be achieved by the law makers by
implementing the rights given to them by virtue of acts like Prison Act , 1894 and
other precedents in confluence with advocates , social activists and NGO initiatives
by safeguarding their access to free legal aid services by filing their bail
applications and legal assistance to under trails who are languishing in jails without
proper trials which is the most gross injustice to the prisoners inside jail who have
to fight for their survivals in jails without a legal trial , maternity help given to
female prisoners in jail so that they can carry the child safely, therapy sessions
should be conducted in jails for prisoners in order to ensure that they don’t break
psychologically inside the prison cells, monetary assistance given to indigent
prisoners and their families to fight for their survival inside the jail.

The prisons are made for reformatory purposes not to break their inner self so
blatantly that they can never fit into their normal self in outside world ever
after .The reformation is not seen in prisoners when they get released out of jail
cells as they become absolute misfits in the society after suffering from inhuman
tortures and adding to their misery the social stigma they have to live with as they
are never accepted neither by society nor by their own families. It is hard to picture
their plight in light of the incompetent infrastructure present in prisons and
inhuman treatment they have to suffer at the hands of prison authorities.

POSITIVE OUTLOOK – THE APPROACH TO BE

As the famous quote given by father of our nation Mahatma Gandhi as “Hate the
crime not the criminal” shall be the approach kept in mind in reforming
prisoners. A prisoner shall be sent to prison for the punishment and not as a
punishment to deprive his personal liberty and privacy. The punitive punishment
system should not reach the pinnacle level of destructiveness for human beings
from which they can never be reformed. It is also essential to ameliorate
environment of the prisons and to value humanitarian needs of prisoners so as to
ensure that prisons do not create hardened criminals .It is essential to rehabilitate
and socialize prisoners in view to help the prisoners to become responsible and
potential citizen of this country.

The time has come to unlock the colonial Indian prison system and amend the
centurion old Prison Act 1894 as its obsolete and not in tune with modern day and
age where the reformation is required not only of prisons but also the prisoners
who shall be equipped with basic fundamental rights which this nation grants to its
every citizen.

PRISON LAWS IN INDIA : A SOCIO-LEGAL STUDY

Introduction The system of prison administration in our country is more than 100
years old. If one looks back one cannot but be impressed with the vast change
made during this period. The innovation, while still halting and employed only in
some and not in all the prisons of the country, nevertheless give promise of the
system of treating offenders. Gone are now many of the brutal methods of
treatment yielding place to several new methods including outdoor labour,
facilities for higher education, recreational and correction plans, group work and
payment of wages. Attempts are now being made to treat the prisoners under less
repressive discipline and with greater freedom.

Administration of prisons and reformation of prisoners has been a matter of intense

debate and sharp criticism at various public fora. Hon'ble Supreme Court of India
in the recent years has come down heavily on the inhuman and degrading
conditions in prisons. In many states, the problems of dilapidated prison structure,
overcrowding and congestion, increasing proportion of undertrial prisoners,
inadequacy of prison staff, lack of proper care and treatment of prisoners, etc.,
have been engaging the attention of the press and social activists. With a growing
advocacy for the protection of human rights in the various walks of lives, the plight
of prisoners has emerged as a critical issue of public policy.

CONCEPT OF PRISONS

A prison also known as gaol or jail is a place in which people are physically
confined and usually deprived of a range of personal freedoms. The Online Oxford
English dictionary defines prison as, “A building to which people are legally
committed as a punishment for a crime or while awaiting trial.”

In our country “Prison” falls under state subject in List II of the Seventh Schedule
to the Constitution of India. The administration of Prisons falls in the hands of the
state Governments, and is governed by the Prisons Act, 1894 and the Prison
Manual of the respective State Governments. Thus, States have the primary
responsibility and authority to change the current prison laws, rules and
regulations. Prisons are the public institutions and therefore they must perform the
function assigned to them by law.

The law declares simply and precisely that if individuals are convicted of crimes,
they shall be placed on probation, fine, or undergo a sentence of imprisonment.
Men are thus sent to a prison as punishment. Strictly speaking, the law sends them
not to be reformed but primarily to be held in safe custody.

Thus we can safely say that till the last century the idea has been to keep the
prisoner in safe custody alone. The recent tendency now is, of course, that prison
system is meant for reformation of the prisoners that they may return to society as
useful members and this function of the prison is now termed as discipline.
 HISTORICAL PERSPECTIVE

Penal institutions are places where persons whose liberty have been curtailed by
law are confined to assure the successful administration of justice or the
application of penal treatment. Three epochs may be distinguished in their history.
During the first, which lasted until the middle of sixteenth century, penal
institutions were chiefly dungeons of detention rooms in secure parts of castles or
city towers which were used to detain prisoners awaiting trial or execution of
sentences. The second epoch was one of experimentation with imprisonment as a
form of punishment for certain types of offenders, mostly juveniles, “sturdy
beggars”, vagabonds and prostitutes.

The third epoch was of universal adoption of imprisonment as a substitute for

virtually all corporal or capital penalties. In contemporary society the prisons have
replaced the scaffold, the stocks, and the pillory and whipping post as the most
conspicuous if not the most commonly used instrument of penal treatment. From
the point of view of the role they play in the Judicial Administration, four classes
of institutions can be distinguished those for temporary confinement of persons
arrested; those for persons awaiting trial or execution of sentence; those in which
sentences of penal treatment are liquidated; and those for the internment of socially
dangerous offenders.6 Prisons in official language may be called as, jail,
workhouse, penitentiary, reformatory, state prison, house of correction or whatever
else, it is simply a place where the punishment of imprisonment is executed.

IMPORTANCE OF PRISONS

In every democratic society, prison has a unique role as a formal agency of the
criminal justice system. The purpose of imprisonment as a punishment is plain
enough - the person who has committed a wrong must suffer in return. The state
through the prison is entitled if not morally obligated to hurt the individual who
has broken the criminal law. Since a crime is by definition a wrong committed
against the state. Imprisonment should be punishment, not only by depriving the
individual of his liberty, but by imposing a kind of painful condition under which
the prisoner must live within the walls. Today prisons serve main three purposes,
which may be described as custodial, coercive and correctional.

A prison as a place of correction historically is developing and new in conception.

Earlier prisons served only the custodial function, where an alleged offender could
be kept in lawful custody until he could be tried and if found guilty punished. The
Digest of Justanian, in Roman law established the custodial principle with the
statement that “a prison is for confinement, not for punishment” and in countries
that followed Raman law the principle that imprisonment was not a legal
punishment was dominant for many years. In England also the High Court judges
went out to “deliver the gaols” - to clear them not to fill them.

The prisons of the middle ages were, therefore, concurred only with holding
prisoners awaiting trial. Penal institutions were chiefly dungeons or detention
rooms in secure parts of castles or city towers, used to detain prisoners awaiting
trial or execution of sentence. The punishments imposed were torture, banishment,
exile, death, branding, mutilation, but never imprisonment. The coercive function
means that imprisonment may be used to persuade a person to comply with an
order made by the court of law, whether civil or criminal; if he complies, he is
released. The first use of the prison in this way was against convicted offenders,
mostly for juveniles, “sturdy beggars”, vagabonds and prostitutes. This function is
still active in England, since those committed for non-payment of fines or debts or
for contempt of court may secure release by paying what they owe or purging their
contempt.
The purposes of prison is protection of the community, supply of food, clothing,
shelters to convicted criminals, and protection of inmates from each other and from
persons in the outside community, imposition of punishment and rehabilitation of
criminals.

These purposes are assigned by outsiders and are shared by institutional personal,
although some of them are logically contradictory. A complex division of labour is
established to attempt their achievement, and each of the purposes is achieved to
some extent by the people whose institutional behaviour is patterned by the roles
that make up the division of labour.

The three principal sections in this division of labour are a hierarchy of custodial
ranks, an industrial hierarchy, and a social welfare agency-and they are devoted to
keeping inmates, using inmates and serving inmates. The prisons, during the last
three centuries or so have evolved to the status of an institution of social control
and symbol of legitimate coercion.

It is no more a resting ground in the legal process where death penalty,

banishment, or life transportation may be the verdict. Rather, the institution of
prison has imbibed and is influenced by the conventional norms, ideals and
assumptions of humanitarianism, enlightenment and the welfare state. It not only
carries the bearings of the ideals of the period, but is also impregnated with the
expediencies of organizational science.

The prison is not an autonomous body like a church. It is not an independent

system of power, but an instrument of the State, shaped by its social milieu and the
stage of social, political and economic development. It reacts to and is acted upon
by the society as various struggle to advance their interests.
 THEORIES OF IMPRISONMENT

In ancient societies prisoners were simply confined in the prison. Punishments

were given to them outside the prison. But latter due to the growth of civilization
imprisonment became the main method of punishment. There are mainly four
important theories of punishment, namely, retributive theory, deterrent theory,
preventive theory and reformative theory. Precisely, retributive theory is the first
and foremost one. A child who falls down, kicks the floor inadvertently generally it
is believed to be a form of taking revenge and would not serve any penal purpose.
Second is theory of deterrence.

This theory by punishing the offenders deters the wrongdoer specially and deters
the general public also by punishing him and refrain them from committing an act
which is an offence. Preventive theory incapacitates an offender from repeating the
crime, while reformative theory serves the purpose of rehabilitation of the
offender. Modern penologists do not believe in purposeless punishment. They
believe that a criminal is a patient and he be treated with humanity.

THE PRISONS ACT, 1894

Prisons Act, of 1894 is the first legislation regarding prison regulation in India.
Commenting upon the Prisons Act, of 1894, Dr. Amarendra Mohanty in her book
Prison system in India observed the following:

“This Act was largely based on deterrent principles reflected mainly the British
policy on the subject. The legislators took little pains to look into the other side of
the problem.

They were concerned more with the prison working than with treatment of the
prisoners. This Prisons Act remained unchanged for last more than one hundred
years except very minor change.” Among the various other provisions under the
Prisons Act, 1894, the following sections are related with the reformation of
prisoners in one-way or the other.

1. Accommodation and sanitary conditions for prisoners.

2. Provision for the shelter and safe custody of the excess number of prisoners
who cannot be safely kept in any prison.
3. Provisions relating mental and physical state of prisoners.
4. Provisions relating to the examination of prisoners by qualified Medical
Officer.
5. Provisions relating to separation of prisoners, containing female and male
prisoners, civil and criminal prisoners and convicted and undertrail
prisoners.
6. Provisions relating to treatment of undertrials, civil prisoners, parole and
temporary release of prisoners.

THE PRISONERS ACT, 1990

For the purpose of prison reformation and prison justice under this Act,
following sections are relevant here to mention:

1. That all reference to prisons or the imprisonment or confinement shall be

construed as referring also to reformatory schools to detention therein.
2. That it is the duty of Government for the removal of any prisoner detained
under any order or sentence of any court, which is of unsound mind to a
lunatic asylum and other place where he will be given proper treatment.
3. That any court which is a High Court may in case in which it has
recommended to Government the granting of a free pardon to any prisoner,
permit him to be at liberty on his own cognizance.
 THE TRANSFER OF PRISONERS ACT, 1950

This act was enacted for the transfer of prisoners from one state to another for
rehabilitation or vocational training. This Act is also helpful for transfer of
prisoners from over-populated jails to less congested jails within the state.

THE PRISONERS (ATTENDANCE IN COURTS) ACT, 1955

This Act contains provisions authorizing the removal of prisoners to a civil or

criminal court for giving evidence or for answering to the charge of an offence.

Thus, apart from the substantive prison laws, the Government of India
appointed a National Expert Committee on women prisoners (1968- 87) under
the chairmanship of Justice Krishna Iyer to examine the conditions of women
prisoners. The committee among other things recommended the following
suggestions particularly towards reformation and rehabilitation of women
prisoners.

1. In women's rehabilitation, employment training has a pivotal role.

Consequently, work in prison has to be given such potential economic worth
and utility that all women in custody are willing to engage in work
programmes.
2. Training of women prisoners in an area of great relevance to correctional
work and to the process of restoration of dignity of the women offender.
3. Probation, Parole and other non-institutional modalities of corrective
treatment shall be widely used in case of women offenders.
4. Moreover, at National Conference on Human Rights of Prisoners on 14th
Nov. 1995, consensus was emerged to work out the draft law on prisons. A
Core Group has prepared a Draft Bill namely, the Indian Prisons Act, 1995
which was circulated to State Governments for their consideration and
observation and also to Ministry of law. But unfortunately Bill is still
pending under consideration of the Government of India.

PROBLEMS OF INDIAN PRISONS

Jail administration in India being an important part of the criminal justice

system has suffered neglect and lack of recognition. A lot has been talked about
the police, a little less about the courts and almost nothing about prisons and
prisoners. The problem of prison administration needs to be highlighted to
focus public attention on this very vital sphere of social concern. It is nearly 30
years since the submission of the report of the All India Committee on Jail
Reforms (1980-83) headed by Justice A.N. Mulla.

One may ask why the recommendations of the committee have not been
followed and implemented in letter and spirit. There is little significant
improvement on an all India basis. The main reason often cited by the centre
not being able to implement the recommendations of the Mulla Committee is
that prison is a state subject. This only shows that if there is political will, there
shall be no difficulty at the centre taking an active and direct interest in prison
administration. After analyzing different dimensions of prison laws and prison
administration, one can lay down the following major problem areas, which
afflict the prison system and need priority attention.
1. Delay in trials in the courts has assumed very serious proportions. Even
though problem has been highlighted by the Mulla Committee, National
Police Commission and through Public Interest Litigation (in the Hussainara
Khattun’s case) there has been no relief at all. Delays commences at the
investigation stage itself. In many cases, charge sheets are filed by the police
very late leading to a long chain reaction. On the other hand courts are also
not without blame. Even though law requires that trials should be conducted
from day to day till completed, in practice this rarely happens. Cases are
adjourned for a couple of months at a time, which further aggravates delay.
2. Overcrowding itself leads to unsatisfactory living conditions. Although
several jail reforms outlined earlier have focused on issues like diet, clothing
and cleanliness, unsatisfactory living conditions continue in many prisons
around the country.
3. A special commission of inquiry, appointed after the 1995 death of a
prominent businessman in India is high-security Tihar Central Jail, reported
in 1997 that 10,000 inmates held in that institution endured serious health
hazards, including overcrowding, “appalling” sanitary facilities and a
shortage of medical staff63. The National Police Commission pointed out
that 60% of all arrests were either unnecessary or unjustified. This has
resulted in overcrowding and accounts for 43.20% of the expenditure of
jails.
4. Extortion by prison staff and its less aggressive corollary guard corruption is
common in prisons around the world. Given the substantial power that
guards exercised over inmates these problem are predictable, but the low
salaries that guards are generally paid severely aggravate them. In exchange
for contraband or some special treatment inmates supplement guard salaries
with bribes.
5. The arrangement for facilitating communication between prisoners and their
relatives, friends and legal advisors require attention. Many of these aspects
have been drafted within the Mulla Committee Report and deserve
immediate implementation.
6. Inadequate rehabilitative programmes and vocational training facilities is
another problem of Indian prisons. Even if there are few rehabilitative
programmes they are just outdated.
7. Apart from above mentioned problems of Indian prisons there are other
problems also which include lack of legal aid, health problem, homosexual
abuses, drug abuse, and prison violence.

ROLE OF JUDICIARY IN THE ADMINISTRATION OF PRISON

Justice Indian judiciary mostly Supreme Court plays a vibrant and active role
in the reformation and administration of prisons. One can say that till eighties
Indian judiciary adopted status quo jurisprudence and showed a lack of
appreciation and concern by its “hand-off” approach to the operations of
prisons.

It was in 1974 when Apex Court came up with new prison jurisprudence. In a
major breakthrough Court in D.B.M. Patnaik’s case66, asserted that the mere
detention does not deprive the convicts of all the fundamental rights enshrined
in our Constitution. Supreme Court again in 1977 in Hiralal’s case stressed for
the rehabilitation of prisoners and reformation of prisons. This judicial wave
continued.

In Sunil Batra's case which is taken as a milestone in the field of prison justice
and rights of the prisoners in India, Court held that “the fact that a person is
legally in prison does not prevent the use of Habeas Corpus to protect his other
inherent rights”.

In Prem Shankar Shukala’s case, Court observed that no person shall be hand-
cuffed, fettered routinely for convince of the custodian's escort. Supreme Court
again in R.D. Upadhyay's case has held that right to fair treatment and right of
judicial remedy are pre-requisites of administration of prison justice.

In Hussain Ara Khatun’s case Court adopted a dynamic and constructive role
with regard to prison reforms. Court apart from other things stressed on the
improvements of the conditions of the prisons in India.

Therefore, this vibrant role of Indian Judiciary shows the change of attitude
towards the rights of prisoners and reformation of prisons by treating prisons as
correctional rehabilitative institutions.
 CONCLUSION

In the recent years all the world over prison jurisprudence developed in order to
protect inherent rights of prisoners and for the proper administration of prisons.

Therefore, to start with, the existing legal structure of the prisons administration
has to be changed, Criminal law should be amended, a new Prisons Act should
be enacted and all Jail Manuals need to be revised.

Most importantly Indian Judiciary must continue to play its constructive and
active role in prison justice. In conclusion it must be never being forgotten that
the problem of prison justice and rehabilitation of prisoners is only a part of the
larger problem of social regeneration.

The prison administration alone cannot successfully rehabilitate the prisoners. It

can only make its humble efforts to set right the prisoners, but efforts will
succeed only if our economics, our education and our social institutions and
values are properly integrated into a coherent and harmonious whole based on
the knowledge of the human institution.