India’s outdated colonial law should be changed to stop inhuman treatment of prison inmates

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By Sajad Farooq Rather*

Pandit Jawaharlal Nehru , the first Prime Minister of India, expressed a view that criminals are largely a creation of social conditions and, therefore, they are required to be treated rather than being punished. The Tihar Jail has the capacity of mere 6,500 inmates. But it’s number of prisoners currently exceeds the capacity by 221 percent. Majority of them, about 75%, are undertrials, and they are languishing in Tihar as they cannot furnish bail bonds, as they are poor.

According to National Crime Record Bureau (NCRB) figures, Delhi comes third in overcrowding of jails, just after the Union territory of Dadra and Nagar Haveli. In 1995 there were 8,500 prisoners in Tihar as against the capacity of 2,500 persons. The overcrowded jail results in a situation where hardened criminals spread their influence over other inmates.

The National Human Rights Commission of India states that unnecessary and unjustified arrests made by the police and slow judicial process causing congestion of undertrial prisoners are the main causes of overcrowding in jails.

Two out of three prisoners in India are still undergoing trial, and a quarter of them have been in prison for over a year without being convicted of any crime because of routine violations of their legal rights, a recent report has found. According to the report, tens of thousands of people are trapped in jails because they don’t have access to good lawyers (in some cases any lawyers), or simply because there is not enough infrastructure for them to actually have a court hearing.

Besides the problem of overcrowding of prisoners in jail, prisoners are also subjected to torture and humiliation, especially Muslim prisoners. On November 27, the counsel for Shahid Yousuf, the son of United Jehad Council chief Syed Salahuddin, who is in the high security Tihar, produced a ‘blood-stained’ shirt before the Patiala Court alleging that his client was ruthlessly beaten up by Tamil Nadu Force inside the jail. While confirming it, family members said that Shahid was not only abused but mercilessly thrashed.

Dr Bilqis Shah, wife of senior resistance leader Shabir Shah, who was recently shifted from jail No 7 to jail No 1, where “death convicts are lodged”, said in Tihar Jail prisoners are subjected to gross human rights violations. Jail rules are thrown to the wind and prisoners are subjected to mental and physical torture. Jail authorities denied the use of credit card to deposit Rs 600 in Shah’s account. There are dozens of families from Kashmir who have stopped sending money to their loved ones.

Many Kashmiri prisoners languish in jails across various parts of India. It is not only Tihar Jail where they are subjected to torture. On August 31 this year, Nasrullah Khan, 25, and Manzoor Ahmad Khan, 22, of Dewar village in Lolab valley in North Kashmir’s Kupwara district were allegedly abducted by troops of the army’s 27 Rashtriya Rifles.

Manzoor said, “I can’t walk properly, I can’t work, I can’t eat and I can’t sleep as a normal man – I am still on bed rest in one of my rooms. Not only do I have kidney problems, several of my internal parts are not working properly, and I am begging before my relatives and friends to take care of my five small children, wife and aged mother.”

Article 5 of the Universal Declaration of Human Right states that “no one shall be subjected to torture, inhuman or degrading treatment of punishment.” In Tihar, Kashmiri inmates are being even deprived of basic rights to survive and no medical treatment is being provided to them, nor are they allowed to meet their relatives. Various jails have become a torture centres where Kashmiri inmates are deprived of human contact for months.

Themodern Indian prison system is a legacy of the British colonial rule. Its roots can be traced back to England in the eighteenth century, during a time when even the slightest criminal offence was punishable by death. Today’s prison system is based on the Prison Act of 1894.

Sajad Farooq Rather

Mary Robinson said, “Today’s human rights violations are the causes of tomorrow’s conflict”. The government must announce a package for prison reformation as part of the National Prison Policy being implemented by the Centre. It must set up working groups, committees and commissions to investigate the issue of prisoners and offer solution. The present legal structure of prisons should be changed, and loopholes in criminal law should be amended. Indian judiciary must contribute to and play an active role in prison justice.

*Law student and freelance writer. Contact:

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