Prison Reforms-What Is Needed Is A Systematic Study to Understand the Causes of Overcrowding in Prisons: Justice Madan Lokur

Justice Madan Lokur, former Judge of Supreme Court in conversation on prison reforms with Jhuma Sen, an Advocate practising before the Calcutta High Court.JS: Michel Foucault, writing about the failed project of 'reform' in prison famously observed in his Discipline and Punish that: “One should recall that the movement for reforming the prisons, for controlling their functioning is not a recent phenomenon. It does not even seem to have originated in a recognition of failure. Prison “reform” is virtually contemporary with the prison itself: it constitutes, as it were, its programme.” Prison, as an institution of reform, remains suspended in a perpetual state of reform, because it fails to achieve its objective of reform, he had noted. What, in your opinion, is the reason for it? What do you imagine the project of prison reform must look like? Is it possible to abandon the project of prison reform altogether and move to an abolition of prisons?JML: I don't believe abolishing prisons is feasible, at least not in the near future. However, prison reforms have been a topic of discussion for many years, starting as early as the 1970s and 1980s with cases like Sunil Batra and others. The Supreme Court has issued various directives over the years, particularly in landmark cases addressing issues such as handcuffing, solitary confinement, and prisoners' rights. But the central question we need to ask is: what can be done to improve the conditions in prisons for those incarcerated?When we examined the case of inhuman conditions in prisons, we identified four critical areas needing attention, the most pressing being overcrowding. Overcrowding has always been a significant issue in Indian prisons. The first step towards reform should be addressing this by reviewing individual cases dispassionately. By reducing the number of prisoners, implementing other reforms becomes more manageable.Let me provide an example. I visited an Observation Home for Children in conflict with the law. At the time, there were 258 children housed in a facility meant for 100. I requested the Juvenile Justice Board, the lawyers, and the staff to review each child's case to determine whether they should still be there. After this review, we found that many had already served more than the maximum sentence yet remained under trial—some had been there for five years, despite the maximum punishment being three years. It took about two weeks to complete the review, and the number of children dropped from 258 to 48. This shows that change is possible.India has around 4.8 lakh people in prisons. If an independent authority or body were to review each case impartially, the prison population could be significantly reduced—perhaps from 4.8 lakh to 3 lakh, then 2 lakh, and eventually even lower. Once the number of prisoners decreases, we can better address the issues they face. For instance, if overcrowding is the reason inmates don't have a place to sleep, the solution isn't to build more prisons. Instead, reducing the number of prisoners will allow for a more humane and manageable environment.JS: There have been a number of reports, practice directives from the Supreme Court and various High Courts on various aspects of prison reform in the last seven decades. Yet, the more things change, the more they remain the same. The ghost of overcrowding in prisons, coupled with inhuman conditions have continued to plague the prisons of the 1950s, to the 1980s to recongestion post decongestion of prisons during Covid-19 to even now. Why do these issues persist, even after a string of regulatory mechanisms from Board of Visitors (BOV) and Non Official Visitors (NOV)to UTRC have evolved to address the same in Correctional Homes? JML: There are two key issues here. First, the measures taken during COVID and similar situations, like addressing overcrowding in prisons, have often been ad-hoc and reactive. These actions, lacking in-depth study or planning, are more like knee-jerk responses. While they may provide temporary relief, they do not address the root of the problem. What is needed is a systematic study to understand the causes of overcrowding in prisons.One significant reason for overcrowding is that many people are not being granted bail, or those who are granted bail cannot meet the conditions set for their release. The question of why bail is being denied, even when it seems justified, can only be answered by the judges. Despite the fact that a person may qualify for bail, they may not be granted bail. Why?Another issue is the conditions attached to bail, which are sometimes too severe. For instance, asking a daily wage earner to produce a surety of Rs. 1 lakh is unreasonable, and they will never be able to fulfil it. Although the Criminal Procedure Code (CrPC) includes a provision for reviewing bail conditions after a week if the person cannot meet them, this review is often not carried out. This is another point where judges and prison officials need to be ...

Prison Reforms-What Is Needed Is A Systematic Study to Understand the Causes of Overcrowding in Prisons: Justice Madan Lokur

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