Over crowded prisons need for remedial action

Walter Ladduwahetty , Former Judicial Officer Past President Prisoners' Welfare Association

PRISONS: Chairman of the Central Committee of the Prisoners' Welfare Association T. S. Rajapakse has drawn timely attention to the pathetic conditions within Prison by his article "Prisons or Well Holes" appeared on CDN 01/08/06 - Truly the situation is such that Prisons are "bursting at the seams."

While standard minimum rules provide guidelines regarding the conditions appropriate to incarceration, it has been a fact well documented and well-known over the years that prisons both here and abroad are over crowded. The theory behind incarceration is universally accepted to be rehabilitation rather than punishment.

The evolving social mores would therefore suggest the need for placing ever increasing emphasis on improving the conditions under which prisoners are kept while in the custody of the Prison Authorities. This is not to 'pamper' a wrongdoer found guilty by a Court of Law. But common humanity would demand that they be treated humanely.

There are judicial dicta that over crowding and compelling prisoners to live in sub-human conditions is a denial by their fundamental rights. What if one of the prisoners was to file a fundamental rights case alleging unequal or discriminatory treatment in the manner he is being treated under sub-human conditions by the Prison Authorities?

Mr. Rajapakse says "for a few decades now prisons are holding unmanageable numbers". He cites the case of Welikada prisons which is holding four times its capacity and his agonizing cry is "surely steps to relieve human suffering in prison should have taken precedence over ostentation" and that "no successive government has looked at the prisons since independence".

It is true some studies have been done and reports submitted, but the writer alleges nothing has been done to implement those recommendations. This is a sad commentary on the authorities responsible for this blight on our society.

The attention has been drawn to several matters which require consideration. Mr. Rajapakse says, politicians may have looked into these problems if the prisoners had the right to vote and that the official attitude is one of lethargy.

This is a matter that requires consideration. If the reason for depriving prisoners of a citizen's right to vote is that they cannot possibly be released to enable them to go to a polling booth to cast their vote, in this day and age when enlightened policies should be a characteristic of both policy and action, cannot they be given the right to a postal vote? To do so will eliminate the administrative difficulties of releasing them to cast their vote.

To say that a prisoner while in prison should be deprived of their vote does not strike one as either logical or necessary when the postal vote may be the way out if one realises that there are about 90,000 persons in this deprived category.

Legal delays cause prisoners having to spend their time in prison longer than the period they have been sentenced to is a serious infringement of their rights. Is the remedy in such situations that State should compensate them by some pecuniary compensation for the fault is clearly ,in such cases, due to the fault of the State?

The individual prisoner in almost all such cases will not be able to assert his rights by invoking the jurisdiction of the Supreme Court by filing a fundamental rights case. Public Interest Litigation is perhaps the answer - Public Interest Litigation has been very effectively utilized in India in numerous areas for the common social benefit.

Environmental pollution among other matters is an area where Public Interest Litigation has been utilized by concerned citizens to seek the assistance of the Courts. Other countries, particulary India, have gone a long way with the assistance of a very enlighten activist judiciary to remedy many areas of public concern.

Our own experience here is much more limited as Public Interest Litigation and epistolary jurisdiction known to other jurisdictions have not yet come to be used as effective instruments for the social good.

Perhaps the time is not a day too early when organisations like the Prisoners' Welfare Association should move purposefully and actively into this area and claim for the prisoners their lawful due. This will at least galvanise the State to take remedial action.

More specifically, over 87,000 persons have been on remand according to the statistics quoted by Mr. Rajapakse. Of them only about 25 to 30 per cent have been eventually convicted. The balance 70 to 75 per cent have only resulted in aggravating the problem of overcrowding in prison, quite apart from the trauma of a prisoner being on remand for varying periods in most unhygienic surroundings and intermingling with hard core prisoners.

They go back to society having shed the fear of going to prison, and therefore more prone to be future offenders.

Should the prosecuting authority be more circumspect in moving for remand - particularly in the case of first offender? Should the Courts be more vigilant before remanding, particularly if the offence is bailable?

To that extent are the legal provisions been complied with? If a substantial dent can be made in the numbers remanded, the problem of over crowding can be reduced meaningfully considering the fact that 70-75 per cent of the over 87,000 remanded in 2004 have been remanded for no real purpose as they were eventually discharged.

Take the case of persons sentenced to imprisonment for non-payment of fines. The figures given by Mr. Rajapakse show that over 58 per cent of those convicted were sentenced to jail for non-payment of fines.

The tragedy is that the Court sentencing the accused realised that in the spectrum of sentences open to it, a fine was the appropriate sentence - and not incarceration and yet the prisoner is sentenced to jail, for however short a period it may be, because he did not have the pecuniary resources with which to pay the fine.

So basically he goes to jail for his poverty. In a country where almost one fourth of the people are below the poverty line, is it not a travesty of justice that not having the means to pay the fine is the only reason why they languish in jail?

When they eventually come out they do so much worse as human beings than when they went in, not only with a life long stigma of being a 'jail bird' but with feelings of hatred against society.

If the law provides for a fine as the punishment for a particular offence and the jail sentence be only in case of default of payment of that fine, and further if the law provides for the payment of the fine in instalments, what justification is here for the default sentence unless the fine has not been paid in instalments as directed.

If the Courts are today overcrowded with their judicial work, should not administrative arrangements be made to collect the fine without burdening the Court, and the matter being brought to the notice of the Court only if there is a default?

There are other alternatives that have been evolved over the years. Mr. Rajapakse has referred to work camps where the short term prisoners' efforts can be usefully utilised. Drug offenders can be given effective training to wean them from their deadly habit. One hopes that many programmes implemented in the past are being continued today. Home leave, work release etc.

are some of them and can relieve the problem of overcrowding in prison. Building new prisons may perhaps help somewhat, but at best of times has low priority. The answer is to reduce the intake rather than increase the accommodation for following the Peter Principle if there is accommodation there will be people to fill up that accommodation.

If one does not anticipate change and be ready for it, with their problems of severe over crowding and its inevitable manifold consequences will, as Mr. Rajapakse fears, one day "burst at the seams" and add to the already existing immense human suffering within, not to speak of its impact on the justice system.

The Department of Prisons has its Training Institute, established many years ago. Many training programmes with a faculty of eminent psychologists, social and religious workers, lawyers and judges, probation officers etc. can be instituted to create in the minds of prison officers the importance of their role as custodians of fellow human beings who by some quirk of fate have fallen foul of the law, but whose redemption as law abiding citizens is their role and their ultimate challenge for what matters is not so much the "job" of a prison officer, but what you leave behind in the values you follow and which you have inculcated in others.