Commonwealth Human Rights Initiative

The genesis of prisons lies in the concept of curtailing the freedom and liberty of movement of a person found to have violated the law of the land. In theory, the concept of prisons has undergone some change from institutions of state retribution in the past to institutions for reformation in the present with many human rights organisations promoting the latter view. However, in the minds of most people, they still stand as closed gigantic fortified walls of concrete and iron gates, filled with huge numbers of people, punished for breaking the law with little intervention from those beyond the boundaries of these penal institutions.

A large part of their isolation has been because of the physical structure of the prison, combined with certain archaic rules of management which still exist, that completely shut them off from the outer world, turning them into small self-sufficient islands. Thus, prisons grew to be places of low visibility where all types of conditions, mostly inhumane, could prevail while the world outside remained largely ignorant of what occurred inside their walls. Moreover, state supervision over what transpired every day inside the prison became a mere formality, and the surveillance of society was conspicuous by its absence. Consequently, in these closed institutions, abuse and torture was not only possible but was usually the norm as a prison's isolation endowed them with a cover of obscurity in which fundamental human rights could be unofficially violated and officially denied.

The need for non-government intervention in prisons in India was recognised as early as 1894 when the Prisons Act accepted that a system of visitors would be of value in providing humanitarian aid to prisoners secluded from society, and the concept was thus introduced in the act. The system of visitors was believed to provide transparency within the prisons and bring some degree of accountability to the prison management. It was also a mode of community involvement in the penal system. The present provisions for official and non-official visitors in the prison manuals of various Indian states are the result of this law. Through this system, people from the community and those who are duty bound by the virtue of the position they occupy in either government departments or the judiciary can monitor conditions in an otherwise inaccessible institution.

In addition, in 1919-1920, the first Indian Jails Committee appointed to comprehensively study prison conditions devoted a whole chapter to the improvement of the prison visitors system, laying down certain guidelines for the appointment of both official and non-official visitors, such as selections should not be made solely on the ground of social position, wealth or political influence but on definite qualifications. Moreover, the committee noted the value of prison visitors being impartial and independent in India and that the "existence of non-official visitors is specially valuable [in] supplying a training ground where members of the public can obtain an insight into jail problems and learn to take an interest in prisons and prisoners."

However, only a few states of independent India, such as Maharashtra, incorporated the committee's guidelines as legal provisions for the appointment of non-official visitors. Rules in most of the other states unfortunately do not specify any qualification for a person to be eligible for appointment as a non-official visitor with the result that presently anyone, especially those affiliated to the political party in power at the state level, are being appointed.

Other rules grant the powers for the district magistrate to prepare rosters for monthly visits and to form a board of visitors for each prison in the district and provide procedures for the removal of a non-official visitor. They also describe the duties of prison visitors, but, except for Maharashtra, there is no mandate to give a copy of these rules to non-official visitors at the time of their appointment. Consequently, it is difficult for non-official prison visitors to know what their responsibilities are.

Duties and Functions of Prison Visitors

Setting aside for the moment this lack of communication, the rules of various states permit visitors to examine all parts of prisons and to look at any document that is not confidential in nature related to the administration of the prison. They can also hear or inquire into any complaints made by the prisoners. Complaints are made to prison visitors, however, within full sight of the prison official accompanying the visitor, although out of their range of hearing. In short, prison visitors are to satisfy themselves that the law and rules regulating the management of the prison and prisoners are being duly implemented.

As well as these rules that grant powers and responsibilities to prison visitors, there are those which prohibit them from taking certain actions, such as issuing orders to subordinate jail officers and visiting prisoners on hunger strike, those detained under the Preventive Detention Act or those who are ill and are not allowed to be interviewed on medical grounds.

However, many of these provisions, suitable in the past to India's colonial rulers, are now outdated and should be replaced with rules more in line with the present-day independence of India and its democratic system. Why, for instance, should a non-official visitor be prevented from seeing a prisoner on hunger strike? Perhaps the prisoner has a grievance that has not been resolved through normal channels and has resorted to this drastic measure in desperation. A non-official visitor has a right to listen to the complaints of such a prisoner. Similarly, the restriction on non-official visitors meeting prisoners being held under the Preventive Detention Act, or any other preventive law, is also an archaic provision that suited British rule in India and should be rescinded. Another rule which should also be revoked states that a visitor is precluded from giving publicity in the press to matters involving prison administration. In a democratic system, poor prison conditions and other deficiencies in administration should be brought to the public's attention, and it should be permissible for prison visitors to do so by any means. After all, if the institution of prison visitors is not utilised to make prison conditions more transparent, then their very purpose is defeated. Moreover, it is an infringement on their constitutional right to free speech and expression-the right of every Indian citizen-that cannot be withdrawn because they have been appointed as a prison visitor.

Board of Visitors

Isolation from society has perhaps been the main reason why it has been so difficult to bring about improvement in prison conditions. This isolation results partly from the basic nature of prison institutions and partly from the predisposition of management, combined with the complete disinterest of society in general. This seclusion from society was perhaps foreseen by the framers of the Prisons Act a hundred years ago, and therefore, they inserted a provision in the Prisons Act to create the institution of prison visitors. It is also for this reason that some kind of extradepartmental and social intervention has been sought through the appointment of prison visitors from outside the prison establishment.

The formation and involvement of a board of visitors by the state is the only area where the prison bumps up against society, and thus, the board of visitors has a role to play in making the conditions under which prisoners live more transparent and exposing problems in the prisons. Consequently, a board of visitors was suggested for each prison consisting of a few members, both official and non-official, to regulate their prison visits and primarily to provide them with a platform to address prison-related issues. All non-official visitors of a jail, except those debarred by the government, are eligible to be on this board. Rules provide for a board to be selected biennially by the district magistrate from among the official and non-official visitors of each prison. A meeting of the board must be held once every three months.

Court Rulings Ignored

The importance of the board was underscored when, in a significant judgment-the Sunil Batra case-the Supreme Court noted that the board of visitors, which includes judicial officers and people from varied social backgrounds, could work as an administrative grievance mechanism to protect the rights of prisoners. It specifically cautioned prison visitors that the pressure of prison wardens or officials were inhibitive and must be avoided. It also suspected that an open inquiry of prisoners in the presence of prison officials would lead to reprisal. Whatever the directions of the court, however, the Prison Dept. has only followed its interpretation of the 19th century colonial prison manual and has structured the role and scope for the   intervention of society and the judiciary in its own way, restricting in the process interaction and communication between prisoners and society.

Through another court case-Ranchod vs. State of Madhra Pradesh in 1986-the dysfunctional nature of the prison visitor system was clearly exposed when an inmate of one of the largest central prisons in the state died due to utter negligence by prison officials and the medical staff at the Central Prison in Indore. It was only then that the callous behaviour of prison doctors, the maltreatment of prisoners by prison staff, the tampering of prison records, etc., that had occurred for years were revealed despite the prison visitation system and board of visitors. The presiding judges then questioned the effectiveness of this system and pointed out the responsibility held by the official and non-official prison visitors in monitoring and improving prison conditions. This case further uncovered the collapse and neglect of a system that holds the potential of providing redress and correction in a closed, impenetrable institution.

Unfortunately, despite a legal mandate and recognition by the courts, the system of prison visitors as independent observers of prisons and prisoners still remains quite passive in its functioning and almost non-existent in most states with the majority of representatives being quite oblivious to prison conditions, which continue to be appalling. Prison reform committees, set up periodically, frequently question the efficacy of this system, which has existed primarily only on paper.

Visitors have not been appointed to most prisons while in some penal institutions the appointed visitors hardly consider their duty to be worth performing. What do they lose, after all, if they knowingly evade uncomfortable situations that could arise in confronting a non-cooperative prison staff member? Meanwhile, boards of visitors have not been constituted; and in places where they do exist, they seldom visit prisons. The system of prison visitors moreover is still considered by the prison staff as an unnecessary intrusion in their work, and non-official visitors reduce their functions to a mere clerical formality in the absence of any accountability. Thus, for various reasons, non-official visitors are not considered as credible functionaries. They are discounted in their intentions and discouraged from attending to their assignment. This rejective attitude of prison personnel, combined with the neglect of their responsibility by visitors, has rendered the prison-visiting system ineffective.

Society's Contribution to the System's Failures

Today one can find in India a significant number of people working in the criminal justice system, or in society, who hold the view that the image of a prison must inspire awe and fear in the minds of offenders. To them, life in prison should be demonstrably torturous to deter a prospective criminal. Reformation and rehabilitation of a criminal, they say, is impossible. They often quote a few examples, but their views are more sentimental than scientific. Studies in social science, meanwhile, have proven that the severity of punishment has never been a deterrent to a prospective lawbreaker. While the continuance of the death penalty for murder has not curbed the rate of homicides, the abolition of this harsh punishment in a large number of states in the United States has not increased the number of murders.

However, the loss of one's liberty is frequently sufficient to prevent an ordinary person from violating the rules of society. Moreover, a large number of prisoners do not commit a second crime after their release, a statement that is confirmed by the statistics of the National Crimes Records Bureau that indicate that the number of inmates who had two or more previous convictions at the end of 2002 was only 2.7 percent of the total population in the country.

The Decay of the System

In spite of detailed prison rules, transparency has always been lacking. Secure management has thus slowly, but consciously, slipped into obscure management; and once transparency is diminished, accountability becomes a farce. Prison management could, if it so preferred, become repressive and yet pass unnoticed. No inmate could complain of repression for fear of more repression. How could one dare to encourage hostility with the system in which one has to live a substantial period of their life in seclusion from society?

It is common knowledge that this isolation becomes the breeding ground for corruption and other irregularities to flourish. The misuse of authority for unlawful gain becomes the norm. One can create discomfort and charge for comfort as it is well known, for instance, that in certain prisons in the country inmates have to pay for stretching their legs for a comfortable sleep at night. Cliques are also formed in which inmates, working together with prison staff, operate "unholy businesses." The network spreads, and those who prefer to keep a distance from this behaviour and activities are ridiculed, isolated, rejected and sometimes even punished on false grounds.

However, problems in prisons are not all caused by the actions of the prison staff. A substantially large number of them result from the system itself and the neglect to which it is subjected by everyone involved in it-the courts, the police, the probation system, the district administration and so on. Physical and psychological torture resulting from overcrowding, lack of space, unhygienic sanitary conditions, a shortage of water, a lack of proper bedding, restrictions on prisoners' movements due to a shortage of staff, the non-production of undertrial prisoners in court, inadequate medical facilities, neglect in granting parole, the rejection of premature release on weak grounds, etc., result, not from any malfeasance of the prison staff, but from the collective neglect of the whole system.

Opening prisons to civil society may be one of the most important means of alleviating numerous problems faced by prisoners, and this is where the role of prison visitors can be best appreciated and utilised. It is they who can best bring to the notice of the government and society the deficiencies of the system in a timely manner as well as help secure the cooperation of non-governmental and other community organisations. The institution of prison visitors is thus not only desirable but also essential if one is to make prisons a correctional and rehabilitative institution rather than a place for mere incarceration.