75: Prison reforms: Decongesting Indian Prisons: Justice Madan B Lokur and Sugandha Mathur

The Elephant in the Room

Shownotes:

For the 6th episode of The Elephant in the Room podcast in partnership with India Justice Report - we focused on the overburdened Indian prisons. For a very long time India’s prison system has been known for overcrowding, unhygienic conditions and the disproportionate number of under trials in the prison population.

The covid-19 pandemic led the Indian Supreme Court to issue directions to the High Court for decongestion of prisons in order to prevent the outbreak of the epidemic in closed spaces. The court directed the constitution of High-Powered Committees (HPCs) at state-levels to oversee the decongestion efforts, while also directing the Under trial Review Committees (UTRC), a district-level body mandated to review cases of prisoners, to meet every week.

However, despite several measures to decongest prisons overcrowding has remained a serious issue, along with a shortage of staff and medical officers. The level of vacancies at the National level means 1 in every three posts has not been filled

When we were thinking of the focus for this episode - it was about culling out lessons from the pandemic. Lessons that could help support the drive to sustainably decongest Indian prisons.

Is it training for the police to prevent indiscriminate arrests, or is it giving more power to the prison authorities to refuse to intake a prison when maximum sustainable number have been reached?

It was also about understanding whether magistrates who know the conditions of local prisons shape their remand powers to ensure that there is no overcrowding.

What is the role of legal aid in solving this problem?

Most importantly, central to the conversations is the role of multiple stakeholders - whose actions and frequent inactions contribute to the overcrowding. How can they be corrected and made accountable, what processes and systems need to be put into place to enable positive action.

I was privileged to speak with Justice Madan B Lokur, a former judge of Supreme Court of India and Sugandha Mathur from the Human Rights Initiative to get their insights on progressing the agenda of prison reform. Thank you Maja and Valay for your support and insights.

Memorable Passages from the podcast

👉🏾 Yes. You see, in my view, the process of decongestion has not been very successful either before COVID or during COVID. It's okay to say that, you know, 8,000 people were released, but out of those 8,000 how many of them actually came back, that is one. Number two, on what basis did you decide to reject the application for release of some of those people? So theoretically it's possible that 15,000 people could have been released and even this 15,000 is not a particularly large number considering the inmates that we have.

👉🏾 But I think the administration should have been far more proactive and should have taken steps to release as many of them as possible. The idea was that COVID should not strike other prisoners. Now, what is the point of just releasing a handful people and say, well, it's not going to strike the others.

👉🏾 Frankly I don't think that makes too much of sense. So if you ask me on a scale of one to 10, I would just say about maybe 4 out of 10.

👉🏾 On a scale of 1 to 10 I mean, I would agree with Justice Lokur and I would probably say 5. So there was clearly an effort that we could see in different states if not in all states and union territories. But at least in some states, there was this coordinated effort where the judiciary, the prison department, the legal services institutions, everyone came together.

👉🏾 I think for the first time the coordinated effort that we keep talking about, this actually happened in few states. However, the effort was neither constant and not uniform and because of that, as Justice Lokur was saying that the impact could have been more, could have been better and, you know, it could have benefited more prisoners, but unfortunately, that did not happen. So yes, I would say on a scale of 1 to 10? Five.

👉🏾 Yes, definitely there was a scope of releasing more categories of prisoners. The functioning of the high-powered committees was not uniform throughout the country. And the Supreme court had left it to the discretion of the high-powered committees to determine the categories of cases for different class of prisoners. And it had merely suggested one category that may be considered for release and that category was those who've been convicted or are under trial for offences, for which the maximum prescribed imprisonment is 7 years or less. So about 26 states, identified this category for release of under trials and 17 states undertook this category for release of convicts.

👉🏾 However, there were seven states who did not determine any other category at all. Right? So there we clearly see where that effort could have been made. So overall, when we see the categories of business identified for release by the HPCs range from 1 to 20. So in some states, they did make that effort. So for example, in Punjab, Delhi, to some extent Jammu and Kashmir and even West Bengal. So they undertook the decongestion exercise in a very systematic manner and where you could actually see while going through the minutes of these HPC meetings is that there was a correlation between these categories being identified and whether that is actually helping in reducing the prison population or not.

👉🏾 And you could see their thought process, you know, and how gradually they devised more categories of prisoners for release and slowly, moved towards, decongesting their prisons. And other HPCs, like I was saying, they took a very, very restrictive approach and they worked very mechanically, with the bare minimum efforts required. And as regards women and elderly this was very, very disappointing to note. You know when CHRI conducted the rapid study, we found that only five HPCs actually undertook the cases of elderly prisoners. And similarly there was only one HPC that is Punjab which categorised pregnant women for release, you know, they said that pregnant women should be released, that was the only HPC which talked about that. Very few again, only three HPCs considered categories of prisoners who had co-morbidities or who had some preexisting condition and primarily because this was a health crisis that was something that the HPC should have looked at. But unfortunately that did not happen.

👉🏾 Yeah, you know we already have these under trial review committees, right? The idea should have been in my view to strengthen these under trial review committees, rather than set up another high-powered committee. These under trial review committees are at the level of the district, so you have the district judge, you have the superintendent of police, you have the district collector. So they know exactly what is happening on the ground. The high powered committee may or may not know, okay? So they're just going to lay down some kind of a policy, but what is actually happening, it's only the Under Trial Review Committees, which are aware of this.

👉🏾: So I think the Under Trial Review Committee should have been strengthened and then they should have gone ahead. And if there's some kind of a doubt, all right, then refer the case to a high-powered committee. Otherwise, hopefully, if nothing happens, what are they going to do? Are they going have a higher high-powered committee? I mean, this will never end, you already have an established mechanism, use that, strengthen it.

👉🏾 In my view the arrest and detention of under-trial prisoners, of persons, did not stop and that is why the number increased. The point is that you are dealing with a health situation, a pandemic, the focus has to be on the health aspect, not on the crime. The crime is something that the courts will take care of and the courts have taken care of, at least in the case of convicts. And to an extent they have taken care of the under-trial prisoners by declining to give them bail. So the focus should have been on the fact that there is a health crisis and that should be addressed. Not that oh, you know, you've committed this kind of a crime, so therefore I'm not gonna permit you to leave.

What about pregnant women? As Sugandga was saying only one state did that. Did it prevent other states from doing it? I don't think so, whatever the crime. So I think that focus was just not there.

👉🏾 I mean, what Justice Lokur was mentioning. In most of the states, that was the issue, that there was lack of sensitisation on the part of these stakeholders and why this decondition excise. Though it did sort of help in reducing the prison population for some time, but then again, it increased. So that clearly shows that there was that lack of focus and lack of sensitisation among the stakeholders and regarding the point on whether arrests is one of the reasons, yes, definitely increasing arrests by police is one of the reasons for increase in prison population and the share of under trials.

👉🏾 And actually data can help us to understand this point better because when we look at the data that's there in the Crime India statistics.

👉🏾 So a closer look at these total number of arrests under IPC, SLL, CRPC and preventive detention laws revealed that the number of arrests under IPC crimes increased by 42% and the number of arrests under state local laws offences increased by 14%. So this clearly shows that the arrests were increasing, despite the Supreme court directions to the police authorities and time and again

👉🏾 And another reason for increase in prison population, I believe, is because of these sporadic functioning of courts, you know, the courts were also shut down for some time, so reduced court operations have negatively impacted the provision of timely and fair hearings. So it has contributed to increased case backlogs now and has led to increased length of judicial and administrative proceedings. So unless that is addressed, this will result in prolonged detention of prisoners and thus increasing the prison population in the coming years.

👉🏾 As you are aware, there are a large number of vacancies. The number of jail officials, I think 33% of the posts are lying vacant. The number of doctors is this just not adequate I mean one doctor for 300 and you had the pandemic and you had to divert doctors to hospitals, nursing homes and so on. So really, I think the whole thing has to be looked at in a global fashion, so to speak where you can't say that where crime is important or you can't say that health is less important or, you know, "oh, we don't have people" so that these guys remain. Judges can't say that because the courts are not functioning therefore the Liberty of an individual should be taken away. That doesn't make sense if you're not working, that doesn't mean that somebody has to remain in jail. If you're not working, you should say, all right, I'm not working. So I don't see the reason for keeping him in jail. So I think at the relevant time, there should have been a far greater debate on many of these issues, which unfortunately did not happen.

👉🏾 Well, in our experience the, the problem largely lies at the small district prisons and the sub jails, where there is no full-time medical officer available and even if a visiting doctor from a local district hospital is visiting, he or she's only visiting, say once a week, you know?

👉🏾 And in this situation, during the pandemic that's highly inadequate. And the reason that is often quoted to us is that there are a dearth of doctors, even in the government hospitals, and therefore it is difficult to depute doctors in prisons by the health department.

👉🏾 And on a practical level, we do see that some prisons engage doctors on contractual basis also. So for example, they would engage a retired government or army doctor on that. So when we look at the prison statistics and when we say that 30% to 40% are the vacancies in medical staff, it is not clear if the number of these contractual doctors are also included in the data or not. And if that is not included, then that means the ground situation is really very, very bad and challenging.

👉🏾 I was wanting to follow up on Justice Lokur's two or three points actually. One is about the arrest and one is about the courts. See the courts were not functioning and as you say, there was no great effort to say that, oh my God, these people are all going to be inside and so one must do something about it, it was sort of left to the high-level review committees. And they, according to some of the work that has been done in Maharashtra, they released convicts on parole, but hardly ever released under trials. And when they released under trials in some states where bail had been granted, it took as much as three months to get all of the conditionalities there. And there was still the reluctance to give bail by the magistracy.

👉🏾 You also have spoken about this many times when we have been in conversation. Now this is a comorbidity that has existed for a long time. So how are we going to repair it, even in the future? You've got already nine lakh people more and the under-trial numbers have gone up from 65% 70% to nearly 80%. 80% of the population is now under trials. And there doesn't seem to be any study, on this, I wanted to also ask Sugandha that what is the reason for the arrests, is the reason for the arrests in the two years, something to do with not obeying the epidemic protocols being out on curfew time or what, unless we know these things, there's just no question of repair and no consequences flowing for keeping somebody in jail, just because you don't want to give bail.

👉🏾 So Madan, really my question to you is how do we hold trial court judges? And magistracy for not doing the duty that they should at remand and during bail?

👉🏾 Yeah there are two solutions. One as Sugandha said is to sensitise the magistrates and the judges. Why are you keeping people inside? I mean, is it absolutely necessary? Is there any evidence to show that this person is going to abscond, is a flight risk? Is there any evidence to say that he's going to influence the witnesses. Now what the prosecution does is they say, oh, you know, keep this fellow inside because he's going to influence the witnesses.

👉🏾 So the magistrates don't look into this, one of the reasons could be pressure or work, but I'm not sure whether that's the correct answer to give on the part of the magistrates. So that is one aspect. The second aspect is, you know the legal aid system, I think has not functioned properly. What happens is that a person is produced and the judge says, all right, do you have a lawyer? He says, no, I don't have a lawyer. Alright, you know, somebody from legal aid, okay, you represent him. He will represent him, but does he know what has happened? Does he know what the case is? Does he have a copy of the FIR?

👉🏾 Now you can imagine what will happen to a person who belongs to one of the disadvantaged sections of society or who is otherwise very poor. If he asks or she asks that, listen, please gimme a copy of the FIR, or the lawyer should ask, that person should ask, they'll say, "no, we won't give it". What do you do? So that's where the legal aid system has to be strengthened and I'm afraid it's just the legal aid system is just going on. Okay. You produce somebody, you have a lawyer attached and say, okay, you argue for whatever it is worth. And frankly, it is worth nothing because the lawyer does not know what are the facts of the case.

👉🏾 The lawyer is not given an opportunity to discuss the case with his client, maybe half an hour, maybe 45 minutes. That doesn't happen. So that's why you have this problem.

👉🏾 So I'm not aware whether, most of these arrests were because of not following the lockdown protocol and guidelines. But I mean, we clearly know that the crime in India data clearly says that arrests under the IPC offences have increased by 42%. And during the lockdown, there have been nearly 150 reported instances of police employing physical force through beating, kicking, or xxxxxx charge, you know, as well as inflicting verbal abuse insults to people. So and including essential service providers, on the ground for enforcing these locked down conditions. So that goes on the functioning of the police and their accountability. But yeah, I'm sorry I'm not aware if there were increased arrest for following the lockdown guidelines.

👉🏾 That's absolutely fine Sugandha we're just trying to understand from Justice Lokur also that yeah what is to be done, but where can we get some consequences for the judge who doesn't do his job, the lawyer who doesn't understand his client's case and the policeman who arrests willy nilly.

👉🏾 Because if at those levels of those first responders, there is no accountability and no consequences flow, no disadvantage to them.

👉🏾 It's like this. So far as the judges are concerned the high court prepares their annual confidential report. So if a particular judge is just not fearing the law or just randomly putting people inside, declining to give bail over a period of time questions can be asked and the high court can be told that, listen, this guy is not following then law. And the high court can then take action you see this is a different kind of accountability. I mean, there has to be accountability, but this is a different kind of accountability. It's not that you fire the judge and say that why didn't you do this or why did you do that?

👉🏾 So you could have these accountability mechanisms, not to punish a judge that might be going a little too far, but at the same time telling the judge that listen, we know what's happening and you better, shape up otherwise it may have an impact on your career.

👉🏾 So accountability in some form, will have to be brought in not only with regard to the judges, but certainly with regard to the police. Now in one of these gang rape cases where the girl died, what did the state do? They just transferred the police officer from one district to another district,...