03- October-2023-Special-Article

COUNTING DEATHS IN INDIA PRISON

The story so far:

In August this year, the Supreme Court Committee on Prison Reforms found suicide to be the leading cause of ‘unnatural’ deaths among Indian prisoners, with U.P. recording the highest number of suicides between 2017 and 2021.

How are prison deaths classified?

Every year, prison deaths are identified as ‘natural’ or ‘unnatural’ by the Prison Statistics India (PSI) report published by the National Crime Records Bureau (NCRB).

In 2021, a total of 2,116 prisoners died in judicial custody, with almost 90% of cases recorded as natural deaths.

Statutory Framework dealing with Custodial Deaths

Section 76 of Cr.P.C, Sections 25 & 26 of the Indian Evidence Act and Section 29 of the Police Act, 1861 The Sections 330, 331 & 348 of IPC are those section makes the control torture of the policeman, but these laws are less sufficient to control such torture or violence.

The IPC on Custodial Deaths

It is mentioned in exception of section 300 of Indian penal code that if a public servant exceeds the right of using force and causes death of any person, he is liable for an offence of culpable homicide not amounting to murder.

The very famous case D.K. Basu Vs State of West Bengal 1997  Hon’ble Supreme Court issued a list of 11 guidelines.

Classification of Natural Deaths

Ageing and illness account for ‘natural’ deaths. Illness has been further categorised into diseases such as heart conditions, HIV, tuberculosis, and cancer.

Classification of Unnatural Deaths

‘Unnatural’ deaths are more diverse in classification. They include

1. suicide (due to hanging, poisoning, self-inflicted injury, drug overdose, electrocution, etc.) and
2. death due to inmates,
3. assault by outside elements,
4. fire,
5. negligence or excesses and
6. accidental deaths such as natural calamities (earthquakes, snakebites, drowning, accidental fall, burn injury, drug/alcohol consumption, etc.).

The suicide rate among inmates was found to be more than twice the rate recorded in the general population, as per a report by the Commonwealth Human Rights Initiative (CHRI).

What have the courts said?

In a landmark Supreme Court judgment Justice M.B. Lokur said that the NCRB’s distinction between natural and unnatural deaths is “unclear.”

Ambiguity in the reporting of the Deaths

“For example, if a prisoner dies due to a lack of proper medical attention or timely medical attention, would that be classified as a natural death [due to illness] or an unnatural death [due to negligence]?”, he asked.

This ambiguity, coupled with the fact that prison deaths are under-reported and rarely investigated, results in a majority of deaths being classified as ‘natural’.

During the pandemic, the PSI report classified deaths due to COVID-19 as ‘natural’ deaths. At the time, the occupancy rate of prisons was 118% of their capacity, and almost 40,000 more undertrials were held in prisons, in comparison with the previous year.

The same year, the sanctioned strength of medical staff was around 1:125, but in reality, there was just one staff member to look after 219 inmates. There is no adequate staff and the available staff is not properly trained to aid inmates. Only 5% of expenditure is spent on medical facilities, as per the PSI 2021 report.

Underutilisation of Sanctioned money

Moreover, between 2016 and 2021, money earmarked for spending on inmates was underutilised — ₹6,727.30 crore was the average national expenditure against a sanctioned ₹7,619.2 crore in 2021.

The Infrastructure Deficiencies

The infrastructural deficiencies are both a cause and effect of “callousness and neglect of the health of individuals in jail custody,”. The neglect could be medical, psychological or a continued denial of access to healthcare, food or safety.

How are deaths investigated?

Since 1993, the NCRB is required to intimate a custodial death within 24 hours, followed by post-mortem reports, magisterial inquest reports or videography reports of the post-mortem.

Compensation for a Custodial Death and Disciplinary Actions

Further, if “an enquiry by the Commission into custodial death discloses negligence by a public servant, the Commission recommends to authorities of Central/State Governments for paying compensation to the Next of Kin (NoK) and also for initiation of disciplinary proceedings/prosecution against the erring public servant,”.

The same response noted that only one ‘disciplinary action’ was taken between 2021-22 against an “erring official.”

Death as a result of Custodial Rape

In cases of custodial rape and death, the Code of Criminal Procedure also requires compulsory judicial magisterial inquiry in place of an executive magistrate inquiry.

The National Human Rights Commission (NHRC) in 2010, however, weakened the legal requirement to say inquiry by a judicial magistrate is “not mandatory” when “there is no suspicion or foul play or where there is no evidence or allegation of an offence.”

What has government done so far?

The Supreme Court in a 1996 judgment articulated the social obligation towards prisoners’ health, noting that they suffer from a “double handicap”.

“First, the prisoners do not enjoy the access to medical expertise that free citizens have.

Secondly, because of the conditions of their confinement, inmates are exposed to more health hazards than free citizens.”

The Model Prison Manual of 2016 and the Mental Healthcare Act of 2017, outline inmates’ right to healthcare, which includes adequate investment in healthcare facilities, setting up mental health units, training officers to provide basic and emergency care, and formulating suicide prevention programmes to thwart such instances.

Scaling up infrastructure

An infrastructural issue common to all is the need to scale both quantity and quality of staff.

The NHRC recommended filling positions of “Prison Welfare Officers, Probation Officers, Psychologists, and Medical Staff,” and must also include Mental Health professionals.”

There is an acute shortage of staff: a sanctioned staff of 3,497 people (out of which only 2,000 roles were filled), was responsible for looking after 2,25,609 prisoners in 2021 (this number has shot up to 5,75,347 as of September 2023, according to the National Prisons Information Portal).

Unevenness in the staff

Vacancies too are unevenly distributed— States like Bihar and Uttarakhand had over 60% of positions lying vacant.

Another recommendation is to allow inmates an “adequate number of telephones” with friends and family; judgments also note that prisoners should be allowed access to newspapers or periodicals to “reduce the feeling of isolation” and “possibility of harmful activity.”

How these suicides can be prevented?

To prevent suicides specifically, guidelines recommend

1. a strict check on tools such as ropes, glasses, wooden ladders, pipes;
2. initial mental health screening at the time of entry into jail; and
3. installing CCTV cameras to monitor high-risk inmates.

Human rights activists have cautioned against the latter measure, as heightened surveillance would violate the rights of prisoners. Almost 1.5% of the prison population suffers from mental illnesses, per the CHRI report.

How the UTs fair?

Among the nine Union Territories, the highest incidents of custodial deaths were reported from Delhi at 29 in the last five years.

Conclusion

1. The major overhaul is possible only structurally: “both the public and official mindset regarding prisoners and an urgent revamping of the criminal justice system are sorely needed.”
2. Strict action should be taken by the NHRC as per the provisions laid down under the Protection of Human Rights Act, 1993.
3. Workshops/ seminars should be organised by the NHRC from time to time to sensitise public servants for better understanding of human rights and, in particular, the protection of rights of persons in custody,”
4. “Police and public order are State subjects as per the Seventh Schedule of the Constitution of India. It is primarily the responsibility of the state government concerned to ensure the protection of human rights.

“The latin maxims Salus Populi Suprema Lex Esto i.e the safety of people is supreme law”

Coming to the judicial perspective the right of life and personal liberty mentioned under Article 21 of Indian constitution incorporates all the basic conditions for life with dignity and liberty.

Mains Questions

1. As the maxim goes, the safety of the people is the supreme law. In this backdrop, suggest measures to control the growing trend of suicides in Prisons? (250 Words) 15 Marks