S.O.S e – Voice For Justice – e-news weekly
Spreading the light of humanity & freedom
Editor: Nagaraja.M.R.. Vol.11..Issue.09….….28/02/2015
Editorial : Safety of Jail Inmates Responsibility of Judges
The presiding judge of the case who issues arrest warrant against a person , who rejects the bail plea of the accused and the judge who remands accused to police custody / judicial custody is fully responsible for safety , human rights of the prison / jail inmates. Use of 3rd degree torture is rampant in jails and in all such cases , respective presiding judges must be made to pay compensation from their pockets and judges must be charged for AIDING & ABETTING THE MURDER ATTEMPT on prisoner by jail / police authorities. Are the JUDGES & POLICE above Law ?
Criminal justice system victimises poor and vulnerable: CJI
New Delhi: The criminal justice system largely victimises the poor and vulnerable sections of society and there is an urgent need for reform on multiple fronts, Chief Justice of India HL Dattu said today as he called for the scrapping of laws which criminalise begging and sex work.
“Not only does the criminal justice system largely victimise the poor and vulnerable sections of society, very often, laws themselves criminalise poverty and destitution,” Dattu said on the occasion of Law Day function on the Supreme Court lawns.
“In India, laws criminalising beggary, sex work and certain occupations of the tribal community are often largely seen by the scholars and human rights activists as widening the net of criminality by punishing destitution.
“Along with legal aid, there must be an intense process to redo the acts that are criminalised towards decriminalisation of acts that has a disproportionate impact on the poor,” he said at the function where Union Law Minister DV Sadananda Gowda, too, was present.
On the issue of protection of women against sexual violence, Dattu said, “We seem to be having a growing affinity for ensuring physical safety of women by curbing their freedom.
“As far as I am concerned, I would like to emphatically state in no uncertain terms that the security of women is not achieved by curbing their freedom and liberty and it is no security at all. We have to evolve some systematic reforms,” he said.
The Law Minister, who spoke before the Chief Justice, dwelt upon Prime Minister Narendra Modi’s ambitious ‘Make in India’ project, saying that the country is being converted into a major global player through the creation of a business- friendly environment.
Efforts should be undertaken to make India an international arbitration hub, he added.
He said, “The government is pushing the concept of ‘Make in India’ and converting the country into a major global player, for which we need to have a business-friendly environment.
In ‘safe’ custody
In-custody torture, though illegal under law, is often resorted too, worldwide, making it one of worst forms of human rights violations. Meenakshi Ganguly, former Time journalist and now, South Asia director, Human Rights Watch, takes up a few questions here to address the subject. Excerpts:
Do you think India should also come out with an official report documenting in-custody torture as the U.S. Senate recently did on CIA’s secret torture program?
Torture and other ill-treatment are absolutely forbidden under universally applicable international laws. Most that defend torture argue, as was done by the CIA, that harsh methods are necessary when there is great danger to public security. They speak of the ‘ticking bomb.’ In fact, any experienced interrogator would agree that using torture is not effective because it can produce inaccurate intelligence or generate false leads. The Senate Select Committee on Intelligence (SSCI) report on the CIA’s detention and interrogation program shows that not only was the CIA torture far more brutal and harsh than previously admitted, it was not an effective means of producing valuable or useful intelligence. Repeated claims that the program was necessary to protect Americans turned out to be false.
India has prepared a draft bill seeking to prohibit torture. But as long as there is a culture of impunity, where public officials are protected from prosecution, the law will fail.
Some argue that our judiciary already has enough checks and balances to protect prisoners from abuse. Do you agree with it?
Indian law does not allow confessions to the police as evidence because there is concern that such confessions might be coerced. Under POTA, confessions to the police were permitted, and eventually the law was repealed because it was abused.
Although most police will argue that “third degree” is generally discouraged, in our discussions with the police we also found that it is the most used instrument in their non-existent toolkit. Overworked, where good work is seldom rewarded, junior level staff is expected to produce prompt results — and they do so by rounding up suspects and beating them, hoping to solve the case. Inevitably, they end up with false leads, often make wrong arrests and are unable to secure convictions due to lack of evidence. Poor witness protection and harassment to witnesses also means that they do not want to get involved in a long drawn out trial.
The senior officer level police complain of undue pressure from politicians and powerful figures, who can act as patrons to criminals, demanding they be protected from arrest and prosecution. Instead of upholding the law, it is the police that end up breaking it. The Supreme Court has ruled that the government must engage in police reform. This is crucial to ensure that police in India becomes an effective and accountable force. The judiciary rightly acquits people for lack of evidence. But if police does not receive the training to gather proper evidence, it also means that criminals can get away, while innocents suffer wrongful Muslim, calling me a traitor arrests, torture, and lengthy under trial detention. It also leads to an even more frightening outcome — where the police do not have evidence to convict, they decide to be both judge and executioner, doling out punishment that can range from slaps to extrajudicial killings, or fake encounters.
What vital points does HRW’s in-custody torture report of 2011 throw up?
We found that there is urgent need to implement reforms to the criminal justice system. The police in India operates as it did under colonial rule. We found that fear of police is a barrier to seeking justice. Women and children, victims of sexual attacks, said they feared further abuse if they did venture into a police station. Dalits complain that if they muster the courage to complain, they often find that the victims are made to sit on the floor outside while the upper caste perpetrators are served tea by the officer. Muslims complain of being held in suspicion.
The constabulary and the police station is often the only State presence available to the public, and it is not a pleasant experience. Many policemen agreed that they are often rude and harsh, but they also point to their own frustration, having to deal with a range of issues from domestic violence to communal riots, often because the civil administration simply fails to do its part inimplementing policy. We found police stations with desktop computers, but no electricity or even a trained operator, forget access to data and information. At some places, the residential quarters were shocking. Policemen said they are accused of demanding money when they have to travel a distance in rural areas to investigate a complaint, but said there was a shortage of vehicles or funds to pay for fuel. On the other hand, we found that many State governments are yet to establish independent and effective human rights commissions or set up a complaints authority to investigate police abuse.
Don’t we have guidelines to prevent custodial torture?
The Supreme Court and the NHRC have laid down guidelines. Unfortunately, they are routinely ignored. That is why there is such a strong demand to seek the repeal of AFSPA to be replaced by one that has stronger human rights protections. The law provides widespread powers, but protects soldiers when those powers are abused.
In the investigation of terror attacks, police have made mistakes, often due to the use of torture. The Andhra Pradesh Minorities Rights Commission, for instance, found the wrongful use of torture and recommended compensations. In one case in Orissa, we had a man tell us that he was beaten by the police so severely, his leg was fractured. In agony, when the police continued to hit his injured leg, he blurted out the names of his office colleagues, who were then arrested and tortured. All of them were charged under the counter terror laws as members of the banned Maoist groups. Eventually, they were found to be innocent by the courts.
India is yet to sign the UN Convention Against Torture. Will it help?
Pakistan, Bangladesh and Sri Lanka had even permitted UN special rapporteurs on torture to visit their countries but reports of in-custody torture continue to pour in from such countries. Police often say that human rights impose restrictions when tough measures are needed for tough challenges. Unfortunately, any compromise is only going to lead to bad outcomes.When the State allows, even rewards, its security forces to violate the fundamental principles of the Constitution, it rarely turns out well. It leads to corruption at the very least. It can also turn policemen into killers for hire, or as a military court discovered recently, lead soldiers to kill innocents for profit.
In Sri Lanka, we have documented torture including sexual abuse of suspected LTTE supporters and sympathisers. In Bangladesh, the Rapid Action Battalion was created as a counter-terror force, but instead has repeatedly been accused of extrajudicial executions. People want to feel safe. However, we often find that denial of rights can cause security challenges, but the continued violation of human rights aggravates the situation, leading to a cycle of violence and placing innocents at risk.
Implementation of Supreme Court guidelines on arrest and detention
The Supreme Court had to appoint a committee in each State consisting of some Judges of respective High Courts to oversee the implementation of such guidelines.
The apprehension of violence in custody has increased manifold in recent years in a hysteric atmosphere created in the name of containing terrorism and extremism, the police have acquired unfettered power with the passing of various draconian laws like TADA, POTA etc. at the national level and “anti-extremism” laws passed by various state governments. In this background PUCL at national level has undertaken a program to find out how far the guidelines issued by the Supreme Court are being implemented in various states. As part of this programme Bhubaneswar and Cuttack Units of PUCL had taken a sample survey of some police stations at their respective places, in July 2002 (the list of Police Stations visited and elaborate findings are given in Annexeure-2).
It may be mentioned here that just on the eve of the survey a workshop of OICs of Bhubaneswar and Cuttack police districts was organized by the Police Headquarters on the implementation of the above guidelines. PUCL teams, besides visiting various police stations had also visited respective Police Control Rooms. Later on they had also met the SP, Bhubaneswar and the Home Secretary to discuss their prima facie endings.
Besides, as a test case for the survey, the PUCL team had specifically investigated into a particular case of alleged illegal detention and torture by police of one Shri Lotus Samal at Bhubaneswar, which was incidentally reported in the press in November 2 while the report on the above survey was being finalised.
Summary of the findings
However main findings of the survey are summarized below
It was clear that the detainee was not going to be produced before a magistrate in next two hours. Likewise Shri Arun Kumar Chowdhury, a juvenile was reportedly detained for 30 hours by the police in the same police station on the same day without producing him before the appropriate magistrate and without following any of the legal requirements for a juvenile detainee. In this case also no entry was made anywhere in the police record and the police control room was not informed of the arrest. The juvenile detainee was kept in a very humiliating and oppressive condition by chaining his leg to a table inside the police station in full view of the public.
The team also observed that both the detainees were physically tortured with Shri Sahoo having bruise marks on his body and with both his thighs heavily swollen.
Even while finalising this report some serious cases of abuse by the police, to the extent of maiming the detainee in the custody in the capital city itself, are being regularly reported in the media.
2. In none of the police stations the lockup rooms are provided with the basic minimum facilities required for a human being like proper ventilation, fan, light, bedding, toilet, mosquito net or coil which makes detention itself a torture.
3. The allocation for expenses on foods for detainees is ridiculously low. As reported by the Police Officials interviewed, the approved amount for a detainee’s food expenses is Rs.2/- per meal.
4. Government does not provide funds to the police stations for meeting minimum expenses like printing of registers and formats to comply with the directives of the Supreme Court. The police officers reportedly get the stationeries printed by paying from their own pocket. In some police stations like Chandaka police stations they maintain the records in loose sheets with hand-written formats.
5. In none of the police stations the guidelines have been displayed on the wall or on a notice board for information and awareness of public even though the Supreme Court in their order have specially directed for displaying the same in every police station. The In-charges of Police Station plead that they have not been issued any specific instructions by the higher-ups in this regard nor is there any budget allocation for that.
6. Arrest registers are being maintained in all the police stations. However, some irregularities in issuing of Inspection and Arrest memos were noticed in one police station (Laxmisagar Police Station, Bhubaneswar).
7. The registers are maintained only from the month of May 2002. It seems (that prior to this there was no system to monitor whether the guidelines were being followed or not.
8. There is no separate lockup room, except in a very few police station, for the women detainees. In some police stations it is being used as garbage room.
9. List of the arrested people displayed at the Police Control Room is not updated on a day to day basis.
10. The Director of Health Services reportedly has not finalized the panel of doctors to whom the arrested persons shall be forwarded for medical examination immediately after arrest and during their detention.
11. The Supreme Court had directed the state governments for widely publicising its directives in TV and radio and by issuing pamphlets in vernacular language for creating awareness among people as an antidote to abuse of rights of people by the police. Even though for some time immediately following the court order it was displayed in TV and radio but thereafter it has been blissfully forgotten. Till date no pamphlet in vernacular language has been issued by the Govt. of Orissa.
Besides the doctors and magistrates are found to be dealing with such cases of custodial torture very mechanically. While subsequently investigating into a concrete case of alleged torture of one Shri Lotus Samal by the police at Bhubaneswar reported in the press (Dharitri – 17.11.2002) during the finalization of this report PUCL team has found that the arrest witness in that case most likely has been made to sign the arrest memo duress due to the compulsions of his day-to-day working relation with the police. The medical report of the doctor of government hospital who reportedly certified the victim to be OK while signing the Inspection Memo of the victim is totally opposite to that recorded by the Jail Medical Officer on the same day.
Even though actually the victim had injuries and was paralysed in the same part of his body as recorded by the JMO, the SDJM before whom the victim was produced by the same day has not mentioned anything about the case record nor has he taken any cognizance of it. The victim alleged that he was intimidated by the police not to disclose about his torture in the custody otherwise he would be implicated in more serious charges. The victim also levelled some specific allegation against the concerned judicial officer in this regard.
If this type of gross violation of the directives could take place in the capital city itself and immediately following the workshop on implementation of the directives than the situation in the rural and other backward regions can be well guessed. That speaks volume for implementation of the guidelines.
(ii) Absence of monitoring agency – No well-defined independent and regular monitoring agency to oversee the proper implementation of the directives has been provided for in the directives of the court. Even though the Supreme Court has appointed one committee in each state consisting of judges of High Courts to oversee the implementation it may not be as much effective for obvious reasons.
(iii) Lack of earnestness by the government – It need not be mentioned further how the government’s attitude remains frustrating in implementing the directives. While the government is eloquent about modernisation of police and appears to be prepared to spend any thing for it in the name of improving law and order situation, it remains quite unconcerned about implementing any preventive steps against the umpteen cases of violation or basic civil rights by the police. When the PUCL team met the state home secretary Shri Tarun Kanti Mishra on 5.9.2002 it seemed he was quite unaware of such directives by the court and as such of any obligation of the government in this regard. When he was reminded by the team of the obligations of the government he had the stock answer that the Government didn’t have enough fund to provide for implementation of the directives, in spite of obliquely and reluctantly admitting the reported cases of violation of basic rights by the police.
(iv) Ingrained Feudal attitude of the police – The police takes any talk of citizen’s rights as an anathema and affront to its authority. During the survey the police officers in many police stations have picked up arguments with the teams that the human rights groups are out to protect the criminals only and the implementation of Supreme Court directives would severely impair the effectivity of the police in containing crime and taming the criminals. The police officers including SP, Bhubaneswar opened that the police sometimes had to resort pressure on accused only in cases of dacoity and robbery to recover the stolen property and they defended it in the name giving justice to the people suffering the loss of property.
The police also didn’t have any answer when, at least for arguments sake, the question was put that why the accused in a petty theft have to suffer the torture and death in custody or have to indefinitely languish behind bars as under-trials while a number of builders or the promoters of non banking financial companies etc are let off the books of law even after considerably swindling the general public; how far the police has been able to restore the property swindled by them. And how come the people from higher echelons of society with track records of heinous crimes make it to be the MPs and MLAs.
However to make it effective to whatever extent possible the following suggestions can be made:
2) The directives should be displayed in vernacular language not only in the police stations but also in all visible public places like stations, bus stands, parks, weekly markets, and panchayat offices in the rural area. More emphasis should be given on publicity in rural areas since people in rural areas are more vulnerable to police atrocities.
3) Pamphlets in vernacular languages be issued and distributed through panchayats.
4) Police records regarding arrest and detentions and police haajats should be made more accessible to human rights groups and public surveillance instead of shielding them behind iron curtain on the spacious plea of secrecy and security.
5) Exemplary action should be taken against police officials found to he guilty of abusing and torturing the detainees to have deterrent effect against such abuse.
6) It should be made mandatory for judicial magistrates to pay periodic surprise visits to police stations under their jurisdiction and meet the detainees in the lockup and record their observations which should be made accessible to the public.
7) Director of health service should immediately prepare a panel of doctors from among the private practitioners besides the government doctors available under every police station area to whom the detainees shall be referred for medical examination. Such panel of doctors should be made public and records of medical examination in government hospitals or private clinic should be duly signed by the examinee and be made available to him. The empanelled doctors should be given proper orientation about human rights of the detainees against possible physical and mental torture and the doctor’s obligations and accountability in this regard. The Indian Medical Council should also issue specific code of conducts for the medical practitioners in this regard.
8) The supply of formats of arrest and inspection memos to police stations be supplied with clearly marked centralised serial number to prevent their manipulation or fabrication. On the technical side, the details of the arrest witness like his present and permanent address, profession, his relation to the arrestee or the situation of arrest should he clearly mentioned in the Arrest Memo, the details of the doctor with his address and registration no. clearly mentioned in the Inspection Memo and copy of each should be handed over to the arrestee and invariably to his relative or well-wisher also. If such persons are not available then it should be sent by registered post with AD in their address.
9) Adequate provision for basic amenities like food, proper ventilation, fan, light, bedding, toilet, mosquito net or coil, should be made available in all the lockups, which would not make detention itself a torture and humiliation. Detention should be in keeping with the established dictum of law that an accused is presumed to be innocent till he is proved to be guilty.
Pramodini Pradhan, Convenor, PUCL Bhubaneswar Branch; Prashant Jena, Convenor, PUCL Cuttack Branch, Advocate Orissa High Court.
A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him of having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
The time, place of arrest and venue of custody of an arrestee must he notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the district and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
The person arrested must be made aware of his right to have someone informed of his arrest of detention as soon as he is put under arrest or is detained.
An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all Tehsils and districts as well.
Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room, it should be displayed on a conspicuous notice board.”
Talked to Sub Inspector Mr. Alok Kumar Jena (senior most officer present).
Maintaining a register since 20/5/2002, after the workshop, in which 10 columns are there. Name of the arrestee is not entered, instead a case number is entered. Name of the arresting and interrogating officer is not entered in it.
The Supreme Court Guidelines are not displayed anywhere.
A separate arrest register and memo register is maintained. We were told that Medical Inspection is being done if the arrestee wants.
One arrested: named Rajesh Parida at 10.40 of the 22nd July as mentioned in the register but the control room has not been informed yet. The reason as told to us was due to blocking of channel.
Relatives outside station are intimated only through the respective police stations in that area. No follow up system exists to ascertain the information.
Met two people under lock-up.
Arrested on the night of 22nd at 8pm. Our interview time was 6pm of 23rd. No entry has been made anywhere in police records regarding the arrest of Mahesh Sahu. No witness has been intimated/ the arrestee was not asked by the police to have any witness. He has been beaten up, as reported by the arrestee but the police officer denied any torture. His custody memo not prepared. Not sent for medical examination.
2. Arun Kumar Choudhary: Age 16/17, Father’s name: Pratap Ch. Dalei. Home-Vill: Balijhari in Narsingpur block of Cuttack district. Arrested on the 22nd of July at 10 am. He was caught carrying a stolen stereo on the 21st night. He has been beaten up.
The police officer said he would be sent to the juvenile court next day that is on the 24th.
Guidelines not displayed. Using the new register since 23rd June 2000; No separate register maintained for the interrogating officer.
There is no special lock up room for women. They are kept in the office room itself. For one woman arrested two police women are required to stay with them and they all live in the office.
Capital Police Station
Verified case no. 652 and 691 from the station diary and found that arrest memos and inspection memos have been issued. Reasons for arrest is not described in the inspection memo, only Section under which the person has
No contingency money available at the police station. The register has been prepared by the police from their pocket money.
Even simple white paper is not available.
We were also told by the OIC that there is no doctor available nearby for medical examination of the arrestees. There is no financial provision available for the expenditure incurred in going to the Capital Hospital.
Visit to the Police Control Room/Meeting with SP, Mr. Arun Kumar Sarangi
We checked the control room notice board and the last date for which the arrestee details were displayed was of 2.8.02. We checked the list of arrestees for 19.8.02 and found that the control room does not receive the information regarding the arrest of a person within 12 hours of arrest, as required by the Supreme Court direction. For instance, in the following case, the name of the arrestee was recorded in the register of the control room only on the 3rd day of arrest.
Case no. 33/02 (Shaheed Nagar Police Station); Name: Siba Sankar Majhi; Arrested on-16.8.02; Court forwarded on – 17.8.02.
Bail, not jail, the norm, says SC, but the reality is opposite
Bail, not jail, is a dominant principle of criminal law practised by every mature democracy and in India often in its breach. Be it A Raja or Kanimozhi in the 2G case, Suresh Kalmadi in the CWG case or Asaram, facing an unproven sexual assault charge, once a case becomes high profile courts are diffident to grant bail even if that flies against the express directive of the Supreme Court.
The same neglect of the principle is often seen in the case of thousands of undertrial prisoners — people who fall in a category that’s quite the opposite of the high-profile cases; men and women without resources, financial or political — who are left to languish in jail for want of bail orders from trial courts.
A Mumbai lawyer says: “It’s not only the underprivileged who fail to secure justice at a pre-trial stage, even highprofile arrests — cases that attract media hype — are often denied bail without adequate reasons for days or months.” While releasing a bunch of accused in the 2G scam case, the SC reinforced that bail ought to be a norm, not jail.
Stiff opposition by police to bail applications even when investigations are over and the accused not likely to flee, has become the norm, lawyers said. Senior crime counsel Amit Desai said: “The court must be alive to the fact that liberty, a fundamental right, is taken away in such instances. It must ensure that the investigating officer concentrates on investigation that requires an accused to be in custody so that he can secure his liberty at the earliest.”
Police often treat denial of bail as an “easy route”, say experts. “Trials take time to begin. Often pre-trial incarceration exceeds maximum punishment for the charges invoked or becomes an incentive for police not to create a water-tight case on evidence,” said advocate Saurabh Kirpal from Delhi. He added: “It becomes an easy route not to work hard at getting a conviction and treat pre-trial custody as substitute punishment.”
There are times when despite long pre-trial jail, the case may end with an acquittal, which makes a mockery of justice. The need for an arrest is to secure presence of the accused for investigation, prevent further crimes and escape, make the community safer if the accused is prone to violence, and witness tampering. When these factors are absent, bail should be automatic.
Ashok Desai, former attorney general, said, “The object of denying bail cannot be punitive because punishment starts after conviction. Until then the accused is deemed innocent. Although bail, not jail, is the principle, there are two main factors to deny bail — possibility of the accused absconding and probability that he may interfere with the investigation and witnesses.
“A court has to balance the valuable right of liberty and the interest of society. It’s here that often the prosecution suggests that if the offence is serious or the accused is an influential person, there’s a danger of his absconding. This is why courts can impose conditional bail. If a condition is transgressed, the bail can be cancelled. Bail cannot be denied to teach a lesson to one whose offence is yet to be proved.”
A series of commissions, from the third police commission to the law commission, stressed how police misuse arrest-powers. Ram Jethmalani, ace defence counsel, has for decades stressed that “pretrial arrest is neither meant to be punitive nor a punishment before verdict. It’s meant to facilitate investigation.” If an accused cooperates with the police and submits himself for investigation there’s no justification for arrest, he said.
Senior Supreme Court counsel CA Sundaram said that legally, bail is a right. Advocate Harshad Ponda said liberty is guaranteed as a fundamental right. Under the right to life, liberty cannot be denied without adequate reason. Except when justified in heinous crimes such as rape, murder and dacoity.
Added Shrikant Bhat, a leading crime counsel in Mumbai: “The SC in 1994 laid down guidelines that hold good today. It proscribed police from using their power to arrest, just because it exists, without justification.” Advocate Aabad Ponda said: “The amendment to the CrPC is to bring in some checks on indiscriminate and liberal arrests without any warrant by police.” Every offence classified as non-bailable does not justify an arrest, said advocate Anand Grover.
Even in jurisdictions abroad, as in Florida, the law is firm that bail applications be decided on grounds that don’t impinge on a person’s liberty more than necessary to aid investigation or secure society’s interest.
What the apex court says
The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
One must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act.
This court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.
Issuing elaborate guidelines on deaths in police encounter, the Supreme Court ruled that in all cases of encounter deaths there shall be mandatory registration of FIRs and investigation by CID or any other independent agency.
A bench led by Chief Justice R M Lodha also said that no officer shall be given out of turn promotion or a gallantry award for encounter operations till the inquiry is completed on its genuineness.
The court said that the magisterial inquiry should be completed expeditiously and of a police officer is found guilty of involvement in a fake encounter, he should be proceeded against legally and departmentally.
The PIL in the matter was filed by NGO, People’s Union for Civil Liberties’ (PUCL) which, along with NHRC, had also suggested for the setting up a separate and independent probe agency under NHRC or the state human rights commission to probe all encounter killings.
The plea has sought that unless proved beyond doubt that an encounter was genuine, no officer should be promoted or rewarded and compensation money for dependents of every fake encounter killing should be equivalent to the reward money given to the police in such operations.
The bench, in this matter, is separately hearing submissions relating to the proposal for streamlining the process of media briefings by police.
Furlough and Parole- A Reality Check
After much media “outrage” over his alleged ‘out of turn’ treatment by parole board and furlough authorities, Sanjay Dutt, a victim of his own fame, is back in jail having been refused an extension of his furlough. Now that the qualm-filled souls in the media and public are at rest, it is time to ask a few tough questions.
Is this to be seen as a moral victory of the media? If so, then indeed it is a hollow and impoverished one. A victory that leaves us with the pang that justice has fallen by the wayside.
Falling prey to the completely internalised public distrust that the system can ever work fairly, the media asked why “Sanju Baba” was getting so much time out from jail. A media less concerned with sensation and more with citizen’s rights would have explained the value of furlough for both the ordinary prisoner and the celebrity, and how these benefits help humanise our colonial prison system. Instead, the media, by and large, played into the prejudice in every lay mind that baulks at permitting a prisoner his chance to be treated as ‘a person’ even where the law does, that seeks to punish more than the law itself.
Parole and furlough are temporary release benefits for convict prisoners intended to reintegrate the ‘good’ prisoner with home and society. They are not necessarily to be used only to meet emergencies, but can be sought to meet family obligations or even for preparing an appeal. Importantly, they help reintegrate a convict back into society. It has been seen that long time convicts often have nowhere to go on their final release if they have not availed these benefits while in jail. The world over, sentencing without parole and furlough rights is being considered absolutely inhuman. In India, parole and furlough rules vary across most states, but, according to prison rules and recent Supreme Court judgments, both forms of temporary release are to be considered as remission of sentence rather than its suspension. While parole requires a board of members to grant release, furlough may be granted by the district administration or prison official so authorised and designated by the state government.
Notwithstanding the intent of these measure, governments, courts, parole boards, furlough granting authorities, police verification procedures, and now, media, have themselves become bottlenecks to a benefit earned out of good conduct in jail. More and more unreasonable ‘merit’ criteria are getting annexed to release eligibilities, undoing the very purpose of parole and furlough.
The eligibility for furlough, the period and number of times it can be availed in a year are largely determined by the period of imprisonment, nature of offence, subject to good conduct and ability to meet the terms of release such as of surety, securities and supervision. A prisoner who is sentenced to imprisonment in Maharashtra for a period exceeding one year but not more than five years, as in the case of Sanjay Dutt, may be normally released on furlough for a period of two weeks at a time for every year of actual imprisonment.
Was Sanjay Dutt within his rights to seek an extension of furlough? Yes he was. While we are being told that an ADG circular passed by the Prison Department in recent times permits furlough extension in Maharashtra, it is worth noting that it is permitted even under the amended Prisons (Bombay Furlough and Parole) Rules, 1959. It states:
“…The sanctioning authority may, on the application of a prisoner or otherwise, by an order in writing extend the period of furlough for such further period as may be specified in such order on the same conditions on which the prisoner was originally granted furlough or on such other conditions as the sanctioning authority may determine”. This means that a furlough extension need not be an obstacle race in every case. Moreover, the Rules add, “Ordinarily (italics mine) furlough shall not be granted to a prisoner within a period of six months from the date of his return from parole”. This means that in certain exceptional cases, discretionary powers of Inspector General of Prisons or the Deputy Inspector General could apply favourably even here.
With regard to parole, the legality of seeking and availing an extension seems to have been clarified in the 2012 case of Rupinderjeet Kaur v. State Of Punjab and Others, where the High Court of Haryana-Punjab was categorical in upholding the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, which mentions no restrictions on the number of times a prisoner may avail emergency parole, nor any on the possibility of a parole after the expiry of a parole granted recently. Not surprisingly, Punjab had the highest number of parole releases at 8,848 out of a national total number 33,031 in 2013 (National Crime Research Bureau), with only 119 parolees absconding. The Punjab state government has further humanised the rules for temporary release, and as recently as November 2014, delegated the power to sanction furlough releases to Deputy Commissioners for speedier action at district levels.
Why is this model of ‘care in custody’ not a privileged one to emulate and standardise as a bar set high according to modern penal reform goals of release and reintegration? Unfortunately, prisons have not yet risen to the status of ‘correctional facilities’. It is ‘security’, with its restrictions on mulaqat and reading materials, increasingly high lock-up hours, that continues to be the dominant practice. While governments cast in the old mould will tend to seek more punitive and restrictive models of penal administration, why should media be party to pushing the bar down on prison reform?
The problem, additionally, is that prisons are a state subject, and though all states are governed under the antiquated Prisons Act, 1894, there is a parity problem in the Jail Manuals of the states which outline the rules for the terms of treatment of prisoners. So, while in some states parole boards ask for one surety, others have begun asking for two, of 50,000 rupees security each! Which class of Indian prisoners can produce such sureties? Convicts have to either queue up in court for long months to get their sureties and securities reduced or continue in jail! While some courts like the Punjab-Haryana and Maharashtra High Courts have been more inclusive in their approach, other states like Delhi and Rajasthan have been restrictive. Both Delhi and Rajasthan High Courts refuse to accept parole applications of convicts whose appeals are pending before the Court, though one of the two Division Benches in Rajasthan has recently altered its stand. The right to appeal one’s conviction is a principle of fair trial; our law permits it. Why should availing this right dispossess any prisoner of their right to parole?
With regards to Maharashtra, the Nagpur Bench of the High Court said it all. Taking note of procedures in Sanjay Dutt’s case in 2014, the court chided the state government even while granting the star his parole, saying, “Many prisoners suffer from several ailments but could not get a parole because the police did not submit their papers on time,” and urged the Maharashtra government to better utilise its discretionary powers and not discriminate in its police verification. If Nagpur Bench verdict is to be interpreted properly, it would be this – Why not make more people ‘truly’ eligible instead of a few who have the wherewithal to make themselves so?
As regards Sanjay Dutt having been in the way of other prisoners’ rights, that is media bluff that must be called. Sanjay Dutt’s furlough case was not a prima facie case for rejection, in which case the Superintendent would not even have forwarded it to the District Magistrate through the DSP or Commissioner. Sanjay Dutt had met the terms of surety and security, given residential proof of where he would be during his furlough period. He even diligently arrived at the jail when his furlough period was over and a decision over his application was pending, thus allaying any suspicion or risk of ‘furlough-jump’. So if all these terms were met on their individual merit, what were the grounds of rejection? How could the grant of his furlough extension have come in the way of anyone else’s application? Is every case not decided on its individual merits and demerits, and if the demerits are borne of systemic bottlenecks marked by illiberal interpretation of reformative law or prejudice against the commoner’s rights, why should someone who has made his way through these defects be punished for it? But he has. And media needs to see the damage it has done by falling prey to lowering the bar for prison reforms instead of raising it towards the best standards of both release and watch.
But why is it that it takes a Sanjay Dutt, Vishal Yadav or Anil Gandhi to push through the recalcitrant system to stake their claim to benefits intended for all eligible convicts? What hinders the common prisoner from benefiting from the system? For the typical convict is poor: poor in income, education, support, representation and legal knowledge.
The finger, therefore, needs to be more aptly pointed towards the legal community. The media repeatedly overlooks the important fact that if Sanjay Dutt got past the line (if at all he did) – that cramped, pathetically slow queue of people forced to limp through the system without the promised safeguards – it is because he has access to the best legal advice and legal representation where his lawyers will leave no stone unturned to identify beneficial provisions in the law that would prevent any unnecessary period of stay inside jail, who would make it their business to whip up every possible provision in the jail manual, its new rules and circulars, every craft and strategy at hand for release, for that is indeed the story that has been masked in the demonisation of Sanjay Dutt. How many behind bars have the benefit of knowledge of the law for their own protection? And if they do not, let us not turn to hound Sanjay Dutt for it, let us not valorise that slow and ragged queue, let us not fetishize our inhumanity and inefficiency. Let us ask questions of our legal aid bodies for the quality of advice and representation they provide, our lawyers and legal officers who do not pull up their socks for indigent and underprivileged inmates in a manner where more informed and meritorious applications can get filed.
Let us ask our police why they swallow up the papers of the poor, why their ‘watch’ over those released is not rigorous enough. Let us ask our release boards why they do not meet regularly, why their procedures are not transparent. Let us ask the parole boards, furlough sanctioning authorities and courts why they add new merit criteria that can only disempower, why they think that convicts on appeal cannot apply for parole, why they insist on impossible security amounts for which no surety will come forward, why they have made little use of release on personal bond though law permits it. Finally, let us ask the state governments why they cannot have a better supervisory and offender-management system, better trained police and probation officers, and why these officers deliver with diligent delay, such mechanical, insincere and terse reports on ‘risk to law and order’?
The most expeditious point at which applications for temporary release may be moved is through the officer-in-charge of the jail who must first affirm the period of detention and the conduct of the inmate to ascertain eligibility. Yet this is the point where we discover sleight of hand, a ruse manufactured to keep people longer behind bars. Jail and prosecution officers have been known to add the days of parole unfairly back into the period to be spent in jail, interpreting it conveniently, as a suspension of sentence. It took a Constitution Bench of the Apex Court, in 2000, in the case of Sunil Fulchand Shah v. Union of India and Others, to straighten out this twisted logic. In Fulchand’s case, the prosecution was adding a merciless 222 extra days to the person’s period of imprisonment!
If the question of undue privilege worries us, so should the loss of privilege. If misuse of the system bothers us, so should its disuse. If a few ‘high-risk’ or ‘high class’ offenders are getting past the even higher gates of parole boards and furlough authorities, then, indeed, the system must be taken to task for this. Not by punishing them out of their chances, but by ensuring that the plea of numerous commoners and ‘no-risk’ prisoners wasting away in Indian jails today, in spite of their paroles and furloughs being granted, is heard on equal merit. For what can be more defeating than seeing freedom slip away between the fingers due to sheer twist of the law and its keepers?
It is sad and ironic that the State of Bombay, which, since the 1950s, has played a lead role in jail reforms, giving a road map to other states as well as to the Jail Reform Committee that initiated the work on the Model Prison Manual in order to make uniform the care, welfare, discipline, training and treatment of prisoners across the country, finds itself in a corner today. With an unreasonable media at their heels and state government buckling in, it seems the authorities could not justify how their discretionary powers could have favoured Dutt without being a direct discrimination against other applicants.
For the ‘humanization’ phase in correctional administration envisaged by the Model Prison Manual to really take off, Jail Manuals need to be amended towards uniform and high standards of care and supervision that emphasize release and yet keep the watch. The criminal justice system, state governments, the media and civil society must internalise that the curtailment of liberty is itself the punishment for one undergoing sentence. Their endeavour should be not to derogate and crush the meagre benefits to a prisoner, but to widen the window of contact between the one in jail and his family, to institutionalise across states “the primary objective of punishment as reclamation and rehabilitation of the offender”. If redeemers are not to be seen as the end of the road, then let us not make a case of ‘mistaken’ privileges the easy shield to hide the system’s defects of containment, ill-preparedness and systemic denial of prisoners’ rights, and let not the media be, either its eager, or unwitting, bed-fellow.
About the Author
Sana Das is an alumni of the Jawaharlal Nehru University and The Indian Institute of Technology, Delhi. She currently works as the Coordinator for the Prison Reforms Programme at The Commonwealth Human Rights Initiative (CHRI).
Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977
1. The following rules are not intended to describe in detail a model system of penal institutions. They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.
2. In view of the great variety of legal, social, economic and geographical conditions of the world, it is evident that not all of the rules are capable of application in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations.
3. On the other hand, the rules cover a field in which thought is constantly developing. They are not intended to preclude experiment and practices, provided these are in harmony with the principles and seek to further the purposes which derive from the text of the rules as a whole. It will always be justifiable for the central prison administration to authorize departures from the rules in this spirit.
4. (1) Part I of the rules covers the general management of institutions, and is applicable to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to “security measures” or corrective measures ordered by the judge.
(2) Part II contains rules applicable only to the special categories dealt with in each section. Nevertheless, the rules under section A, applicable to prisoners under sentence, shall be equally applicable to categories of prisoners dealt with in sections B, C and D, provided they do not conflict with the rules governing those categories and are for their benefit.
5. (1) The rules do not seek to regulate the management of institutions set aside for young persons such as Borstal institutions or correctional schools, but in general part I would be equally applicable in such institutions.
(2) The category of young prisoners should include at least all young persons who come within the jurisdiction of juvenile courts. As a rule, such young persons should not be sentenced to imprisonment.
RULES OF GENERAL APPLICATION
6. (1) The following rules shall be applied impartially. There shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
(2) On the other hand, it is necessary to respect the religious beliefs and moral precepts of the group to which a prisoner belongs.
7. (1) In every place where persons are imprisoned there shall be kept a bound registration book with numbered pages in which shall be entered in respect of each prisoner received:
(a) Information concerning his identity;
(b) The reasons for his commitment and the authority therefor;
(c) The day and hour of his admission and release.
(2) No person shall be received in an institution without a valid commitment order of which the details shall have been previously entered in the register.
Separation of categories
8. The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus,
(a) Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate;
(b) Untried prisoners shall be kept separate from convicted prisoners;
(c) Persons imprisoned for debt and other civil prisoners shall be kept separate from persons imprisoned by reason of a criminal offence;
(d) Young prisoners shall be kept separate from adults.
9. (1) Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.
(2) Where dormitories are used, they shall be occupied by prisoners carefully selected as being suitable to associate with one another in those conditions. There shall be regular supervision by night, in keeping with the nature of the institution.
10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.
11. In all places where prisoners are required to live or work,
(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.
12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.
13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.
14. All parts of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.
15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.
16. In order that prisoners may maintain a good appearance compatible with their self-respect, facilities shall be provided for the proper care of the hair and beard, and men shall be enabled to shave regularly.
Clothing and bedding
17. (1) Every prisoner who is not allowed to wear his own clothing shall be provided with an outfit of clothing suitable for the climate and adequate to keep him in good health. Such clothing shall in no manner be degrading or humiliating.
(2) All clothing shall be clean and kept in proper condition. Underclothing shall be changed and washed as often as necessary for the maintenance of hygiene.
(3) In exceptional circumstances, whenever a prisoner is removed outside the institution for an authorized purpose, he shall be allowed to wear his own clothing or other inconspicuous clothing.
18. If prisoners are allowed to wear their own clothing, arrangements shall be made on their admission to the institution to ensure that it shall be clean and fit for use.
19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.
20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.
(2) Drinking water shall be available to every prisoner whenever he needs it.
Exercise and sport
21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.
(2) Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end space, installations and equipment should be provided.
22. (1) At every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry. The medical services should be organized in close relationship to the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.
(2) Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.
(3) The services of a qualified dental officer shall be available to every prisoner.
23. (1) In women’s institutions there shall be special accommodation for all necessary pre-natal and post-natal care and treatment. Arrangements shall be made wherever practicable for children to be born in a hospital outside the institution. If a child is born in prison, this fact shall not be mentioned in the birth certificate.
(2) Where nursing infants are allowed to remain in the institution with their mothers, provision shall be made for a nursery staffed by qualified persons, where the infants shall be placed when they are not in the care of their mothers.
24. The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical or mental illness and the taking of all necessary measures; the segregation of prisoners suspected of infectious or contagious conditions; the noting of physical or mental defects which might hamper rehabilitation, and the determination of the physical capacity of every prisoner for work.
25. (1) The medical officer shall have the care of the physical and mental health of the prisoners and should daily see all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.
(2) The medical officer shall report to the director whenever he considers that a prisoner’s physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.
26. (1) The medical officer shall regularly inspect and advise the director upon:
(a) The quantity, quality, preparation and service of food;
(b) The hygiene and cleanliness of the institution and the prisoners;
(c) The sanitation, heating, lighting and ventilation of the institution;
(d) The suitability and cleanliness of the prisoners’ clothing and bedding;
(e) The observance of the rules concerning physical education and sports, in cases where there is no technical personnel in charge of these activities.
(2) The director shall take into consideration the reports and advice that the medical officer submits according to rules 25 (2) and 26 and, in case he concurs with the recommendations made, shall take immediate steps to give effect to those recommendations; if they are not within his competence or if he does not concur with them, he shall immediately submit his own report and the advice of the medical officer to higher authority.
Discipline and punishment
27. Discipline and order shall be maintained with firmness, but with no more restriction than is necessary for safe custody and well-ordered community life.
28. (1) No prisoner shall be employed, in the service of the institution, in any disciplinary capacity.
(2) This rule shall not, however, impede the proper functioning of systems based on self-government, under which specified social, educational or sports activities or responsibilities are entrusted, under supervision, to prisoners who are formed into groups for the purposes of treatment.
29. The following shall always be determined by the law or by the regulation of the competent administrative authority:
(a) Conduct constituting a disciplinary offence;
(b) The types and duration of punishment which may be inflicted;
(c) The authority competent to impose such punishment.
30. (1) No prisoner shall be punished except in accordance with the terms of such law or regulation, and never twice for the same offence.
(2) No prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his defence. The competent authority shall conduct a thorough examination of the case.
(3) Where necessary and practicable the prisoner shall be allowed to make his defence through an interpreter.
31. Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.
32. (1) Punishment by close confinement or reduction of diet shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he is fit to sustain it.
(2) The same shall apply to any other punishment that may be prejudicial to the physical or mental health of a prisoner. In no case may such punishment be contrary to or depart from the principle stated in rule 31.
(3) The medical officer shall visit daily prisoners undergoing such punishments and shall advise the director if he considers the termination or alteration of the punishment necessary on grounds of physical or mental health.
Instruments of restraint
33. Instruments of restraint, such as handcuffs, chains, irons and strait-jackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other instruments of restraint shall not be used except in the following circumstances:
(a) As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority;
(b) On medical grounds by direction of the medical officer;
(c) By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.
34. The patterns and manner of use of instruments of restraint shall be decided by the central prison administration. Such instruments must not be applied for any longer time than is strictly necessary.
Information to and complaints by prisoners
35. (1) Every prisoner on admission shall be provided with written information about the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution.
(2) If a prisoner is illiterate, the aforesaid information shall be conveyed to him orally.
36. (1) Every prisoner shall have the opportunity each week day of making requests or complaints to the director of the institution or the officer authorized to represent him.
(2) It shall be possible to make requests or complaints to the inspector of prisons during his inspection. The prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director or other members of the staff being present.
(3) Every prisoner shall be allowed to make a request or complaint, without censorship as to substance but in proper form, to the central prison administration, the judicial authority or other proper authorities through approved channels.
(4) Unless it is evidently frivolous or groundless, every request or complaint shall be promptly dealt with and replied to without undue delay.
Contact with the outside world
37. Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.
38. (1) Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong.
(2) Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.
39. Prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorized or controlled by the administration.
40. Every institution shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books, and prisoners shall be encouraged to make full use of it.
41. (1) If the institution contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed or approved. If the number of prisoners justifies it and conditions permit, the arrangement should be on a full-time basis.
(2) A qualified representative appointed or approved under paragraph (1) shall be allowed to hold regular services and to pay pastoral visits in private to prisoners of his religion at proper times.
(3) Access to a qualified representative of any religion shall not be refused to any prisoner. On the other hand, if any prisoner should object to a visit of any religious representative, his attitude shall be fully respected.
42. So far as practicable, every prisoner shall be allowed to satisfy the needs of his religious life by attending the services provided in the institution and having in his possession the books of religious observance and instruction of his denomination.
Retention of prisoners’ property
43. (1) All money, valuables, clothing and other effects belonging to a prisoner which under the regulations of the institution he is not allowed to retain shall on his admission to the institution be placed in safe custody. An inventory thereof shall be signed by the prisoner. Steps shall be taken to keep them in good condition.
(2) On the release of the prisoner all such articles and money shall be returned to him except in so far as he has been authorized to spend money or send any such property out of the institution, or it has been found necessary on hygienic grounds to destroy any article of clothing. The prisoner shall sign a receipt for the articles and money returned to him.
(3) Any money or effects received for a prisoner from outside shall be treated in the same way.
(4) If a prisoner brings in any drugs or medicine, the medical officer shall decide what use shall be made of them.
Notification of death, illness, transfer, etc.
44. (1) Upon the death or serious illness of, or serious injury to a prisoner, or his removal to an institution for the treatment of mental affections, the director shall at once inform the spouse, if the prisoner is married, or the nearest relative and shall in any event inform any other person previously designated by the prisoner.
(2) A prisoner shall be informed at once of the death or serious illness of any near relative. In case of the critical illness of a near relative, the prisoner should be authorized, whenever circumstances allow, to go to his bedside either under escort or alone.
(3) Every prisoner shall have the right to inform at once his family of his imprisonment or his transfer to another institution.
Removal of prisoners
45. (1) When the prisoners are being removed to or from an institution, they shall be exposed to public view as little as possible, and proper safeguards shall be adopted to protect them from insult, curiosity and publicity in any form.
(2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited.
(3) The transport of prisoners shall be carried out at the expense of the administration and equal conditions shall obtain for all of them.
46. (1) The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of the institutions depends.
(2) The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.
(3) To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison officers and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.
47. (1) The personnel shall possess an adequate standard of education and intelligence.
(2) Before entering on duty, the personnel shall be given a course of training in their general and specific duties and be required to pass theoretical and practical tests.
(3) After entering on duty and during their career, the personnel shall maintain and improve their knowledge and professional capacity by attending courses of in-service training to be organized at suitable intervals.
48. All members of the personnel shall at all times so conduct themselves and perform their duties as to influence the prisoners for good by their example and to command their respect.
49. (1) So far as possible, the personnel shall include a sufficient number of specialists such as psychiatrists, psychologists, social workers, teachers and trade instructors.
(2) The services of social workers, teachers and trade instructors shall be secured on a permanent basis, without thereby excluding part-time or voluntary workers.
50. (1) The director of an institution should be adequately qualified for his task by character, administrative ability, suitable training and experience.
(2) He shall devote his entire time to his official duties and shall not be appointed on a part-time basis.
(3) He shall reside on the premises of the institution or in its immediate vicinity.
(4) When two or more institutions are under the authority of one director, he shall visit each of them at frequent intervals. A responsible resident official shall be in charge of each of these institutions.
51. (1) The director, his deputy, and the majority of the other personnel of the institution shall be able to speak the language of the greatest number of prisoners, or a language understood by the greatest number of them.
(2) Whenever necessary, the services of an interpreter shall be used.
52. (1) In institutions which are large enough to require the services of one or more full-time medical officers, at least one of them shall reside on the premises of the institution or in its immediate vicinity.
(2) In other institutions the medical officer shall visit daily and shall reside near enough to be able to attend without delay in cases of urgency.
53. (1) In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
(2) No male member of the staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.
54. (1) Officers of the institutions shall not, in their relations with the prisoners, use force except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. Officers who have recourse to force must use no more than is strictly necessary and must report the incident immediately to the director of the institution.
(2) Prison officers shall be given special physical training to enable them to restrain aggressive prisoners.
(3) Except in special circumstances, staff performing duties which bring them into direct contact with prisoners should not be armed. Furthermore, staff should in no circumstances be provided with arms unless they have been trained in their use.
55. There shall be a regular inspection of penal institutions and services by qualified and experienced inspectors appointed by a competent authority. Their task shall be in particular to ensure that these institutions are administered in accordance with existing laws and regulations and with a view to bringing about the objectives of penal and correctional services.
RULES APPLICABLE TO SPECIAL CATEGORIES
A. Prisoners under sentence
56. The guiding principles hereafter are intended to show the spirit in which penal institutions should be administered and the purposes at which they should aim, in accordance with the declaration made under Preliminary Observation 1 of the present text.
57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.
58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.
59. To this end, the institution should utilize all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.
60. (1) The regime of the institution should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.
(2) Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release regime organized in the same institution or in another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid.
61. The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it. Community agencies should, therefore, be enlisted wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners. There should be in connection with every institution social workers charged with the duty of maintaining and improving all desirable relations of a prisoner with his family and with valuable social agencies. Steps should be taken to safeguard, to the maximum extent compatible with the law and the sentence, the rights relating to civil interests, social security rights and other social benefits of prisoners.
62. The medical services of the institution shall seek to detect and shall treat any physical or mental illnesses or defects which may hamper a prisoner’s rehabilitation. All necessary medical, surgical and psychiatric services shall be provided to that end.
63. (1) The fulfilment of these principles requires individualization of treatment and for this purpose a flexible system of classifying prisoners in groups; it is therefore desirable that such groups should be distributed in separate institutions suitable for the treatment of each group.
(2) These institutions need not provide the same degree of security for every group. It is desirable to provide varying degrees of security according to the needs of different groups. Open institutions, by the very fact that they provide no physical security against escape but rely on the self-discipline of the inmates, provide the conditions most favourable to rehabilitation for carefully selected prisoners.
(3) It is desirable that the number of prisoners in closed institutions should not be so large that the individualization of treatment is hindered. In some countries it is considered that the population of such institutions should not exceed five hundred. In open institutions the population should be as small as possible.
(4) On the other hand, it is undesirable to maintain prisons which are so small that proper facilities cannot be provided.
64. The duty of society does not end with a prisoner’s release. There should, therefore, be governmental or private agencies capable of lending the released prisoner efficient after-care directed towards the lessening of prejudice against him and towards his social rehabilitation.
65. The treatment of persons sentenced to imprisonment or a similar measure shall have as its purpose, so far as the length of the sentence permits, to establish in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so. The treatment shall be such as will encourage their self-respect and develop their sense of responsibility.
66. (1) To these ends, all appropriate means shall be used, including religious care in the countries where this is possible, education, vocational guidance and training, social casework, employment counselling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner, taking account of his social and criminal history, his physical and mental capacities and aptitudes, his personal temperament, the length of his sentence and his prospects after release.
(2) For every prisoner with a sentence of suitable length, the director shall receive, as soon as possible after his admission, full reports on all the matters referred to in the foregoing paragraph. Such reports shall always include a report by a medical officer, wherever possible qualified in psychiatry, on the physical and mental condition of the prisoner.
(3) The reports and other relevant documents shall be placed in an individual file. This file shall be kept up to date and classified in such a way that it can be consulted by the responsible personnel whenever the need arises.
Classification and individualization
67. The purposes of classification shall be:
(a) To separate from others those prisoners who, by reason of their criminal records or bad characters, are likely to exercise a bad influence;
(b) To divide the prisoners into classes in order to facilitate their treatment with a view to their social rehabilitation.
68. So far as possible separate institutions or separate sections of an institution shall be used for the treatment of the different classes of prisoners.
69. As soon as possible after admission and after a study of the personality of each prisoner with a sentence of suitable length, a programme of treatment shall be prepared for him in the light of the knowledge obtained about his individual needs, his capacities and dispositions.
70. Systems of privileges appropriate for the different classes of prisoners and the different methods of treatment shall be established at every institution, in order to encourage good conduct, develop a sense of responsibility and secure the interest and co-operation of the prisoners in their treatment.
71. (1) Prison labour must not be of an afflictive nature.
(2) All prisoners under sentence shall be required to work, subject to their physical and mental fitness as determined by the medical officer.
(3) Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day.
(4) So far as possible the work provided shall be such as will maintain or increase the prisoners, ability to earn an honest living after release.
(5) Vocational training in useful trades shall be provided for prisoners able to profit thereby and especially for young prisoners.
(6) Within the limits compatible with proper vocational selection and with the requirements of institutional administration and discipline, the prisoners shall be able to choose the type of work they wish to perform.
72. (1) The organization and methods of work in the institutions shall resemble as closely as possible those of similar work outside institutions, so as to prepare prisoners for the conditions of normal occupational life.
(2) The interests of the prisoners and of their vocational training, however, must not be subordinated to the purpose of making a financial profit from an industry in the institution.
73. (1) Preferably institutional industries and farms should be operated directly by the administration and not by private contractors.
(2) Where prisoners are employed in work not controlled by the administration, they shall always be under the supervision of the institution’s personnel. Unless the work is for other departments of the government the full normal wages for such work shall be paid to the administration by the persons to whom the labour is supplied, account being taken of the output of the prisoners.
74. (1) The precautions laid down to protect the safety and health of free workmen shall be equally observed in institutions.
(2) Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to free workmen.
75. (1) The maximum daily and weekly working hours of the prisoners shall be fixed by law or by administrative regulation, taking into account local rules or custom in regard to the employment of free workmen.
(2) The hours so fixed shall leave one rest day a week and sufficient time for education and other activities required as part of the treatment and rehabilitation of the prisoners.
76. (1) There shall be a system of equitable remuneration of the work of prisoners.
(2) Under the system prisoners shall be allowed to spend at least a part of their earnings on approved articles for their own use and to send a part of their earnings to their family.
(3) The system should also provide that a part of the earnings should be set aside by the administration so as to constitute a savings fund to be handed over to the prisoner on his release.
Education and recreation
77. (1) Provision shall be made for the further education of all prisoners capable of profiting thereby, including religious instruction in the countries where this is possible. The education of illiterates and young prisoners shall be compulsory and special attention shall be paid to it by the administration.
(2) So far as practicable, the education of prisoners shall be integrated with the educational system of the country so that after their release they may continue their education without difficulty.
78. Recreational and cultural activities shall be provided in all institutions for the benefit of the mental and physical health of prisoners.
Social relations and after-care
79. Special attention shall be paid to the maintenance and improvement of such relations between a prisoner and his family as are desirable in the best interests of both.
80. From the beginning of a prisoner’s sentence consideration shall be given to his future after release and he shall be encouraged and assisted to maintain or establish such relations with persons or agencies outside the institution as may promote the best interests of his family and his own social rehabilitation.
81. (1) Services and agencies, governmental or otherwise, which assist released prisoners to re-establish themselves in society shall ensure, so far as is possible and necessary, that released prisoners be provided with appropriate documents and identification papers, have suitable s and work to go to, are suitably and adequately clothed having regard to the climate and season, and have sufficient means to reach their destination and maintain themselves in the period immediately following their release.
(2) The approved representatives of such agencies shall have all necessary access to the institution and to prisoners and shall be taken into consultation as to the future of a prisoner from the beginning of his sentence.
(3) It is desirable that the activities of such agencies shall be centralized or co-ordinated as far as possible in order to secure the best use of their efforts.
B. Insane and mentally abnormal prisoners
82. (1) Persons who are found to be insane shall not be detained in prisons and arrangements shall be made to remove them to mental institutions as soon as possible.
(2) Prisoners who suffer from other mental diseases or abnormalities shall be observed and treated in specialized institutions under medical management.
(3) During their stay in a prison, such prisoners shall be placed under the special supervision of a medical officer.
(4) The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment.
83. It is desirable that steps should be taken, by arrangement with the appropriate agencies, to ensure if necessary the continuation of psychiatric treatment after release and the provision of social-psychiatric after-care.
C. Prisoners under arrest or awaiting trial
84. (1) Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as “untried prisoners” hereinafter in these rules.
(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.
(3) Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only.
85. (1) Untried prisoners shall be kept separate from convicted prisoners.
(2) Young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions.
86. Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.
87. Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food.
88. (1) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.
(2) If he wears prison dress, it shall be different from that supplied to convicted prisoners.
89. An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.
90. An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.
91. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.
92. An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.
93. For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.
D. Civil prisoners
94. In countries where the law permits imprisonment for debt, or by order of a court under any other non-criminal process, persons so imprisoned shall not be subjected to any greater restriction or severity than is necessary to ensure safe custody and good order. Their treatment shall be not less favourable than that of untried prisoners, with the reservation, however, that they may possibly be required to work.
E. Persons arrested or detained without charge
95. Without prejudice to the provisions of article 9 of the International Covenant on Civil and Political Rights, persons arrested or imprisoned without charge shall be accorded the same protection as that accorded under part I and part II, section C. Relevant provisions of part II, section A, shall likewise be applicable where their application may be conducive to the benefit of this special group of persons in custody, provided that no measures shall be taken implying that re-education or rehabilitation is in any way appropriate to persons not convicted of any criminal offence.
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