Special Feature: Nelson Mandela International Day

UNODC Deep Dive Dialogue: "Prisoners have the same human rights as ordinary citizens," say experts


UNODC South Asia presents its latest e-feature, the "Deep Dive" Dialogues, an effort to foster an open dialogue between leading changemakers and to bring to you the best of insights on security, justice and health.

New Delhi, India/July 18, 2018: Observing the Nelson Mandela International Day, an eminent panel of experts in law and policing underscored the need to protect the rights of prisoners, while deliberating on the present challenges in prisons and the scope for comprehensive criminal justice reforms.  

Ms. Kanwaljit Deol, Indian police veteran and former Director General (Investigations) at the National Human Rights Commission, Ms. Vrinda Grover, Advocate, Supreme Court of India & Mr. Sergey Kapinos, Representative, UNODC Regional Office for South Asia called for prisons to adopt a rehabilitative rather than punitive approach. "Prisoners enjoy the same human rights as ordinary citizens", they concurred, in an exclusive interaction with UNODC's Samarth Pathak .

Watch the complete video here:  https://www.youtube.com/watch?v=KTEmnJfe6k4&feature=youtu.be

Following are selected excerpts from the discussion

Q. Today, one is reminded of Nelson Mandela's famous statement, and I quote: "It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones." How relevant is this quote in today's time?

Kanwaljit Deol: The quote is very relevant because it makes us reflect on how we treat our women, how we treat our children and how we treat our weakest links. That is the most important thing because the highest get treated well everywhere, even in jail. It is important to remember that inmates have given up only one right, and that is their right to freedom of movement. All their other rights, including their fundamental and human rights, remain. I would like to add that unfortunately, it is also a reflection of the economic status of the society and since we are a poor country, our jails are kept at the worst level with very little funding and budgeting. 

Sergey Kapinos: I agree that this is a very relevant and topical quote. More so because I believe that the prison system is a mirror of the state of society. That is why, in many countries, the prison system is very sensitive and lacks access by civil society and media. There is a need to give much more attention to the development of prisons and to promote human rights, because inmates in prisons are still citizens and should not be denied their basic human rights as any other citizens. 

Vrinda Grover: If I may add a strand here, I think there are two ways in which one can link what is happening in the prisons. One is looking at the criminal justice system and the delays happening in the system, and the spill off that is obviously seen in the prison population. As rightly said before, both in terms of resources and attention, very little is being given to prisons. The other aspect is, in India, we have multiple vulnerable groups ranging from dalits to adivasis (tribals) to persons of religious and ethnic minorities. If one looks at what their experiences are, we can see the discrimination and marginalization that these people face in society. This gets further perpetuated inside the prison, if not further embedded.                                                                                                                                            

Q. What are some of the main challenges that affect prisons and inmates?

Kanwaljit Deol: I think the most important one is that of overcrowding, and this has to do with our criminal justice system. About 67-70 percent of the people in jails are undertrials, and they are not even supposed to be there. The jail system is made in such a way that all facilities are meant for the convicts--for instance, convicts are given jobs, convicts work, convicts receive vocational training--whereas undertrials are supposed to be in there for a short term. However, they turn out to spend most of their lives there, so overcrowding is the main issue. We have up to 200-300 percent overcrowding in many jails across the country, and resources are few.

Vrinda Grover: So what are the ways out? A few years ago, the Supreme Court of India gave a landmark judgement with the introduction of a new provision in the court of criminal procedure, 436 A, saying if you are charged with or arrested in an offense and if you have spent half the time already in custody, then you should be released on bail. However, it was found that despite the orders of the Supreme Court, neither the prison staff nor the courts were actually ensuring whether such prisoners were out on bail, because a large segment of people's access to justice is mediated through panel lawyers and legal aid lawyers. Now, the Supreme Court has pushed for the setting up of what are called Undertrial Review Committees in every single state and district, to review whether the person has spent half the time that they may, if convicted. This would cover some segment of the undertrial population. 

I did an extensive study in Chhattisgarh, particularly in the Bastar area, which is largely tribal dominated. The rate of acquittal in Bastar, as per the National Crime Record Bureau (NCRB) data is 95.7%, where they are all arrested under things like Unlawful Actives Prevention Act because there is a conflict going on but there is no conviction that takes place. However, between three to seven years on an average, are spent in prison. So, the other aspect is that bail is very important and we need to actually adopt a very proactive approach towards the grant of bail pending trial. The issue of surety is equally important--when bail orders are given, the poor are unable to provide surety. Should they then be released on personal bonds? These are the questions the courts are today grappling with and I think the Supreme Court is sending out a message, but it is taking time to percolate down. Also, I do not think it is helpful when the media adopts a hostile approach towards people being granted bails, because that then creates a different impression in the society.

Sergey Kapinos:  India is not unique in terms of having challenges. As you know, UNODC has a very broad mandate that covers almost every sphere of the criminal justice system. We have excellent expertise in many areas and we assess the developments in several areas of criminal justice on a global scale. There is a phenomenon of prison crisis in many countries, not every but many countries are facing similar challenges. Every country has its own specificity, but we can single out the common denominator and that is overcrowding. In many cases, this is a result of abuse of a custodial measures. Pre-trial detentions are one of the main sources of increase in prison population, and they should be addressed. Another issue is the prevention of crime, which should be the crux of activities of law enforcement. Prevention means not only prevention of mere delinquency, but prevention of relapse into crime as well and this is where the prison system can play a crucial role. 

Q. Among the other issues, how critical are radicalisation and health risks among prisoners?

Sergey Kapinos: Radicalisation is very sensitive, in terms of being a real challenge against the backdrop of global terrorist threats. In many cases, prisons have become crime schools and a fertile breeding ground for radicalisation. As is known, radicalisation leads to violent extremism, which in turn lead to terrorism. Therefore, it is important to prevent radicalisation and this largely depends on effective prison management that promotes human rights and supports dignity of all those in prisons. The focus should not only be on punishment, but on correction, social integration and rehabilitation of inmates. The United Nations has developed a unique set of rules for treatment of prisoners, which are referred to as the 'Standard Minimum Rules for Treatment of Prisoners', also known as the 'Nelson Mandela Rules'. These constitute the basis for treatment of prisoners and the simplest and in some cases, the most effective thing is to follow these recommendations.

Kanwaljit Deol: Of course. I am afraid that the reform aspect of prisons is not working anywhere, not only in a poor country like ours but anywhere. We have not really taken prisons to be reformative, rehabilitative and reintegrated with society. Surprisingly, India has a very small percentage of its population in jails, unlike the larger and more developed countries. Therefore, it becomes easy to sort of put them under a radar and forget about them. The preventive aspect then becomes really difficult because even if a young innocent individual goes into the jail once, he comes out a hardened criminal. That is where the radicalisation is really seen.

The second issue is health, and it is a major problem. When I was with the National Human Rights Commission, instructions were issued to build a format that when a person comes into jail, they were to be medically examined and an appropriate treatment plan was to be formulated accordingly. However, this instruction is followed more in its breach. Because of overcrowding, there is an acute lack of facilities, with very little medical support and infrastructure. The prevalence of diseases such as scabies and tuberculosis is very high in prisons, and it gets much worse for women in terms of hygiene and sanitation related issues.

Vrinda Grover: I just wanted to pick on that. There are three aspects of health in prisons. There is no provision of sanitary napkins for women in jails. All it requires is a notification across states about the requirement of sanitary napkins to be provided every month to women, otherwise it becomes a source of personal hygiene issues. Secondly, WHO has set out what should be the basic nutrition that a person is provided every day. If you look at the jail manuals across the country, the diet is laid out in much detail. However, there is no provision anywhere of certain aspects of protein. For example, egg is provided in prison only when doctor recommends, vegetables are provided once a day. So I think somewhere we need to align policies with basic nutrition. Thirdly, diseases such as scabies and skin diseases are rampant. I would also like to point out that if the court is convicting a person with a severe form of physical disability, and if the Indian prisons are not built to house a person with physical disability, then how will the rights prescribed in Article 21 be respected?

Q.  This brings us to our next question. What do prison reforms mean to you? And how can our prison systems be made more humane? 

Vrinda Grover:  We should look at as to what are the fundamental and human rights of a prisoner. It was mentioned that prisoners do not account in the larger scheme of things. One of the reasons for this is today if you are actually in jail, you can contest an election in India but cannot vote. I think if we could give voting rights to prisoners--and there is no reason their voting rights should be taken away, because they are citizens of the country--then perhaps they will have a say and people will hear them as a constituency.  So if we were to treat the undertrial or convicted prisoner as somebody who continues to remain a citizen and that his or her rights remain, then instead of prison reforms we would be focusing on what entitlements and rights is the state obliged to provide and fulfill?

Kanwaljit Deol: I think that the prisoners themselves need to be given a voice and proper legal aid. They do not have a voice in the administration of prison. And that is something we need to do. The second issue is that every prison in India is under the state system and not under the centre. And though the centre has made out a modern manual, many states continue to have very ancient manuals and work according to that. So, we need to bring into line at least the theoretical framework. so that it is more humane and respects human rights.

Sergey Kapinos: A few additional thoughts: there are no general recipes for reforms. Any reform should be focused on tackling with concrete problems and therefore in different countries reforms are different. However, what is common for any reform is developing something substantial, which will create a new system or will rectify the prevailing system to the extent that it is able to effectively address and cope with the present problems. In this sense, any reform should begin with a needs assessment. In many cases, a needs assessment begins from database management in prisons, which is a challenge. Without effective system of database management, reforms cannot be brought about.

In addition, overcrowding can and should be addressed in a broader sense, because it depends not only on the effectiveness of the prison system but the effectiveness of prosecution, adjudication and even social rehabilitation. So that is why, any prison reform should be an element of broader criminal justice reforms. After all, investigation, prosecution, adjudication, imprisonment and social rehabilitation are the elements of the same system. These are like interlinked vessels, so if only one vessel is revamped or the effectiveness is enhanced, the overall effect will be torpedoed by the other vessels. With regard to pre-trial detention, some element of judicial reform should be brought about in terms of greater emphasis on non-custodial measures or some other restraint measures other than imprisonment. For instance, through early release or electronic monitoring--why not control pre-trial persons with special electronic devices and then use home arrest as an alternative to prison imprisonment?

Vrinda Grover : I think the direct link with the criminal justice system needs emphasis and if you see in the recent past, we have had laws that are actually giving higher and longer sentences. I think the legislature needs to pause and consider. I also think that the public opinion is playing a role, because there is an anxiety amongst the public with crime. So, a lot of that perhaps needs repackaging and linking with the prison resources.

Kanwaljit Deol: We have not educated our public to understand that crime can be dealt with in ways other than just punitive. As a result, what is happening is that we are going on increasing sentences. For instance, we are bringing young people into the adult system and are trying to somehow make it more tough so that the public is more sated. Actually, the public should be asking how come the  system is not reforming? Instead, the push is towards punishing the criminals more and that is the kind of education that has come about. The other thing is, that besides open prisons, there is something called 'no imprisonment' and the alternatives are probation and community service, where the community can judge. If a person has committed a small crime, he does not have to go to prison. 

Q. With regard to women and children, and children especially housed in prisons, what are the issues they face and how can they be addressed?

Kanwaljit Deol: I think we have a number of problems with respect to women. One of them being lack of separate jails for women because mostly, there is a small ward within the prison for women. Second, the population of women prisoners is increasing. Third, the jail manuals have only imagined male prisoners. All these problems like sanitation and women's psychological needs have not been thought of. Then there are kids, children below five years of age lodged inside the jails with their mothers. Sometimes they are born inside the jail and grow up in jail, and there are no separate facilities for that. As far as children in conflict with the law are concerned, that is another major problem, which we have not been able to address at all. Therefore, women and children need especially a lot of attention.

Vrinda Grover: Another aspect is cases and instances where either both the parents are in prison, or one parent is dead and the other parent is in jail. What happens to such children and who takes responsibility for them? The Delhi High Court has set up a system where their entire educational burden is borne by the state, because otherwise, what we are doing is rendering the children destitute and instead of creating a correctional space, we are providing them with no option but to go into the world of crime. So, I think a different approach should be taken, particularly towards children and the institiutionalisation of juveniles. The way these homes are run is exploitative, and essentially a den of vices. 

Sergey Kapinos: I would like to invite to a broader understanding of this problem. This is a reflection of our general attitude towards women. For instance, if we are talking about gender-based violence, this is rampant and whatever happens in prisons is a reflection of the attitude towards women in society. The same can be said about crimes against children, where a similar approach is augmented and amplified in prisons. I feel that with some general changes in society with regard to the perception of gender balance, and promotion of women and children's rights, positive changes can be brought about. 

Q. What is the role of society and how can prisons join hands with communities to ensure the rights of prisoners?

Vrinda Grover: Well, in the jail manual, there is a provision of jail visitors. It is a different matter that those jail visitors are usually handpicked for reasons that do not have anything to do with the interest of prisoners. Today, we do have a very large number of NGOs that are working and some of them are provided access for different reasons, whether it is to provide education, vocational activities or legal aid. I think that provision for a jail visitor has to be taken very seriously and the selection cannot be arbitrary. Today most of us in society think that those in prison are bad people and should be locked away for good. The Indian society needs to have a new conversation around crime and reform. It is a difficult conversation but needs to be done.

Kanwaljit Deol: Such a conversation definitely needs to be done urgently, and the community has to be heavily involved. This jail visitor issue, of course, is in the manual but we have had recent Supreme Court orders about setting up jail committees--that they should take people who are not just official or political but also members of the general public. But the community is very important at the stage of rehabilitation. We are failing to engage the community in this very important aspect. I t is a long-term prospect that begins with education in schools and you see the results over a long period. I think in our democracy, we have lost the a long-term vision, we now have a 4-5 year perception and therefore do not start with things that will bring results later.

Sergey Kapinos: I agree that perceptions should change. First, the perception that harsh prison conditions are a deterrent to crime, is a false notion. Another perception is: why prison conditions should be better than the conditions for some other underprivileged layers, who are not deprived of liberty? This is also a notion. Stereotypes should be changed. A lot of public awareness and understanding of crime prevention and social reintegration of prisoners is very important, as this is about the safety of ordinary citizens and ordinary life.