UNHRC’s examination of India’s periodic report after 28 years: Part 6

The sixth article in the series related to the fourth periodic report submitted by India under Article 40 of the International Covenant on Civil and Political Rights (ICCPR) examines how the government of India made a valiant attempt to report insufficiently on the overcrowding of undertrials and the absence of hygiene or medical care in Indian prisons.

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Read Part 1 here.

Read Part 2 here.

Read Part 3 here.

Read Part 4 here.

Read Part 5 here.

THE flagship of the United Nations treaty body system will be examining India's fourth periodic report in all probability on July 15 and 16, 2024. The Human Rights Committee (HRC) is the treaty body tasked to monitor compliance with the International Covenant on Civil and Political Rights (ICCPR).

In Issue no. 21 of the list of questions submitted to the government of India by the UNHRC, they were asked to report on the treatment of persons deprived of their liberty, which is Article 10 of the ICCPR.

"Please report on measures taken to address overcrowding in most prisons, including severe overcrowding in a number of states such as Chhattisgarh, and to improve prison conditions that are reported to be often life-threatening, due in particular to inadequate sanitation and medical care," the UNHRC wrote.

The reply of the government of India, in Paragraphs 111, 112, 113 and 114, is economical with the truth: "India takes the issue of overcrowding in prisons seriously and adopted a multi-pronged approach taking into account the Nelson Mandela Revised Rules of 2015. The Model Prison Manual, adopted in 2016, provides for detailed guidelines on various important aspects of prison administration, viz., medical care, education of prisoners, legal aid, the welfare of prisoners, after-care and rehabilitation, women prisoners and formal inspection of prisons.

"Under the scheme of modernisation of prisons, 119 new jails, 1,572 additional barracks in the existing prisons and 8,568 staff quarters for prison personnel have been constructed.

"Various steps have been taken to improve prison conditions in India. Regular advisories and notifications from ministries and guidelines by the Supreme Court are aimed at improving sanitation and other medical issues in prisons. Training and sensitisation workshops on the prevention and control of HIV/ AIDS are being conducted for prison personnel.

"Similar efforts have also been made to improve the mental health of prisoners. In Re: Illegal Detention of Machal Lalung, the Supreme Court of India has issued general directions to avoid mentally ill persons languishing in psychiatric hospitals for a long time."

The reality about questions of overcrowding and prison conditions

Caste-based segregation

The Model Prison Manual, 2016 was introduced in response to the Supreme Court's directives in In Re: Inhuman Conditions in 1382 Prisons (2017) and the Nelson Mandela Revised Rules of 2015 to address pressing issues in Indian prisons, especially overcrowding and the corresponding strain on conditions in prisons.

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A recent study has highlighted the prevalence of caste-based discrimination in prisons, stemming from archaic provisions of prison manuals in various states; particularly caste-based segregation and division of labour on the basis of caste.

Problem of overcrowding

Overcrowding continues to be a concern, with the average occupancy rate of prisons in India being 'critical' at 131 percent.

There are 11 states that have a higher occupancy rate than the national average, of which four out of 28 states alone (Bihar, Madhya Pradesh, Maharashtra and Uttar Pradesh) constitute 50 percent of the prison population.

Between 2019 and 2022, the prison population has increased by 19.8 percent, while the corresponding increase in the capacity of prisons has only been at the rate of 8 percent.

As acknowledged by the Indian State, prison overcrowding is directly linked to issues in administration rather than to a rise in crime. Excessive use of laws that allow pre-trial detention, such as a prohibition law having disparate impact on persons belonging to the Scheduled Caste and Scheduled Tribe groups, and strict sentencing practices are a contributing factor.

With more than 75 percent of prisoners being undertrials, the persistence of chronic overcrowding has led to an inability to maintain conditions necessary for basic human rights, health and sanitation.

The National Mission for Justice Delivery and Legal Reforms was a commitment to increase judicial infrastructure and reduce delays and arrears in administration.

Despite efforts to increase the number of courts and introduce the e-courts system, the working strength of the judiciary is below the sanctioned strength, approximately at the same rate as before the implementation of the national mission.

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Additionally, as prison overcrowding has been linked to the rise in the number of undertrials, failure in prison administration and the rising use of pre-trial detention law, the impact of the reform in judicial administration through the national mission has been ineffective in countering overcrowding.

Prison infrastructure 

India currently has 1,330 jails, housing 573,220 inmates surpassing capacity by 136,954 inmates.

However, the irregularity and lack of adequate funds to manage the increasing number of prisoners is a problem. The prison modernisation scheme, initiated in 2004, was discontinued in 2009, leaving prisons solely dependent on the state government's funding without the Union government's support, until its reinstatement in the 2021-22 financial year.

The distribution of funds in states prioritises prison administration with only 32.5 percent allocated for prisoners' welfare. Of this, a mere 5.3 percent is spent on food and 1.5 percent on medical facilities, as of 2022.

The 245th report on Prison Conditions, Infrastructure and Reforms found that on average, there is a 20 percent vacancy in jail staff and over 30 percent in correctional staff.

Non-cooperation of states in periodic review of prison infrastructure in line with In Re Inhuman Conditions in 1382 Prisons is also a major barrier in assessing compliance.

Unhealthy prison conditions

Custodial deaths and negligence by prisons

Inadequacy in medical care facilities and negligence by the prison authorities are some of the causes of unnatural custodial deaths.

In In Re: Inhuman Conditions in 1382 Prisons, the Supreme Court of India noted that the experiences of prisons in Delhi, Karnataka and West Bengal reflect that medical facilities in prisons do not meet minimum standards of care, which is a cause for unnatural deaths in prisons.

More recently, the Bombay High Court in Vishnu Sandeepan Kute versus State of Maharashtra, noted the callous and negligent attitude of the jail authorities towards the health of the prisoners, leading to the death of Pradeep Kute soon after he had been incarcerated.

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According to the NCRB's prison statistics for 2018, a majority of the 'natural deaths' in prisons were reported under heart-related ailments (411), lung-related ailments (231), tuberculosis (103), cancer (80), liver-related ailments (72), brain haemorrhage (59), kidney-related ailments (58) and HIV (46), among others.

These deaths, while categorised as natural deaths, could have perhaps been avoided if better healthcare facilities and prompt responses to medical emergencies were available to prisoners.

The healthcare facilities and infrastructure in prisons are lacking as there is a scarcity of doctors and medical staff. Prisons in India are working with half the sanctioned medical staff— this is despite even the sanctioned staff being inadequate due to overcrowding in prisons.

Moreover, medical emergencies in prisons are seldom treated as a priority. Prisoners have to wait for a long time before they can be taken to facilities or hospitals outside the jail for consultations or treatment due to the unavailability of police escorts, as police escorts are often more caught up with taking undertrials to court.

Access to medical facilities is further compromised due to insufficient prison staff to tend to prisoners' visits to medical facilities located outside the prison.

Chronic and continuing health conditions and ailments such as arthritis, asthma, diabetes, hypertension and skin allergies resulting from old age are usually ignored and get very limited medical and logistical attention.

For example, Father Stan Swamy, the 84-year-old prisoner suffering from Parkinson's disease, was granted a sipper and a straw to drink water one month after filing an application asking for the same.

Further, there are also alarming reports of medical staff and doctors favouring the jail staff in cases of custodial torture and bribery by inmates who can afford to pay the staff in order to get beneficial treatment or priority in being taken for medical treatment.

Also read: Some personal reflections on prison medical care

Children up to the age of six are allowed to stay with their mothers inside prisons. At their current capacity, Indian prisons are incapable of sufficiently providing for pregnant women, lactating mothers and growing children. Due to their increased vulnerability, even the special care accorded to these groups is below average.

Negligence during Covid

Despite the Supreme Court taking cognisance of the threat posed by Covid pandemic, prisons were negligent in curbing the contagion within prisons.

The Supreme Court-appointed high-powered committee had recommended several measures to ensure a decline in the population of prisons including granting emergency parole and bail to prisoners.

However, there was a 41 percent decline in the release of convicts and a 19 percent decline in the release of undertrials in 2020.

As a result of gross negligence by prison departments, over 2,000 inmates and over 420 prison officials were infected with Covid in September 2020.

Custodial rapes and pregnancies in prison

As per NCRB data, 275 custodial rapes have been reported from 2017 to 2022. Despite a gradual decrease from 2017 to 2022 each year, the numbers are still alarming, as a single custodial rape indicates that crimes are committed against women by those tasked with their protection.

Recently, it was brought to the attention of the Calcutta High Court that 196 children have been born in prisons across West Bengal. In response, the Supreme Court took suo moto cognisance of the alarming number of pregnancies occurring among women inmates in prisons across the country.

The amicus curiae appointed in the case highlighted the need for a thorough audit of the prisons across the country to assess the availability of medical facilities to women in prisons.

The alarming number of pregnancies in prison also raises a strong possibility that some of these pregnancies could have been a result of custodial rape. 

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Further, the rate of pregnancies also highlights the need to ensure awareness among the prison population about contraception and family planning, in addition to ensuring access to contraception.

Inadequate hygiene and sanitation

Unsurprisingly, the condition of hygiene and sanitation in Indian prisons is extremely poor. Prisoners have reported that the drinking water available to them is often contaminated with dirt, while sometimes it contains chlorine.

It was found that Navi Mumbai's Taloja jail provided 1.5 buckets of water per person per day for drinking, washing and bathing purposes combined.

Studies have highlighted the poor quality of menstrual hygiene management in prisons and the absence of minimum standards for women detainees in prison. There is a lack of access to sanitary products, clean water, proper waste management, or any sensitisation for prisoners and staff.

Another report indicates that even where free sanitary products are accessible to women prisoners, most women are not aware of the same and resort to cloth and rags, leaving them prone to infections.

Mental health in prison

Circumstances such as inadequate healthcare facilities, overcrowding and physical and sexual violence increase the possibility of prisoners to mental health issues. The poor mental health of prisoners is a widespread issue in India, exacerbated by overcrowding and the overrepresentation of socio-economically marginalised persons in the prison population.

As per official statistics for 2022, 9,084 (1.58 percent) prisoners have a mental illness, 63 percent of whom were undertrials and 35.8 percent were convicts.

However, the actual prevalence is likely much higher, given the opaque and flawed methodology of the NCRB's prison statistics.

There were 119 deaths by suicide in Indian prisons in 2022, which constitutes the primary cause (74.8 percent) of unnatural deaths in prison. The suicide rate in prisons is twice the rate of the suicide rate among the civilian population.

The incidence of mental illness in prisoners on death row is even higher, at over 60 percent with over 50 percent experiencing suicidal ideation.

The infrastructure to address the prisoners' mental health crisis is inadequate. Over 30 percent of all prison staff positions are vacant. The medical staff (3,570) constitute less than 4 percent of the total sanctioned prison staff, of which 40 percent are vacant.

Positions for correctional staff (1,468) are even fewer, constituting less than 2 percent of the total sanctioned prison staff, of which 44 percent are vacant. Correctional staff includes psychologists and mental health professionals, besides probation officers and social workers, among others.

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While the Model Prison Manual 2016 lays down a benchmark of one correctional officer for every 200 prisoners and one psychologist or counsellor for every 500 prisoners, in 2022 there were 699 prisoners per correctional officer across India with only two states meeting the 200 prisoners benchmark, while substantial data is not available for psychologists or counsellors.

There are no psychiatrists or psychologists in the prisons of 21 states. Nationally, there is only one psychologist or psychiatrist for every 16,503 prisoners.

Under the Mental Healthcare Act of 2017, the medical officer of the prison has an obligation to send quarterly reports to Mental Health Review Boards (MHRBs) about the status of prisoners with mental illness. MHRBs have been given the power to visit jails and ensure that prisoners with mental illnesses are transferred to mental health establishments. However, only three states (Himachal Pradesh, Tripura and Uttarakhand) have constituted MHRBs.

Independent monitoring of prisons

For transparency and accountability in prison functioning, the significance of an independent oversight body— the Board of Visitors (BOV)— has been emphasised time and again..

The BOVs crucially comprise 'non-official visitors' (NOVs); who are independent members of society interested in prison welfare, including doctors, psychiatrists, social workers and lawyers.

Members of the BOV are empowered to conduct surprise visits to prisons and speak confidentially to prisoners, besides looking into the living conditions inside the prisons. 

While the significance of public scrutiny into prisons through the inclusion of NOVs cannot be discounted, it is important to note that BOVs ultimately have limited powers to ensure follow-up action for the concerns identified, begging the need for a robust mechanism for reporting and timely response.

However, in reality, the functioning of BOVs in prisons across the country has been dismal. According to a 2016 Commonwealth Human Rights Initiative (CHRI) report, only five out of 1,382 jails were monitored as per the law and only four states had constituted BOVs for all their jails.

Inadequate implementation has continued, as documented in CHRI's 2019 report, where 11 states (out of 30) did not have BOVs in any of the jails for which information was received. The report also demonstrates ineffective compliance with the appointment of NOVs and infrequent visits by the board, where constituted. 

Next: Manual Scavenging and Restrictions on the Right to Peaceful Protest