Imprisonment

Prof. G. Mohan Gopal

On the northern and southern walls of the magnificent Diwan-i-Khas, once home to the Peacock throne, in the 380-year old Delhi Red Fort, are inscribed the lyrical words of the immortal 13th century Sufi poet Amir Khusro: “Gar firdaus bar-rue zamin ast, hami asto, hamin asto, hamin ast” (“If there be a paradise on earth, it is this, it is this, it is this.)”

Twenty-one kilometres west of the Red Fort stands another great monument of power — the 61-year old Tihar jail, said to be amongst the largest prisons in the world. On the invisible walls of the soul of each Tihar prisoner are inscribed the tragic words, “If there be a hell on earth, it is this, it is this, it is this.”

A 2014 India Today headline captures Tihar succinctly: “A dangerous underworld of lethal weapons, violence, homosexual assault [and] drug addiction”. Filled beyond its brim (over 15,000 inmates live in a facility meant for 10,000), Tihar is overflowing with thousands of poor, young, illiterate or barely educated (mostly) men and women belonging to marginalized social groups, most of who have not even been found guilty of a crime (over 80% are under trial prisoners). Like other prisons in India and in many countries, it is a house of horrors, a dark space of impunity, where unspeakable crimes are committed against inmates by criminal custodians and hard core inmates. Vulnerable inmates are drawn into brutality, violence and criminality and into membership in gangs. It is overcrowded, dingy and filthy. Inmates lack basic amenities including food and medical care Many inmates die in prison, although their deaths are often attributed to suicide. In 2011 the Delhi High Court awarded a “token” compensation to the widow of renowned businessman Rajan Pillai sixteen years after he died due to lack of medical care in Tihar jail while he was an inmate there.

The Supreme Court tried to address the breakdown of the rule of law in prisons by laying down critical legal principles to constrain State power through its Krishna Iyer-led “prison jurisprudence”. This jurisprudence has undoubtedly provided important tools for prisoners to defend their Constitutional rights. However, it has not had a significant corrective impact on the quotidien lawlessness of prisons, as evidenced by the brutal torture, rape and murder of a 38 year old woman prisoner Manjula Shetye by Byculla women prison staff two years ago — for daring to question jail officers on why two eggs and five pieces of pav (bread) were missing from the morning ration of prisoners. Ms. Shetye’s murder led to a riot in the women’s prison.

In Accused ‘X’ vs. State of Maharashtra (judgment dated 12th April, 2019), the Supreme Court reiterated the Constitutional right of prisoners against excessive punishment. The Court said, “Article 20 of the Constitution guarantees individuals the right not to be subjected to excessive criminal penalty. The right flows from the basic tenet of proportionality. By protecting even those convicted of heinous crimes, this right reaffirm the duty to respect the dignity of all persons. Therefore, our Constitution embodies broad and idealistic concepts of dignity, civilized standards, humanity, and decency against which penal measures have to be evaluated.” The treatment of our prisoners violates this Constitutional right.

Their treatment also violates global standards. Article 5 of the Universal Declaration of Human Rights (UDHR) requires that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The English Bill of Rights of 1689 prohibits infliction of cruel and unusual punishments. The 1791 French Revolutionary Penal Code requires that “penalties should be proportional to the crimes for which they were inflicted, and they are intended”. The 1791 Eighth Amendment to the US Constitution prohibits “cruel and unusual punishment.

Against this background, we should be deeply concerned that a public interest petition has been filed before the the Supreme Court asking, in effect, for more prisoners to be sent to our crumbling and dysfunctional prisons, to be subjected to abuse and violence there. Media reports say that the petition asks the Supreme Court for directions that consecutive rather than concurrent, sentences be awarded to those convicted of multiple offences under laws such as the Unlawful Activities (Prevention) Act, 1967, Prevention of Corruption Act, Prevention of Money Laundering Act, Foreign Contributions Regulation Act, Prohibition of Benami Property Transaction Act. While consecutive sentences are permissible under Indian law, Section 31(2)(a) of the Criminal Procedure Code limits the total cumulative sentence to fourteen years (although an apparently erroneous view has been canvassed that this limitation does not apply to sentences imposed by higher courts including Sessions and Additional Sessions courts).

The purpose of this article is not to comment on the public interest petition while it is pending consideration by the Supreme Court. The purpose is to question the implicit assumption of the public interest petition that the best way to respond to the crimes with which it is concerned (corruption, economic offences, terrorism) is to increase the length of sentences and send more people to prison. The article also suggests that, rather than seek ad hoc changes through public interest petitions, there is a need for a comprehensive national debate on key issues and the development of a new legislative vision on criminal justice as a basis to reform and strengthen it.

First, is the most effective way to address the crimes with which the public interest petition is concerned (corruption, economic offences, terrorism) increasing incarceration through mandatory consecutive sentencing?

The approach in the petition is said to be inspired in part by a reported 2016 suggestion of Justice Arijit Pasayat, retired judge of the Supreme Court and Deputy Chairman of the Supreme Court-appointed SIT on black money, that India should follow the United States example of punishing economic offenders for up to 150 years through consecutive sentencing. The learned judge is right in looking to the US as a role model for long prison sentences. Cumulative sentences in the US often extend to multiple centuries. One of the most egregious examples is that of 64-year old Terry Nichols who is serving 161 consecutive life sentences without parole (yes, you read that right) in a US prison in Colorado. Nichols’ sentence is widely considered to be the longest sentence awarded in the United States. He was convicted of several crimes for his part in the 1995 bombing of a US federal office building in Oklahoma which killed 168 and injured over 680 people. However, subsequent developments raise serious doubt whether the 161 consecutive life sentences given to Nichols and the execution of fellow accused Timothy Mcveigh for his role in the same terrorist attack have had any deterrent effect.

The United States has the highest prison population in the world (over 21 lakhs; over 60 lakhs of people in the correction system) and the highest per-capita incarceration rate (655 persons per one lakh population). The US saw an explosion of its prison population from about 2 lakhs in 1974 to the current level of around 21 lakhs in 2017 (increase of over 900%, whereas the US population expanded only by 52% in the same period —from around 210 million to about 320 million). The total incidence of crime in the US was 1.02 crores in 1974. It peaked at 1.49 crores in 1991 (increase of about 46%) and then declined steadily over the last quarter century to 89 lakhs in 2017.

Did putting more people in prison for longer bring down crime in the US? In an article Reducing Prison Admissions and Length of Stay to End Mass Incarceration, Todd Clear argues that, “For a decade, evidence has mounted that the massive penal system was not only costly, but also ineffective (and in important ways, counterproductive). These arguments have been persuasive to people on all points along the political spectrum. They were central to the conservative Right on Crime position paper, where they carried more weight than mere cost arguments.” Clear also says, “For the first time in 35 years, the size of all correctional populations—prisons, jails, and probationers/parolees—is dropping, at about 2 percent annually for the last two years.No doubt the current fiscal crisis is a main driver of this turn-about. States face dire fiscal choices, and big prison populations increasingly look like luxuries that need to be trimmed back. But the fiscal realities have just been the wake-up call”.

There is very little evidence that long incarceration is a stand-alone silver bullet for preventing crime in the US or elsewhere. Some potential offenders may be deterred by the risk of long imprisonment in certain circumstances for some crimes. Others may not. That the length of incarceration will, in and by itself, deter crime cannot, however, be seen as a secular rule that applies equally to all offenders and all crimes. We have seen, for example, the futility of enhanced stringent punishment for rape in response to the Nirbhaya tragedy as a deterrent.

It is well recognized that deterrence is the result of a complex and varied set of factors. For example, it has been reported that “air pollution is a major driver of crime in London” according to new research by the London School of Economics. Research in Mexico shows that reducing economic disparities lead to reduction of crime. It has also been reported in a recent UNDP report that “the increase in single parent households and the lack of capacity of governments—in terms of police forces, judicial system and institutions—to adequately address security challenges, also explains the recent rise in crime and violence in Mexico and in Latin America as a whole.”

The totality of social, economic, political and institutional causative factors for each category of crime needs to be effectively tackled for sustainable reduction in, and prevention of, crime. Targeted expansion of incarceration may well be a necessary part of this broader response. However, knee jerk,“tough on crime” over-reliance on incarceration as a stand-alone panacea for crime is unsustainable and counter productive.

There is another concern. A policy shift to consecutive sentences, demanded by the public interest petition, will increase prison terms in India. In the medium-term, given fiscal constraints, India will have no choice but to follow the US example and privatize its prisons, creating a US-style “prison-industrial” complex in which investors in for-profit private prisons become powerful lobbyists for laws that expand criminalization and extend prison terms.

For all these reasons, the implicit assumption that increasing duration of sentences will, in and by itself, deter crime does not seem to be sound.

We urgently need a national debate on our current approach to crime and punishment. Punishment literally means, to put it simply, causing pain. Can a modern, democratic State deliberately cause pain to — torture and cause suffering to — its citizens as retribution for crime? Especially when the vast majority of those punished are from the most marginalized sections of society? What is achieved by throwing people into a wretched prison for long periods and throwing away the keys?

What is the most democratic alternative way in which to move beyond punishment and move towards restorative goals in response to crime — successful examples of which may be found in East Asia and in Northern Europe?

How can we move our focus more upstream, to focus on effective social, political and economic measures to prevent crime?

Our current response to crime is centred around the police and the courts. They do not have capacity to deal with a crime holistically. How can we respond to a crime using a broader range of institutions, tools and resources to address the needs of the victim as well as the accused?

Today, violence is at the centre of State response to crime. As a country that fought for its freedom on the basis of non violence and compassion, we need to consider how to make the criminal justice system more non violent and compassionate, more reflective of the spirit and ethos of our Republic.

How do we get the criminal justice system to work for the rights of the powerless rather than become for the main part an engine to punish the poor? We have seen, without prejudice to the merits of the case, how a dalit woman complained about crimes committed against her by the chief justice of India, but the high office of the person accused has frozen the wheels of criminal justice.

How do we democratize the criminal courts? Why are we not de-concentrating power from the judge and improving the accountability of police and the independence of the prosecutor along the lines of well established practice in common law countries? Why are we not urgently and strictly improving the professional standards of all members of the court — judges, lawyers, prosecutors and court staff — to bring them on par with global standards? Why are we not making them accountable to litigants? Lord Devlin is said to have referred to he jury system as the flame that shows us that democracy is still alive. Why have we abandoned this central democratic voice in the criminal justice system?

An important structural reason for prisons becoming cess pools of abuse and corruption is the extreme imbalance of power between the inmates and the jail staff. What can be done to redress that power imbalance and improve the functioning of justice institutions?

It is high time that our parliament and state legislatures developed a post colonial, post feudal, modern, democratic, liberal, comprehensive criminal justice policy that reflects the ethos of our democratic, secular, liberal, socialist Republic as well as our civilizational values of non violence and compassion. We cannot any longer lurch from judgment to judgment, picking on a patchwork of ad hoc ideas that are unable to weave into a tapestry of effective criminal justice. We urgently need a national debate and a national consensus on criminal justice reform.