Revisit provisions of Model Prisons Act to plug loopholes

THE Ministry of Home Affairs (MHA) unveiled the ‘comprehensive’ Model Prisons Act, 2023, a couple of months ago and advised state governments and UT administrations to adopt the Act in their jurisdictions, with such modifications as they may consider necessary.

The MHA has recommended that the three pre-Independence prison laws — the Prison Act, 1894, the Prisoners Act, 1900, and the Transfer of Prisoners Act, 1950 — may be repealed as the relevant provisions have been included in the new Act.

The Act has been designed by the Bureau of Police Research and Development (BPR&D) at the instance of the MHA after holding wide-ranging discussions with the stakeholders. However, there is an impression that the basic principles of drafting statutes have been compromised with, and the essentials of modern correctional jurisprudence are not adequately included in the text.

The ‘long title’, which should ideally spell out the general purposes of the Act, suggests that it is ‘an Act to amend the law relating to prisons’; whereas, as per the principles of interpretation of statutes, the Act should have been described as a ‘consolidating statute’, and not an ‘amending statute’, as it amalgamates provisions of the three existing prison laws and consolidates directions of the Supreme Court and other guidelines on the subject.

The main objectives of any statute are set out in the preamble, while acknowledging the sources from where they are adopted. India has been a signatory to several United Nations documents related to prisons and prisoners, including the Tokyo Rules and Nelson Mandela Rules, which have encouraged us to reconsider and remodel our correctional justice system. It was desirable to mention these sources in the preamble. What is more glaring is the fact that the language from the ‘long title’ is cut verbatim and pasted in the preamble, suggesting that due attention was perhaps not paid during professional and legal scrutiny of the draft.

Even a cursory reading shows that there is lack of punctuation in the text of the Act. Besides, there are many grammatical mistakes and language-related errors, which are unacceptable at this level. ‘Definitions’ and ‘title of sections’ need to be properly worded, unambiguously; it may be singularly exhibited by the title of Section 3 of the Act, which reads — ‘Functions of Prisons and Correctional Institutions’.

Brevity is the hallmark of any enactment as it is supposed to be the repository of prescriptions and philosophy on the subject matter; implementation details, processes and procedures are spelled out in the rules and regulations through subordinate legislations. The Model Prisons Act is a unique case, wherein almost everything has been left to be prescribed by the states in the rules; it is bereft of appropriate prescriptions needed to address the challenges confronting the prison administration. In fact, the Act appears to be a tale of missed opportunities on many counts.

Prisons were designed by the British to confine convicts for the purposes of retribution and punishment. To the contrary, Indian jails at present are mainly inhabited by undertrials; more than 80 per cent of the prison population is awaiting trial and they were remanded in custody for different reasons. Many people would not know that the undertrials face similar jail conditions as convicted prisoners. In such a scenario, it was desirable to recognise the need and conceptualise separate facilities for detention of undertrials, more so when the conviction rate in all crimes in India is below 30 per cent.

Constitutionalism prescribes that the socio-economic status of the prisoners should not be a ground for discrimination; the Supreme Court, in Rakesh Kaushik vs BL Vig (1981), has ruled that Article 14 is suffocated if this classification is permitted. On the contrary, the All-India Jail Manual Committee (1957-59) prescribes that as long as different classes and modes of living prevail in society, with a view to avoiding undue hardship and misery, it would be desirable to classify inmates based on their standard of living. Clear guidelines on this aspect were overdue to avoid confusion.

Prisoners live in barracks in a community-like environment, with no privacy and individual space of their own; they sleep on floor and dinner is served before sunset. They remain locked in overcrowded barracks like animals for 18 hours a day; the living conditions are deplorable and often below acceptable standards of human dignity. The SC has expressed concern over inhumane conditions in jails and laid down minimum standards of basic amenities for inmates in Ram Murthy vs State of Karnataka (1997) and TN Mathur vs State of UP (1993). The BPR&D also prescribed the scales of minimum necessary facilities for prisoners and documented them in the Model Prison Manual, 2016. These standards should have been given statutory status in the new Act.

Historically, prisons were designed by men, for men and keeping in view the requirements of men. The Model Prisons Act offered an opportunity to acknowledge the presence of 6 per cent vulnerable prison population, including women, infants, LGBTQ community, old, infirm and mentally ill, for the purpose of taking care of their special needs. Premature release of prisoners, remissions, temporary release on parole and furlough, overcrowding, post-release rehabilitation, work opportunities and wages, open prisons and conjugal visits are some of the other issues that require conceptual clarity and uniform policies at the national level; leaving them solely for the states to frame rules about can lead to inconsistency and inadequate responses as some states may lack the necessary resources and expertise to develop comprehensive and effective policies.

An enactment not only embodies legislative wisdom but also bears testimony to the shared intellectual heritage of the community; it would always remain under scrutiny of professionals and academicians. The Model Prisons Act, in its present form, appears to suffer from policy paralysis and is crippled by inappropriate drafting. A case is made out to revisit its provisions.