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Above: Tihar jail is amongst the largest prisons in the world, but it has poor amenities/Photo: UNI

A PIL before the Supreme Court asks for consecutive rather than concurrent sentences to be awarded to those convicted of multiple offences. Knee-jerk reliance on incarceration as a panacea for crime is counter-productive


By Prof G Mohan Gopal

In the northern and southern walls of the magnificent Diwan-i-Khas, once home to the fabled 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 barrue 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 soul of each accursed inmate of Tihar 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 has thousands of poor, young, illiterate or barely educated men and women belonging to the marginalised social groups, most of whom have not even been found guilty of a crime (over 80 percent are undertrials).

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 by criminal custodians and hardcore inmates. Prisons rob young undertrials of their innocence, groom them into criminality, violence and brutality and admit them into membership in underworld gangs. Tihar, like other prisons, is overcrowded, dingy and filthy. Inmates lack basic amenities including food and medical care. Many 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 16 years after he died due to lack of medical care in Tihar 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 38-year-old woman prisoner Manjula Shetye by Byculla women’s 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 rations of the prisoners. Shetye’s murder led to a riot in the women’s prison.

In Accused ‘X’ vs. State of Maharashtra (judgment dated April 12, 2019), the Supreme Court reiterated the constitutional right, including 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 reaffirms the duty to respect the dignity of all persons. Therefore, our Constitution embodies broad and idealistic concepts of dignity, civilised 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) says: “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 (PIL) has been filed in 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 and 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 14 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 PIL while it is pending in the Supreme Court. The purpose is to question the implicit assumption of the PIL 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 PILs, 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 PIL is concerned 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 US 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 prison in Colorado. Nichols’ sentence is widely considered to be the longest sentence awarded in the US. 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. However, subsequent developments raise serious doubt whether the 161 consecutive life sentences given to him and the execution of fellow accused Timothy McVeigh for his role in the same terrorist attack have had any deterrent effect.

The US has the highest prison population in the world (over 21 lakh and over 60 lakh 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 two lakh in 1974 to the current level of around 21 lakh in 2017 (an increase of over 900 percent, whereas the US population expanded only by 52 percent in the same period from around 210 million to about 320 million). The total incidence of crime in the US was 1.02 crore in 1974. It peaked at 1.49 crore in 1991 (an increase of about 46 percent) and then declined steadily over the last quarter-century to 89 lakh 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: “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-recognised 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 leads 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 PIL, 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 privatise its prisons, creating a US-style “prison-industrial” complex in which investors in
for-profit private prisons become powerful lobbyists for laws that expand criminalisation and extend prison terms.

For all these reasons, the implicit assumption that increasing the duration of sentences will 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 its citizens as retribution for crime? Especially when the vast majority of those punished are from the most marginalised and defenceless sections of society? What is achieved by throwing people into a wretched prison for long periods and throwing away the key?

What is the most democratic alternative way in which to move beyond punishment and move towards restorative goals in response to crime?

How can we move our focus more upstream, to focus on effective social, political and economic measures to prevent crime? Successful examples are available in Northern Europe, such as open prisons in Norway.

Our current response to crime is centred around the police and the courts. They do not have capacity or skills 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 similar and 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 for 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 democratise the criminal courts? Why are we not de-concentrating the enormous centralisation of power in Indian trial judges which enhances risk of error and abuse by moving closer to the common law tradition of separating investigation, prosecution, fact and guilt-finding (role of juries) and upholding the rule of law, justice and rights (role of the judge) functions?

Why don’t we act on various long-standing proposals to ensure genuine accountability of lawyers, the police, the prosecutor and the judge? 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 a par with global standards? Why don’t we establish a professional cadre of public defenders?

British judge Lord Patrick Devlin is said to have referred to the 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 cesspools 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?

Starting in the 18th century, the world began to leave behind what was then considered the optimal response to crime—killing, maiming, torture and other forms of corporal punishment inflicted on the accused. That epochal change happened because it dawned on people that, in the words of Montesquieu: “As freedom advances, the severity of the penal law decreases.” This paradigm shift led to the establishment of modern penitentiaries (places of penance rather than pain), starting in Pennsylvania, as the better way to respond to crime. Two centuries later, it is time to move on again, to even more enlightened, scientific, modern, rational, cost-effective and humane ways of dealing with crime. The future abandonment of prisons is certain. The only question is, will we have the courage to think beyond incarceration today?

It is high time 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 civilisational 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 and on moving beyond incarceration.

—The writer was former Director, National Judicial Academy and former VC, National Law School of India, Bangalore

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