Prison Reforms-What Is Needed Is A Systematic Study to Understand the Causes of Overcrowding in Prisons: Justice Madan Lokur

Justice Madan Lokur, former Judge of Supreme Court in conversation on prison reforms with Jhuma Sen, an Advocate practising before the Calcutta High Court.

JS: Michel Foucault, writing about the failed project of 'reform' in prison famously observed in his Discipline and Punish that: “One should recall that the movement for reforming the prisons, for controlling their functioning is not a recent phenomenon. It does not even seem to have originated in a recognition of failure. Prison “reform” is virtually contemporary with the prison itself: it constitutes, as it were, its programme.” Prison, as an institution of reform, remains suspended in a perpetual state of reform, because it fails to achieve its objective of reform, he had noted. What, in your opinion, is the reason for it? What do you imagine the project of prison reform must look like? Is it possible to abandon the project of prison reform altogether and move to an abolition of prisons?

JML: I don't believe abolishing prisons is feasible, at least not in the near future. However, prison reforms have been a topic of discussion for many years, starting as early as the 1970s and 1980s with cases like Sunil Batra and others. The Supreme Court has issued various directives over the years, particularly in landmark cases addressing issues such as handcuffing, solitary confinement, and prisoners' rights. But the central question we need to ask is: what can be done to improve the conditions in prisons for those incarcerated?

When we examined the case of inhuman conditions in prisons, we identified four critical areas needing attention, the most pressing being overcrowding. Overcrowding has always been a significant issue in Indian prisons. The first step towards reform should be addressing this by reviewing individual cases dispassionately. By reducing the number of prisoners, implementing other reforms becomes more manageable.

Let me provide an example. I visited an Observation Home for Children in conflict with the law. At the time, there were 258 children housed in a facility meant for 100. I requested the Juvenile Justice Board, the lawyers, and the staff to review each child's case to determine whether they should still be there. After this review, we found that many had already served more than the maximum sentence yet remained under trial—some had been there for five years, despite the maximum punishment being three years. It took about two weeks to complete the review, and the number of children dropped from 258 to 48. This shows that change is possible.

India has around 4.8 lakh people in prisons. If an independent authority or body were to review each case impartially, the prison population could be significantly reduced—perhaps from 4.8 lakh to 3 lakh, then 2 lakh, and eventually even lower. Once the number of prisoners decreases, we can better address the issues they face. For instance, if overcrowding is the reason inmates don't have a place to sleep, the solution isn't to build more prisons. Instead, reducing the number of prisoners will allow for a more humane and manageable environment.

JS: There have been a number of reports, practice directives from the Supreme Court and various High Courts on various aspects of prison reform in the last seven decades. Yet, the more things change, the more they remain the same. The ghost of overcrowding in prisons, coupled with inhuman conditions have continued to plague the prisons of the 1950s, to the 1980s to recongestion post decongestion of prisons during Covid-19 to even now. Why do these issues persist, even after a string of regulatory mechanisms from Board of Visitors (BOV) and Non Official Visitors (NOV)to UTRC have evolved to address the same in Correctional Homes?

JML: There are two key issues here. First, the measures taken during COVID and similar situations, like addressing overcrowding in prisons, have often been ad-hoc and reactive. These actions, lacking in-depth study or planning, are more like knee-jerk responses. While they may provide temporary relief, they do not address the root of the problem. What is needed is a systematic study to understand the causes of overcrowding in prisons.

One significant reason for overcrowding is that many people are not being granted bail, or those who are granted bail cannot meet the conditions set for their release. The question of why bail is being denied, even when it seems justified, can only be answered by the judges. Despite the fact that a person may qualify for bail, they may not be granted bail. Why?

Another issue is the conditions attached to bail, which are sometimes too severe. For instance, asking a daily wage earner to produce a surety of Rs. 1 lakh is unreasonable, and they will never be able to fulfil it. Although the Criminal Procedure Code (CrPC) includes a provision for reviewing bail conditions after a week if the person cannot meet them, this review is often not carried out. This is another point where judges and prison officials need to be questioned about why such reviews are not happening as mandated.

JS: Do you think the reason why this isn't being addressed by judges or prison officials could be due to a lack of awareness? It's possible that many prison officials may not even be aware that there's a provision or procedure for reviewing such cases. So, what's the solution? In fact, the broader issue with prison reform over the years seems to be that it hasn't been for lack of direction or good intentions. From judgments delivered by the Apex Court to numerous committee reports, there have been plenty of directives. Yet, despite all this, meaningful change is still elusive. So, how do we address this? Perhaps systematic training and raising awareness could be a way forward?

JML: Yes, exactly. It's not fair to place all the blame on prison officials; they are just one part of the system. What about the legal aid lawyers? Many of them may also be unaware of these provisions, and if they don't know the law, they have no business being there.

For example, when someone is granted bail, it should be the responsibility of the legal aid authorities and the lawyers to ensure that the individual is released. After all, whether it's a matter of posting bond or fulfilling other requirements, it's handled through a lawyer, whether legal aid or private. If the release isn't happening, the lawyer should be aware of it and take corrective action. That's why I say this is a systemic issue—it's not just one party failing but several interconnected elements that need to be addressed.

JS: The criminal justice system has inherent limitations as well as contradictions. There is a body of scholarship now that has signalled that the retributive core of the criminal justice system does not aid in reformation and that a restorative justice framework is more suited than a criminal justice framework in this respect. 'Crime' is a product of society, and thus can never be eradicated from society, although its definitions may change with the passage of time. Responding to the project of reformation through a carceral institutional structure therefore serves no purpose. What do you think may be some alternate forms of justice that can replace or substitute our criminal justice framework?

JML: There are two key issues to consider: first, the entry of individuals into the prison system, and second, what happens to them once they are inside.

At the entry point, the question is whether we can reduce the number of people being sent to prison. One way to do this is through the court process, such as applying for bail or using the provision for plea bargaining. How often is plea bargaining being used? From my experience, it's barely utilized. We started a pilot project at the Delhi High Court, and while it showed promise, it failed to gain traction due to a lack of institutional support from the High Court.

Take, for instance, minor offenses where individuals are detained for 10-15 days. If you have 100 people detained for 15 days, that adds up to a significant number of people in custody. If plea bargaining were introduced more widely, perhaps none of those 100 individuals would need to be jailed. The mechanism already exists under the Criminal Procedure Code (CrPC) and the new law, but it remains underutilized.

The second issue concerns what is being done for those already inside the prison system to help reintegrate them into society. Simply renaming prisons as "correctional homes" does not make a difference. What meaningful rehabilitation is taking place? Most undertrial prisoners are not hardened criminals—though there are some who have committed serious offenses, like murder. But nothing is being done to separate these serious offenders from others. Nor are there any constructive activities provided for the prisoners. There is a serious lack of effort in terms of rehabilitation and ensuring that individuals come out of prison better prepared to reintegrate into society.

JS: I also believe that the activities being carried out are very ad-hoc and not designed in a way that would truly rehabilitate a person and reintegrate them into society?

JML: Yes, we had initiated a project at the Delhi High Court where, every week, we would hold video conferences with inmates from Tihar jail. The jail authorities would bring in 20 or 25 prisoners, and a legal aid lawyer representing them in the High Court would also be present. During these sessions, the only question inmates consistently asked was, "What has happened with my case?" This revealed a complete lack of communication between the legal aid lawyers and the prisoners. There was no information being relayed to the inmates from either the High Court or the District Court. While one reason might be the failure of jail authorities to pass on information, another issue was that the prison authorities weren't being informed in the first place about updates in the prisoners' cases so they could relay that information.

JS: The legal aid lawyers were at fault in this instance.

JML: Yes, so we initiated a process of informing prisoners through email, and there are individuals connected to the prisoners—family members or friends—who visit them during mulaqaat and could potentially relay case updates. However, they too are often unaware because they don't know where to get the information. This highlights the need to reassess the entire system, as communication is a crucial aspect that is currently lacking.

JS: The two matters that were before your bench in the Supreme Court-; Inhuman Conditions in 1382 prisons and Overcrowding in prisons were indeed historical. Many directions aiming at reforming prisons were passed by your bench that were historic. As reported, the said petitions were taken up suo motu by the court out of “a concern shown by former Chief Justice R.C. Lahoti on four issues, namely, overcrowding in prisons; unnatural deaths of prisoners; gross inadequacy of staff; and the available staff being untrained or inadequately trained.” What prompted you to take up these issues, and set a historical precedent, apart from the fact that these issues were flagged by a former Supreme Court Judge? In the long process of hearing the petitions for five years, what did you witness and experience? Have these experiences changed you as a member of the Judiciary? Now when you look back, is there anything that you feel you could have done differently?

JML: My passion for this issue stems from my association with Justice Leila Seth during her Commission of Inquiry, where one of the key terms of reference was improving conditions in Tihar Jail. Justice Seth and I visited Tihar to observe the conditions firsthand, and that experience left a lasting impression on me. This was around 1995, and I witnessed just how terrible the conditions were. Later, as both a lawyer and a judge of the Delhi High Court, I visited Tihar again and found that the conditions remained poor in many respects.

I also visited an Observation Home for children, where I found the overcrowding was more than double the capacity, and the sanitary conditions were non-existent. I gained firsthand knowledge of the dire conditions these individuals were living in. When I became Chief Justice of the Gauhati High Court, I visited the prisons there and, once again, the conditions were appalling. The same tragic situation greeted me when I visited prisons as Chief Justice of Andhra Pradesh High Court.

So, when I dealt with the prison reform case, I drew on my personal experience of these conditions. Knowing the severity of the problems, I took the opportunity to try to make a difference—addressing issues like overcrowding, improving training, and pushing for better practices.

JS: Sociologists and criminologists studying prisons closely have identified the symbiotic relationship between institutions of imprisonment (such as prisons, detention centres, psychiatric facilities) and the corporate institutions that benefit from them and marked it by the moniker 'prison industrial complex'. Glaring inadequacies and deficiencies of privatisation of prisons have also brought this issue to heated public debate in the USA and UK. While this phenomenon has been widely studied in the North American context, there are similar footprints in India as well. For example, a very celebratory project within the Telangana prison context is the Telangana Petrol Pump Model that aims to provide employment to prisoners in petrol pumps. Is this a model that should be emulated by every state or do you apprehend the Indian prisons will move towards the Prison Industrial Complex eventually with these kinds of practices?

JML: As I mentioned earlier, we need a complete overhaul of the system, starting with a comprehensive study. I am a strong advocate for open prisons, having seen firsthand how they function. However, the models I've observed are not uniform. For instance, the open prison systems in Rajasthan, Himachal Pradesh, and Telangana are all different, but they share the same underlying concept. The challenge lies in how each state chooses to implement its model.

Each state must decide what reforms are feasible and how to implement them. States need to take an active interest because the individuals in these prisons are citizens of the state, and the state has an obligation to care for its citizens, whether they are prisoners, undertrials, convicts, or children. The real question is whether we are keeping people in closed or open prisons to rehabilitate and reintegrate them into society, or simply to punish them. These are critical decisions that each state government must make.

JS: What is your idea of 'reformation'? When it comes to reformational/correctional practices within the prison context, do you find that there is an over reliance on providing economic opportunities as the only mode of achieving 'reformation'?

JML: Yes, it is a challenge, but what's the alternative? A person needs to earn a living to survive. Take women prisoners, for example—they are often ostracized by their families, whether they are married or unmarried. So, if they have no means to support themselves, how will they survive? There's also the social aspect—whether society is willing to accept them.

In the Rajasthan open prison I visited in Sanganer, there's a school for the children of inmates, and it's doing well. The community around the open prison has accepted these individuals—not just in the immediate area but elsewhere too. That's why many of them have found jobs. One inmate, for example, operates an auto-rickshaw. The school is thriving, and local residents are sending their own children to it, which shows the positive integration of the open prison model into the community.

JS: Continuing from the above question, is there a practice both within the public discourse (including the prison administration) and the judiciary more often in connecting crime to poverty? How does this worldview help understanding white collar crimes or for that matter gender based violence, caste violence and so on, which are not necessarily mediated by poverty or economic condition of the offender alone but also by other factors, including but not limited to gender and caste privilege?

JML: As I mentioned earlier, the ability to earn is important, but social acceptance is equally crucial. Take, for example, a wealthy person who commits murder—society may not accept them, but they have the financial resources to live comfortably, even in isolation. They can afford to live in a room, watch TV, and manage their life on their terms. However, a poor person in the same situation faces a much harsher reality. Society may still reject them, but they don't have the means to support themselves. It becomes essential to work towards social acceptance for such individuals because the psychological impact is significant. They may feel forced to leave their town or village and try to start over somewhere else.

JS: Continuing from the above question, does the prison administration or for that matter the judiciary display limited understanding of the origins of crime- that is to say, the social, political and historical context of crime, given that judicial officers, especially those of the higher judiciary are often members of privileged social groups and may not possess the lived experience of the subjects of cases they are hearing? Does this limited understanding impact the project of reformation? For example, are convicts who have been sentenced for sexual violence, gender sensitised while serving their terms?

JML: My philosophy is centred on reforming the criminal. The question is, how do you go about achieving that? The state's philosophy, on the other hand, often focuses on punishment—making the individual "learn a lesson" that lasts for life. If that's the approach, how exactly is it being implemented? Conversely, if the aim is to reform, reintegrate, and rehabilitate, then how are we accomplishing that? Without a comprehensive debate, discussion, and thoughtful planning, we won't arrive at viable solutions.

For example, individuals charged with offenses like rape or caste-based crimes aren't being given the necessary sensitization—there's no gender-based or caste based sensitization programs to address the underlying issues. This creates a significant gap in the reform process. The way forward, in my view, requires greater collaboration and communication. Right now, the prison administration, judiciary, and related bodies are functioning in silos. This lack of coordination is one of the core problems preventing meaningful reform.

JS: When we are constantly pushing for prison reforms, including improving living conditions inside them, are we somewhere taking it for granted that bail is not going to be a rule but continue as an exception? For instance, overcrowding too, for that matter, is always looked at from the perspective of maximum capacity and not in the context of releasing prisoners from custody. Is there rather a need to focus on the jurisprudence of bail more heavily than prioritising jail living conditions? In your candid opinion, do you think the Supreme Court's own established stance on bail jurisprudence (i.e. bail is the rule) is being chipped away by the court itself in recent times? Despite the established bail is rule jurisprudence, why are trial courts rejecting bail applications in a mechanical manner?

JML: At all levels, including the Supreme Court, there seems to be a reluctance to grant bail, and I don't understand why. If there is a valid reason to grant bail to someone who deserves it, it's not an act of charity—it's simply the right thing to do. Unfortunately, this isn't the approach being taken, and that's why the concept of "bail, not jail" is not just eroding—it has been significantly eroded. However, the recent judgment in Manish vs. Union of India gives me a glimmer of hope from the Supreme Court. But that hope needs to trickle down to the High Courts and, ultimately, to the district courts. How quickly that will happen, or if it will happen at all, remains uncertain, but I hope it does.

All of these issues—overcrowding, sanitation, etc.—are interconnected. As I mentioned earlier about the Observation Home, you can talk all you want about improving hygiene, but with inadequate facilities, like not enough toilets, it's not feasible. However, when the population is reduced, as it was in the Observation Home from 258 to 48, then discussions about hygiene and sanitation become realistic. Unfortunately, these issues are not being addressed holistically, which is why we see knee-jerk reactions, like emptying jails by granting remission on Independence Day. These are not real solutions.

JS: There is a common perception that the incarcerated person, mostly who is economically vulnerable will abscond and flee the process of justice if he were to be granted bail. However, there appears to be no such data, connecting poverty with bail jumping. Should the judiciary document data pertaining to bail jump instances, so that there is a clear statistic on how often persons flee from justice? Your thoughts?

JML: Yes, exactly, it's all about perception. But is there any basis for that perception? It's hard to say. Let me share an example from my time in Gauhati. Over a period, 68 people had been granted parole—there were more than 68 in total, but these 68 didn't return after their parole period ended. In some cases, the prison authorities informed the police, saying, "This person was granted parole and hasn't returned, can you trace them?" But in other cases, the prison authorities didn't inform the police at all.

When the issue came up in court, we learned that out of those 68, several—maybe three, four, five, or six—I don't remember the exact number, had already died during the parole period. But both the police and prison authorities were unaware being lax in following up. So, what do you do in a situation like that?

If the perception is that someone who is poor and granted bail may disappear, and you don't even make the effort to find them, of course, they won't be found. This is exactly what happened with those individuals—whether they were poor or not, the authorities didn't make the effort to locate them. So, if no effort is made and that becomes the reasoning to deny bail to others, that's extremely unfair. You can't use inaction as evidence to justify such decisions.

JS: What's also happening as a corollary to this I suppose is that -- investigating officers and agencies are saying, "Fine, we don't strongly oppose granting bail, but let's have some form of a surveillance mechanism." For instance, recently J&K Police introduced a GPS tracker anklet for monitoring of bail-out terror accused. However, this raises further questions about personal liberty, privacy, and other related concerns. Balancing these two aspects—ensuring accountability while respecting individual rights—is not straightforward, at least from my understanding.

JML: Exactly, but the real question is: was it necessary to arrest that person in the first place? If there was no need for the arrest, why do it? Why put someone in jail and then later face the issue of releasing them? Plea bargaining is a classic example. In the United States, hundreds of thousands of cases are resolved through plea bargaining, with many never even go to trial. In fact, they say 95% of cases don't go to trial. If we introduced that system here, there would be no need to put many people in jail in the first place. Without the need for incarceration, there would be no concerns about their release or the need for surveillance. So, the first step we should be asking is: was the arrest even necessary?

JS: A very important order passed by your bench was the introduction of the UnderTrial Review Committee system. It is seen by lawyers, however, that very rarely does the judiciary consider the recommendations made by them and order release. Can there be any system that records each release and rejection, so that that data can be documented and the trends in judiciary be properly analysed? Your thoughts?

JML: Yes, it should definitely be done. Having such documentation would be extremely valuable. This type of research is essential to gaining a comprehensive understanding of the situation, and it will be highly relevant moving forward. Unfortunately, there is hardly any research on prisons and prisoners. Research must be encouraged. Without research, reform and improvements are extremely difficult. Research has been conducted on open prisons and it has shown their value and the need for open prisons. This idea has been put into practise, particularly in Sanganer and encourages rehabilitation and reintegration of prisoners in society.

Views are personal.

The interview has been transcribed by Senjuti Chakrabarti.