Find a balance between secure and humane jails
Earlier this month, the Union home ministry shared the Model Prisons Act (MPA) 2023 with states to nudge them to replace the Prison Act of 1894, which governs prison administration in India. While the management and administration of prisons fall in the domain of the state governments, the Centre plays a crucial role in shaping an efficient prison system, including modernisation.
The 1894 law prescribed a uniform prison management system and was based on the conclusions of the Report of the Jail Committee of 1889 and the Report of the Prison Conference, 1892. It primarily focused on enforcing discipline with no regard for reforming and rehabilitating offenders. Significant changes in the philosophy and practice of sentencing and prisons occurred in the last 130 years, and a new law was essential.
The primary functions of a modern prison are custody, care and treatment. Crucial to this is ensuring the safety of prisons, usually judged on the benchmarks of security, order and control, and discipline and punishment. MPA’s primary focus appears to be on bolstering this aspect. It has a chapter on using technology in prisons and provisions for improving prison security and intelligence gathering. Criminal activities within the supposedly safe confines of prisons have hit the headlines recently, and stringent measures against these are recommended. Protecting society from organised criminal activities of high-risk prisoners is an important responsibility of prisons and police departments. It is left to the states to develop the finer nuances of handling prison security. Parole and furlough for high-risk and hardened prisoners are barred. The provisions for both are akin to the ones in the Model Prison Manual 2016.
The second area of focus appears to be technology, which, while facilitating communication and information management, also poses additional challenges. Prison systems are grappling with mobile phones and new innovative ways of smuggling drugs. MPA mentions jamming solutions and surprise checks to curb this practice, and has defined wireless communication devices and a provision on punishment for using mobile phones and contraband. Interestingly, Section 29 provides for using electronictracking devices on prisoners while on prison leave. It is a form of digital incarceration, often in the form of a wrist bracelet or ankle shackle that can monitor a subject’s location. It is commonly used as a condition of pretrial release, post-conviction supervision, or parole in at least 30 countries. If put into use, trained officers for the supervision of target offenders will be required. The duties and obligations of offenders on electronic monitoring will have to be specified. Though it does reduce prison overcrowding, there is no evidence that electronic monitoring curbs crime rates or recidivism. An electronic bail system will also have to be considered by the legislature and the judiciary.
While physical and procedural security is important, the crucial importance of dynamic security has been recognised, and this is the third thrust of the draft act. Maintaining a secure prison involves having the right physical security measures, ensuring that effective procedural security measures are in place, and nurturing dynamic security. Good practices to strengthen this include diverting prisoners’ energy into constructive work and activity and developing positive relationships with prisoners. Dynamic security is well-developed in the prison systems of some European countries and though not defined under MPA, it has been mentioned. Turning information into intelligence is possible through dynamic security. But it needs to be supported by developing appropriate policies, procedures and training.
Normally, prison legislation is introduced by a statement of principles, which is useful for the interpretation of subsequent provisions of the legislation. The present model act does not have such a feature. States can consider adding this, and international norms can help states develop them. For example, while framing the Model Prison Manual 2016, we added provisions from the Bangkok Rules 2010 to enable a gender-responsive prison system.
Prison legislation should reflect international minimum standards and best practices. It remains to be seen how states carry out this exercise; those that have recently revised their rules may come up with a good framework. Questions regarding the right balance between secure and humane prisons, privacy issues and big data, will be challenging. Any new law must be visionary, stand the test of time, and be able to meet future challenges, including those of implementation and interpretation. One hopes MPA will achieve this.