Cricketers, keep away from politics

The Brussels blasts on Tuesday drowned a minor but significant outburst in Mohali by the captain of the visiting cricket team of Pakistan touring India to participate in the T20 World Cup. Skipper Afridi invoked the K word and support to their campaign. To a question from the on-field commentator that Pakistan seemed to have good crowd response, Afridi bowled the googly saying that there were a lot of Kashmiris in the crowd in Mohali and the team got good support in Kolkata as well. The on field commentator was none other than Rameez Raja of Pakistan. That the conversation telecast live was innocuous is difficult to digest. It is no co-incidence that a visiting skipper egged on by a Pakistani on-field commentator availed the free airtime to address millions of spectators and innocently furthered the national policy of Pakistan and the ISI to keep the Kashmir issue on the front burner. If nothing else, a tormented Afridi has certainly earned some brownie points back home among the hardliners, especially India baiters, after his equally controversial comments on arrival that the Pakiatan team got more love and affection in India than it gets at home. The Pakistan cricket team is going through a rough patch is all too well known. The performance of the team in the Asia Cup and the T20 World Cup has attracted nothing but criticism from fans of Pakistan cricket, former cricketers and politicians back home. An inquiry committee has been set up to question players about groupism within the team and underperformance of some players. Afridi himself is facing unprecedented flak on social media for his on and off-field antics. Afridi will step down as captain of the Pakistan cricket team and may even seek retirement from the game. Instead of making an honourable exit as an all-time great, Afridi has disgraced the tournament and sporting ethics by making a political statement knowing full well that Kashmir is the biggest bone of contention in the bilateral relations between India and Pakistan and his comments will be seen as yet another attempt by Pakistan to internationalise the issue. India is the host country. As hosts, the BCCI has done everything to accommodate all teams. A venue was also changed to allay the fears of Pakistan and a host of their questionable demands were acceded to to make the tournament inclusive. Pakistan has also disgraced the tehzeeb of being a good mehmaan by abusing the impeccable hospitality and making a terrible political statement from a sporting arena. The visitors have lost the sympathy and support of millions of cricket fans in India and abroad by the Afridi broadside. Visiting teams are ambassadors of goodwill of their country. The present Pakistan team has, however, betrayed poor diplomacy and caused a setback to the people-to-people contact between the two neighbours and future bilateral series. The captain of the Pakistan team has definitely tarnished the image of cricket — a ‘gentleman’s game’. Since Pakistan has crossed the Lakshmanrekha of sports diplomacy, the BCCI should not soft-pedal the issue and lodge a strong protest with the ICC. In turn, the ICC should also crack the whip lest such utterances become routine and cause embarrassment to other participating nations and allow deviance in sportsmanship. The silence of commentators, diplomats and former cricketers on the issue is eloquent. The TRP hungry electronic media also did not find the comment juicy enough. The Pakistani ex-cricketers who generally suffer from verbal incontinence have suddenly developed amnesia on this issue. Lately, reports have emanated in a section of the media suggesting escalation in Rawalpindi’s non-terror front activities using non-governmental organisations to create unrest in India. The dialogue between Rameez Raja and Afridi at the toss in Mohali is a pointer to the fact that it could well be an orchestrated master act than just a rant by a ruffled skipper. It could not have been better timed with separatist leaders of Kashmir headed for Delhi at the invitation of the Pakistan Ambassador to attend the Pakistan Day celebrations. The sub-text of the narrative needs to be analysed and understood in the right perspective and steps taken to foil such future designs. (This article appeared in the Tribune on 26 March, 2016.) https://www.tribuneindia.com/news/archive/comment/cricketers-keep-away-from-politics-213235/

LESSONS FROM MAHILA POLICE RECRUITS' PROTEST IN GORAKHPUR, UP

The protest by nearly 600 women recruits of UP Police at the PAC, Police Training Centre, Gorakhpur, has raised pertinent questions about the state of training infrastructure in Uttar Pradesh. The young recruits, from diverse backgrounds, including some disadvantaged ones, joined the training with lofty ideals of donning the uniform to take on crime and criminals in the state. Unfortunately, they had such an unpalatable first experience that they had to take the extreme step of collective protest, something unheard of in uniformed services, particularly in a training institution. The concerns of the recruits appear genuine, including cramped accommodation, a lack of sanitation, electricity, water, and hygienic food, as well as the presence of CCTV cameras in the washroom areas. The women recruits were also incensed by a departmental circular mandating pregnancy tests for all recruits, married or otherwise. In response to this crisis, the state government suspended a senior officer involved in the training, and several senior officers were rushed to quell the disquiet and address the concerns of the budding Police officers. Suspension is merely for public optics. It does not address the malaise and lack of preparedness to undertake the enormous task of training so many recruits simultaneously at mostly makeshift training centres. Not long ago, UP had prided itself on recruiting 60,000 young men and women to its Police force, the largest such recruitment on the planet by any country, let alone a state. The recruitment process was completed successfully, utilising technology, human resources, and the state’s infrastructure, without any allegations of unfair practices or corruption charges. The appointment letters to the recruits were distributed with much fanfare by none other than the Union Home Minister in the presence of the UP Chief Minister. The UP Police website claims to have over three lakh personnel. Such a massive recruitment drive, which accounts for nearly twenty per cent of the state’s Police force, also highlights the state’s inability to recruit regularly to contain vacancies within manageable limits without impacting day-to-day policing efficiency and service delivery. It is sad that in our country, recruitment is also used as an electoral tool to garner votes. Vacancies are deliberately allowed to mount before recruitment just before the elections to the state assemblies. Such practices undermine the cadre management, training, and promotion of men and women in uniform. Uttar Pradesh has also recruited a large number of constables in the past. Drawing from their experience, they converted their armed battalions into temporary training centres. All states and central paramilitary forces resort to this practice when faced with unusually large intakes. The commencement of training, however, is preceded by a thorough stocktaking of available infrastructure and logistics. This exercise becomes all the more relevant given that approximately 12,000 women recruits need to be housed and trained in a safe, secure, and enabling environment. It is not confirmed whether an audit of available accommodation, including toilets and bathrooms, kitchens, dining halls, classrooms, outdoor training fields, equipment, dummy weapons, qualified instructors, CCTNS labs, and support staff, was conducted, or what efforts were made to augment the facilities. I recall that when the Himachal Police was required to train a newly sanctioned Mahila India Reserve battalion, the Police headquarters did extensive consultations with several officers and trainers. In fact, a lady IPS officer was handpicked and posted at the chosen battalion headquarters to supervise their training. Women trainers, supervisory staff, and support staff were also identified and posted to the new location. Extra infrastructure was created to suit the requirements of the women trainees before the training began. Not even a single murmur of discontent was heard during their training. The department’s responsibility goes beyond physical training. It is also responsible for equipping Police personnel with the necessary professional and soft skills, resilience, empathy, courage, and wisdom to tackle the modern-day challenges of crime, criminals, and complainants. This comprehensive training is crucial for the effective functioning of the Police force. Good training is like laying a solid foundation for a 30 to 35 years of career in khaki. Police training academies for officers have transformed into centres of excellence in learning in the Police craft. However, the same cannot be said of the training facilities for the junior ranks. Their job profiles and training facilities remain archaic, embedded in the colonial past. There is an urgent need for the rejuvenation of their roles, accompanied by commensurate training inputs and infrastructure. The Gorakhpur protests highlight the state’s inadequacy in creating gender inclusive institutions.  This inadequacy may not be exclusive to Uttar Pradesh. Other states may report similar shortfalls. The decades-old run-down training infrastructure is still primarily suitable for the male incumbents. As the percentage of women in the Police regularly increases to meet the avowed target of 33%, the Police infrastructure must undergo a significant overhaul in the training and work ecosystems, ensuring a sense of security, dignity, inclusiveness, and respect. Aside from punitive measures, the state must urgently take the corrective and more meaningful step of building adequate infrastructure, logistics, and capacity. Even if it means suspending the training of women recruits for a few months, this action is crucial to prevent such incidents in the future. The urgency of these reforms cannot be overstated. The uproar among women recruits, while causing a minor setback to the image of the Uttar Pradesh Police, actually presents a significant opportunity. This is a chance for the force for systematic improvements by identifying and addressing gaps in infrastructure, capacity, supervision, and grievance redressal. It’s also an opportunity to review policies, such as the installation of CCTVs, and address the privacy concerns of women personnel joining the force. This opportunity for systemic improvements should be embraced with optimism and determination. Other states can also learn a great deal from the Gorakhpur incident and upgrade their infrastructure accordingly. The lessons from this incident are invaluable and should not be overlooked.   Over the last few years, the UP Police have earned a good name for themselves. They should build on this culture by taking the frustration and anger of their newest recruits constructively. This positive reputation should serve as a source of pride and motivation for the force to continue its good work. (The article appeared in the Tribune on 28.7.2025) https://www.tribuneindia.com/news/premium/gorakhpurs-women-recruits-expose-a-broken-system/

SECRETLY RECORDED CONVERSATIONS BETWEEN SPOUSES AND THEIR ADMISSIBILITY IN LAW

In a divorce case, the Supreme Court has accepted conversations of a couple secretly recorded by the man to prove cruelty by his wife, raising concerns about domestic surveillance and abuse of privacy law.s

In a landmark judgment in a divorce case (Vibhor Garg vs Neha), the Supreme Court has accepted the admissibility of secretly recorded conversations between a married couple as reliable evidence.

Vibhor Garg had filed a divorce petition under the Hindu Marriage Act, 1955 in a family court at Bathinda in Punjab on the grounds of mental cruelty by his wife, Neha.  The petitioner adduced conversations between him and his wife recorded by him over a period of time without her consent and knowledge to buttress his allegations of mental cruelty. The evidence was admitted by the family court. However, on appeal against its decision, the Punjab & Haryana High Court took an opposing view, holding the secretly recorded calls violative of the fundamental right to privacy as enshrined in Article 21 of the Constitution. Justice Lisa Gill held that the conversations were in clear breach of the privacy rights, and set aside the decision of the family court.

Aggrieved by this decision, the petitioner approached the Supreme Court, which on July 14 ruled in favour of the husband by accepting the recorded conversations, though they were made without the consent and knowledge of the spouse.

Complete lack of trust

The Supreme Court Bench, comprising Justices B.V. Nagarathna and Satish Chandra Sharma, used the recorded conversations to conclude that the marriage in question had reached a point of a broken relationship, where one spouse was actively snooping on the other, denoting a complete lack of trust between them, the very bedrock of a marriage. In essence, the Supreme Court admitted the recorded conversations to decide on the broken marriage rather than as an absolute question of privacy laws.

The court also relied on the exception provided in Section 122 of the Indian Evidence Act, which permits the disclosure of recorded marital communications in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other. The Bench observed: “We do not think there is any breach of privacy in this case. Section 122 of the Evidence Act does not recognise any such right. On the other hand, it carves out an exception to the right to privacy between spouses and therefore cannot be applied horizontally at all.”

The Family Courts Act, 1984 grants a family court discretion to admit evidence, including reports, statements, documents, information, or other matters, that, in its opinion, will assist in effectively handling a dispute, even if that evidence might not meet the admissibility benchmark under the Indian Evidence Act, 1872. This provision allows the family courts to consider a broader range of evidence, including recorded conversations, in deciding matrimonial disputes.

The court recognised that instances of mental suffering were very private and recorded conversations assisted the family court in deciding the matter appropriately. It reaffirmed its commitment to a fair trial, an inalienable right provided by Article 21  of the Constitution.

Important form of evidence

Call recordings have become an important form of evidence in legal proceedings. The Information Technology Act, 2000 and the Bhartiya Sakshya Adhiniyam, 2023 are the primary laws related to electronic records and the admissibility of these records. The admissibility of call recordings in Indian courts has been a matter of debate and controversy for several years.

The K.S. Puttaswamy judgment (2017) established privacy as a fundamental right under Article 21 of the Constitution. However, the Supreme Court, in this case, has interpreted the right to privacy in the specific context of matrimonial discord, the exception provided in the Evidence Act, and the admissibility of relevant evidence in a family court proceeding to decide a case.

The judgment reaffirms the admissibility of secretly recorded conversations, based on the precedent set in R.M. Malkani vs State of Maharashtra. The admissibility of recorded electronic evidence was also examined in S. Pratap Singh vs State of Punjab, in which the Supreme Court accepted an unauthorisedly obtained tape-recorded conversation between two parties. The court evaluated the evidentiary value of the tape-recorded conversation and accepted it as evidence only because it was essential to resolving the case.

Some believe the judgment will promote spousal surveillance and abuse of privacy laws to be used against an unsuspecting partner in future. Research established that women are generally at the receiving end in a family or a live-in relationship. The male counterpart enjoys greater coercive control. Admission of recorded conversations between spouses will create a greater atmosphere of suspicion, a trust deficit, and an abuse of privacy laws.

The admissibility of call recordings in Indian courts depends on several factors, including the authenticity, accuracy, and reliability of the recordings, the relevance and probative value of the recordings to the issue at hand, and the circumstances under which the recordings were made. As technology continues to evolve, the admissibility of electronic evidence, including call recordings, will likely remain a subject of judicial scrutiny and interpretation. The admissibility of electronic evidence, such as recorded telephone or mobile conversations and video clips, often raises concerns regarding the right to privacy. While electronic evidence is accepted in a court of law, it is not generally legal for individuals to record conversations without authorisation due to the violation of the right to privacy under Article 21 of the Constitution. However, in Vibhor Garg vs Neha, the Supreme Court has emphasised that the use of recorded conversations as evidence is admissible only in cases involving matrimonial or family discord. Only time will tell if the courts in India will be liberal in accepting such evidence in other cases also.

(https://www.thehindu.com/opinion/op-ed/secretly-recorded-conversations-may-be-evidence-but-erode-spousal-trust/article69847449.ece)

Nelson Mandela International Day: Alleviating the misery

July 18, which is the birthday of Nelson Mandela, is celebrated as the Nelson Mandela International Day, recognising and rededicating his commitment to human rights, conflict resolution, and reconciliation. This day is special to the prison officials across the globe as the day is also utilised to promote humane conditions during incarceration; to raise awareness about inmates being an inalienable part of society and to value the work of prison staff as a social service of particular importance. 

Nelson Mandela fought apartheid for decades, was sentenced to an astounding 27 years in jail and stood at least four trials. He observed, "It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones." 

The United Nations General Assembly (UNGA) adopted the revised Standard Minimum Rules for the Treatment of Prisoners. These rules are known as the Nelson Mandela Rules in honour of the great South African leader. Over 100 different rules were studied by the UNGA and these were revised in nine thematic areas — prisoners' inherent dignity as human beings; vulnerable groups of prisoners; medical and health services; restrictions, discipline and sanctions; investigations of deaths and torture in custody; access to legal representation; complaints and inspections; and terminology and staff training. Also Read - Water wisdom Like the rest of the world, the Indian prison system is overstretched and inadequately managed, which impacts the prisoners, their families and society as a whole. 

According to the National Crime Record Bureau (NCRB) data, Indian prisons had an average occupancy rate of 118 percent as on December 31, 2020. There are a total of 1,347 prisons — including 606 sub jails, 413 district jails, 145 central jails, 88 open jails, 44 special jails, 29 women jails, 19 borstal schools and three others than the above jails. Against the capacity of a little over four lakh inmates, the prisons host a little under five lakh prisoners — putting pressure on infrastructure, resources and staff. 

As of April 2022, there were 773 districts in India but the number of district jails has been much less at 413. A large state like Uttar Pradesh, which has 75 districts, has only 61 district jails despite the fact that the state accounts for 22 percent of the country's prison population. No wonder the state has the worst occupancy rate at 177 percent, followed by Sikkim and Uttarakhand. These figures point towards a lack of coordinated effort in the direction of addressing the problem where it hurts the most. 

Transportation of inmates to and from courts, hospitals, etc. is an expensive and manpower-intensive activity. There is a need to break away from the traditional 'central, district, and sub-jail' concept and just increase the capacity of the existing prisons to align the prison system with the locations of the courts in the country. It will reduce the logistics cost to the exchequer in the longer run. It will also help in the proper segregation of convicts and undertrials. Convicts can be confined in the central jail only. Each state needs to prepare a five-year plan to create facilities to address overcrowding issues and provide humane conditions in the prisons.  

The reason for excessive overcrowding is the number of undertrial prisoners who account for 76 percent of the total occupancy. Faster trials, liberal bail provisions, and scrupulous adherence to Section 41 (A) of CrPC by all components of the criminal justice system alone will alleviate the situation. No single wing of this system can be blamed for this abject failure. 

There are instances of undertrial prisoners who languish in jails because they cannot pay for the surety or the bail bond. The state and district legal aid authorities can step in to find a solution to this problem as the surety and bond amounts are not very large. Prison administration can also play a positive role in such cases by enrolling such undertrial prisoners in the wage-earning programmes. As per the jail manuals, only the convicts can be made to work and earn wages. But by making an exception on humanitarian grounds for such poor inmates, a number of undertrials will gain their freedom and a sense of empowerment after securing bail with their own hard-earned money. 

There are huge staff vacancies in prisons across the country. Thirty percent fewer supervisory, watch & ward and medical and paramedical personnel are available for day-to-day functioning — straining the life-work balance of the staff and denying them in-service training opportunities. It also adversely affects the morale and motivation of the prison staff. The sanctioned staff strength is nowhere close to the strength mandated by the Model Prison Manual approved by the Home Ministry. 

The issue of parity of pay and allowances of the prison staff with the police department is yet to be put to rest. It is a daily struggle for the prison staff to ask for these basic perquisites. 

This day is supposed to celebrate the prison staff as well. But unfortunately, like other streams of service in the khaki, the number of awards and recognition available to the prison officials is minuscule. There are no awards for best-managed jails in small and large states, like those for the police stations. The union home ministry should consider instituting these awards to keep the mojo of the staff intact. India, like the rest of the world, has moved away from retributive incarceration to a reformation and reintegration agenda for its prisoners. 

India ratified the International Covenant on Civil and Political Rights (ICCPR) in 1979, which remains the core international treaty on the protection of the rights of prisoners. The International Covenant on Economic, Social and Cultural Rights (ICESCR) states that prisoners have a right to the highest attainable standards of physical and mental health. 

A lot has been achieved in the last decade due to judicial activism and the efforts of some motivated prison administrators. Now is the time for a concerted effort by all to overhaul the prison infrastructure and human resources which costs a fraction of expenditure compared to the expenditure on the other components of the criminal justice system. 

http://www.millenniumpost.in/opinion/nelson-mandela-international-day-alleviating-the-misery-486172

On Gurugram Streets on a Rainy Day

हरे कृष्णा हरे जाम

हरे गुरु हरे ग्राम|

Gurgaon now Gurugram boasts of being the Millenium City. What earned this sobriquet could be the offices of several IT companies and grand edifices and Malls which are touted not as shopping places but as a destination and tourist attraction.

While the concentration of IT companies brings in thousands of young minds to the city along with revenue, it is certainly not this alone that should earn Gurugram this sobriquet. Silicon Valley in the US is home to the who's who of the world IT industry. But then Silicon Valley is also known for the 6th highest GDP in the world, and the best air, and water supply anywhere on the planet Earth. The infrastructure there is awesome and always being upgraded.

And here is our Millennium City overwhelmed by one hour's downpour. Thousands of motorists were stranded everywhere. Engines stalled. People abandoned their cars on the roads and trudged home in knee-deep water. NH 8 gets flooded and large pools of water create a huge splash.

And to make matters worse rains are invariably accompanied by power cuts.

Most of us believe that the reason for these ills is faulty planning and engineering. Most of the HUDA sectors have been carved out by acquiring village shamlat land. Each village used to have a big pond that served as a receptor for excess water. With the disappearance of these water bodies and disregard for the natural slope of the area stormwater management has become difficult.

The greedy governments have sold every inch of land even earmarked for parks, schools, and other community facilities in these sectors making us all suffer. The traditional and natural nullahs and streams have also been sold and big projects have come upon them to meet the ever-increasing housing demand.

Unlike Panchkula, Gurugram is not a zero hawker city. If you want to sell fruits, just start doing so on any pavement or footpath in Gurgaon. All that you need to do is to perhaps grease the palms of a few unscrupulous municipality or police officials. It is nobody's business to see how many hawkers, rehris and other vendors have illegally occupied the public footpaths. Whatever trash their businesses generate, goes into the drains which are seldom cleaned. Cleaning of drains may be a major issue in Delhi but not in your Millennium City.

Plastic bags are the bane of city drains. If a small state like Himachal Pradesh can ban the use of plastic bags, why can't the bigger states like Haryana do so? Can the local municipality not enforce such a ban? It would make the city look better. At present, you see plastic trash everywhere.

Thank God the heavens did not decide to open up today! Imagine what would have happened.

It is time the Gurugram officials were slapped on their wrists by their political masters to get their act together and take corrective measures immediately and engineer corrections in the next few months.

SHARBATI WHEAT OF MADHYA PRADESH AND PUNJAB PRCTICES

 Recently I bought a bag of Sharbati wheat at Rs. 44 per Kg. Normal MP wheat sells at around Rs. 40 a kilo. The third in the hierarchy is the Rajasthani wheat selling at Rs 30-32 a kilo. There is great demand for these varieties and I am told the farmers use no or little chemical fertilizers but reap a rich harvest earning handsomely or twice as much as the farmers in Punjab.

Wheat grown in Punjab is sold at Rs. 22-24 and there are few takers other than FCI. The rich farmers in Punjab themselves do not eat their own produce!

I would urge our Punjabi farmers and their so-called unions/associations to follow the Madhya Pradesh model by growing better varieties using no or little chemical fertilizers. It will restore soil health and the health of people. A particular area of Punjab has witnessed an explosion of cancer cases. A switch to healthier farming practices may reverse the cancer trend.

Better quality wheat will surely be in great demand for local consumption and exports. It will be a win-win for all.

Do the Punjabis have it in them to do it?

Women prisoners: The way ahead

 While assessing the condition of Indian prisons in 1835, Lord Macaulay described them as "shocking to humanity". The prisons system has definitely evolved from the medieval and the British times which mainly focused on incarceration and inhuman treatment of inmates. The prison conditions have significantly improved but a public interest litigation titled 'Inhuman Conditions in Prisons', in the Supreme Court puts focus on the not so desirable conditions in the Indian prisons. 

As per the NCRB data compiled up to 2015, there were approximately 4.2 lakh prisoners in some 1400 prisons in the country. Women, at 17,834, constitute just above 4 per cent of the entire prison population. Most of the women inmates are confined to separate enclosures in general prisons. Shockingly, there are only 18 prisons which cater exclusively to the women inmates. Whether the design of these 18 prisons is suitable to the specific needs of women remains debatable. The World Health Organization has observed that "prison system was primarily designed for men and many prisons do not have adequate facilities to protect women rights or to promote their health". This observation has been made in respect of the prisons in the world and is not targeted at India. The fact remains that the percentage of separate prisons for women is low and needs to be improved at the earliest. 

As with men, 2/3rd of women prisoners are also undertrial prisoners waiting to be tried by various courts which are heavily burdened with millions of pending cases. Women prisoners who are lodged in general prisons are perceived to be more vulnerable than their male counterparts, for obvious reasons. According to the NCRB data, 31.3 per cent of women prisoners are in the age group of 18-30 while another 50.5 per cent are 30-50 years old. The very fact that almost 82 per cent of women lodged in the jails fall in the age group of 18-50 years means that their personal hygiene and medical requirements vastly differ from their male counterparts and need to be addressed differently in the prisons. Globally, there is a conscious effort to treat them as a distinct category of inmates by recognising their special needs and creating an infrastructure to suit them specifically. 

The fact that 82 per cent of women in prisons are in the reproductive age also means that most of them have children to look after inside and outside prisons. As of 2015, 1597 women inmates were lodged with 1866 children in the prisons in the country. Separation of children from mothers is traumatic, to say the least. Issues of pregnant inmates, lactating mothers, young children, special diet, specialised medical care, etc., become important management issues in the prison administration if humane treatment is to be meted out to this category of prisoners. 

Of late, emphases has been laid on rehabilitation and reintegration of prisoners rather than incarceration. Open jails have been talked about as a more viable and humane substitute to the standard prisons. Of the 3789 prisoners in open jails in 2015, women accounted for only 109, that too in a handful of states such as Kerala, Maharashtra, Rajasthan, Delhi, Madhya Pradesh, and Himachal Pradesh. Himachal Pradesh, though a small state, has done a pioneering work in creating open jail facilities in the state. Nearly 200 inmates have been placed in the open category and these inmates are supported by the Prisons Department by providing jobs not only in the prison factories but outside the confines of the prisons in partnership with industries, businesses and by innovative initiatives like Shimla Book Café. The department is also in the process of setting up a prison in Baddi which is a major industrial and pharma hub in Himachal Pradesh with a view of providing jobs to inmates. It is truly gratifying for Himachal Pradesh that the Apex Court in its interim orders dated 15/09/2017 observed: "The suggestion given by the learned Amicus of encouraging the establishment of 'open jails' or 'open prisons' is certainly worth considering. It was brought to our notice that the experiment in Shimla (Himachal Pradesh) and the semi-open prison in Delhi are extremely successful and need to be carefully studied. Perhaps there might be equally successful experiments carried out in other States as well and if so they require to be documented, studied and emulated." 

Skill development of women prisoners is also important because their reintegration upon their release is more challenging due to the stigma attached to them. Frequent exhibition of products made by the women inmates, visits by members of civil society to the prisons, awareness about the reforms taking place inside the prisons, all help in their better reintegration with their family and society. Women are being skilled in handlooms, bakery, cutting, stitching, weaving, and grooming services in the prisons in Himachal Pradesh. Himachal prisons have achieved yet another milestone by rehabilitating one woman inmate, who has been employed outside the prison in an educational society. And this step is just a beginning. 

The role of Government is paramount in improving the living conditions inside jails for women inmates. State and the Central Governments have to support the prison establishments to make them reformatories. Several committees have been constituted in the past since Independence which has made recommendations to improve the condition of prisoners, particularly women in the Indian prisons. All India Jail Manual Committee, 1957, Working Group of Prisons, 1972, All India Prison Reforms Committee, 1980-83 (Mulla Committee), All India Group of Prison Administration, Security and Discipline, 1986, National Expert Committee on Women Prisoner, 1987 (Justice Krishna Ayer Committee), and Ministry of Women and Child Development Report on women in prisons, 2018 have made several recommendations for improving the living condition for women prisoners. The Supreme Court has also directed state High Courts to monitor the condition of prisons in the states. It is hoped that with the recent pro-activism of the courts, the government departments will come together and join hands to improve the conditions of women prisoners in India in the coming years. 

Heads of Prisons & Correctional Services in the Country are assembling in Shimla on 4th and 5th October 2018 to discuss the issues pertaining to women prisoners in two days on the theme of "Women in Detention – Access to Justice". The Conference is co-hosted by the Department of Prisons & Correctional Services, Himachal Pradesh and Bureau of Police Research and Development.

http://www.millenniumpost.in/opinion/women-prisoners-the-way-ahead-321278

Prisons Need Reforms

Mallaya's extradition to India is held up as the British judiciary demands to know the status of prison in which Mallaya may be lodged. Doubts have rightly been created in the mind of the court about the living conditions obtainable in our prisons.

Following two daring escapes from Punjab and Bhopal, I had written an article which was carried by Millennium Post. The text is reproduced below along with the link to the article:

Two daring escapes from high-security prisons in a space of less than one month has provided a major jolt to the concerned states and the centre and posed uncomfortable questions about the law & order situation and prisons management.

In an audacious daylight raid, six hardened criminals executed a well-rehearsed plan to free none other than Khalistan Liberation Force Harminder alias Mintoo along with another terrorist and another four dreaded criminals. The raiding party masqueraded as cops with a supposed prisoner in handcuffs to gain entry inside the high-security prison without raising any doubt in the minds of the prison watch & ward staff. Once inside, the attackers snatched a rifle and fired indiscriminately before making good with the escapees in the waiting cars. No resistance was offered and the operation lasted less than a quarter of an hour.

The escape of eight SIMI cadres from the high-security Bhopal prison in the wee hours of 31st October and subsequent encounter resulting in the death of all fugitives within hours at the hands of the anti-terrorist squad (ATS) of Madhya Pradesh has triggered a vociferous debate on the validity of the encounter.

Theoretically, the possibility of escape from jails should be nil. The jail manuals and standing operating procedures (SOPs) are very elaborate in spelling out the security protocols. Whenever inmates are taken out or locked out for the day or night, a headcount is done. Locks of barracks are changed every day. Every barrack is under the watch of at least one sentry or warder who knows and identifies his wards. CCTV cameras are installed in sensitive prisons. The air is, however, rife with innuendos and allegations of laxity and complicity in both the breakouts.

Recovery of mobile phones, drugs and other contraband from jails has been reported at almost regular intervals. Inefficiency, corruption, collusion, patronage to some high profile convicts and undertrials, official apathy and political interference have all been associated with the prisons. Prisons are also accused of becoming nurseries for hardened criminals than reformatories. This article will deal with the basic issues concerning the weaknesses in prison administration and will explore solutions.

The manpower crunch is the bane of the prisons set up in India.

The National Crime Records Bureau’s figures for 2015 place the nationwide vacancy figure at 27000 which is a worrying 34% on which no hue and cry is raised on any platform. Some of the prisons operate with as few as 8 warders!

The Model Prisons Manual, 2016 circulated to all the states for adoption prescribes a ratio of 6:1 in every shift. By the MHA norms, the staff strength should be more than 1500 for the Bhopal prison and 1200 for the Nabha jail. Compared to these, Bhopal has just about 200 persons and jails in Punjab have an average staff of 85. These MHA norms may be very exacting on the state exchequer, but there is a definite need for rationalisation of human resource needed in prisons across the country.

Arranging funds for strengthening of the prison system has always been an issue right from the year 1838 when “Lord Auckland’s Government accepted generally the views of the (first Prisons) Commission, but, having regard to the great expense which they entailed and the many difficulties that beset the introduction of a complete jail system in India, enjoined caution in carrying them out.”

Since the return on investment in enforcement apparatus cannot be quantified, there is a general diffidence in making an adequate allocation for them. The 1998 escape of 78 prisoners from Nizamabad jail, now in Telangana, by virtue of their sheer numbers compared to the available guarding staff, is a grim reminder of the need for adequate staff to perform their custodial responsibilities and quell riots which break out inside the prisons.

The law & order machinery in the states had immensely benefited by the central government funded India Reserve Battalions which infused much-needed manpower into the beleaguered state police forces. Funds for infrastructure, equipment and salary for the initial five years were provided by the centre. A similar central scheme to augment manpower in the jails is the need of the hour as the fiscal health of most of the states may not allow them to create more jobs.

The prisons are beset with the problem of overcrowding. The national overcrowding percentage stands at just fifteen percent. The Bhopal prison houses 3000 prisoners against a capacity of just 1400. The Nabha jail is slightly better with the occupancy rate of 118%. Besides issues of hygiene, human rights, medical care, security, alacrity and watch & ward functions also become complicated given the inadequate manpower. Capacity expansion in jails and provision of the matching staff are immediate requirements.

The availability of modern gadgetry for watch and ward functions, access control, surveillance, perimeter security, point to point communication, force multipliers and arming policy vary from state to state showing disparate allocation of resources to achieve a basic uniform minimum standard. The modernisation plan for the prisons had been discontinued by the UPA-II which has also affected the process of upscaling of infrastructure and equipment in the prisons.

In reply to an unstarred question in Lok Sakha in August 2015, the minister of state for home stated that “a consolidated Memorandum was submitted by the Ministry of Home Affairs to the Fourteenth Finance Commission for consideration which included the demands projected by the States/UTs amounting to Rs. 13,962.60 crore for prison reforms in the second phase of modernization of prisons. The 14th Finance Commission has observed that in view of the improved outlay for States now, there is appropriate fiscal space to provide for additional expenditure needed for their requirements. The 14th  Finance Commission has not made any specific fund allocation in favour of Central Government for this purpose. Therefore, with appropriate prioritisation, the States/UTs should be able to meet the proposed expenditure on the modernisation of jails.”

The refusal of the 14th Finance Commission to allocate any funds for the scheme has dealt a severe blow to the modernization of prisons in India.

The Apex Court has directed the centre and states to install CCTV cameras in all prisons. Like CCTNS for the police, e-prison software to automate processes is also at different stages of implementation. Both these projects are possible only with assured financial support either from the centre or the states or in combination with the centre picking up the bigger tab. The modernization plan has been revived for the police and central armed forces. The same needs to be done for the prison administration which is an equally important part of the criminal justice system.

Basic and in-service training in the prisons departments is also a major casualty. Some of the states do not even have a single training institution of their own. Ministry of Home Affairs should prepare a scheme for setting up of training institutes in all the states and BPR&D should design basic and in-service courses for all levels of prison personnel. Most of the ground level staff has not undergone any in-service training in the prisons across the country.

Intelligence and internal vigilance are alien features in jail administration. There is no intelligence staff sanctioned for coordination between the prisons and other agencies like the police, Narcotics Control Bureau and intelligence agencies. Internal vigilance works as a great deterrent to most of the ills associated with enforcement functions in the jails. Intelligence and internal vigilance cells should be created at the state prisons headquarters, central jails and all district jails.

Most of the prison reforms that are taking place are due to a proactive judiciary. Independent India has seen several committees on different aspects of prisons reforms recommending overhauling of the prison administration and replacement of obsolete and archaic prison laws and manuals with modern laws in synch with the times. In 1999, a draft Model Prisons Management Bill (The Prison Administration and Treatment of Prisoners Bill- 1998) was circulated to replace the Prison Act 1894 by the government of India to the states but this bill is yet to be enacted.

Reform and rehabilitation are the buzzwords in the correctional discourse. Improvement in correctional administration can be expected only when a sound legal base is provided by amending or replacing the Prisons Manual and the Prisons Act.

India has seen some sensational jailbreaks in the past. Daring escape of 43 LTTE cadres from Vellore Fort in August 1995 and escape of three inmates accused of the assassination of a chief minister from the model central jail Burail in Chandigarh along with the daring gunbattle escapes of Maoists from Jehanabad jail are still fresh in the mind. In 2015, eighty-nine inmates escaped from the prisons while another 111 ran away from police custody outside the prison complexes. The escape of most of these inmates did not make headlines. National attention is attracted only when high profile and notorious prisoners escape from the jails. And it is for such prisoners that the jail administration has to plan and provide for.

The prison establishment may be expensive to maintain but is essential for any society. There is a need to accord priority and address issues affecting the efficiency of the prisons and reform and rehabilitation programmes. MHA may consider detailing an officer exclusively for the prisons related issues and to coordinate with the states and other stakeholders. Ministry of home affairs should order a security audit of all prisons on fixed parameters and after gap analysis, corrective measures should be taken in a time-bound manner. Unless the reforms agenda is pursued vigorously by committing funds and enhancing manpower, incidents like Bhopal and Nabha will keep occurring and the basic issues of custody, care and rehabilitation will be ignored by TRP hungry media.

http://www.millenniumpost.in/what-ails-our-prisons-175730 

RELEVANCE OF STATE SENTENCE REVIEW BOARDS

State Sentence Review Board and some pertinent issues

By Somesh Goyal -

 Feb 20, 2017

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“Hate the sin and not the sinner”.

— Mahatma Gandhi

The Indian Penal Code, 1860 prescribes punishments for different crimes committed by individuals. The Criminal Procedure Code, 1973 not only lays down the procedure but also defines the humane side of the law holding out possibilities of remission, suspension or commutation of sentence of the deserving prisoners with or without their consent.  While Sections 432 and 433 are enabling provisions, Section 433A was added to the Code of Criminal Procedure 1973 later imposing certain restrictions on the powers of remission or commutation by the appropriate government in certain circumstances and cases.

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These sections read as follows:

Section 432:- Power to suspend or remit sentences.

(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without Conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted is, In the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

(5) The appropriate Government may, by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with:

Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and-

(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or

(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.

(6) The provisions of the above sub- sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.

(7) In this section and in section 433, the expression” appropriate Government” means,-

(a) in cases where the sentence is for an offence against, or the order referred to in sub- section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

Section 433:- Power to commute sentence. The appropriate Government may, without the consent of the person sentenced, commute-

(a) a sentence of death, for any other punishment provided by the Indian Penal Code;

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine.

Restriction on powers of remission or Commutation in certain cases.

Section 433A:- Restriction on powers of remission or Commutation in certain cases. Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

STATE SENTENCE REVIEW BOARD

Prior to 2001, the provincial governments in India followed different procedures particularly for suspensions and remission of sentences. The disparities and differing standards applied by the various states in deciding the premature release of prisoners serving custodial sentence, were examined by the National Human Rights Commission (NHRC). The Commission appointed a committee to evolve greater uniformity of standards in dealing with this matter.  The Committee in turn, drafted guidelines and suggested constitution of Sentence Review Boards to deal with the cases of premature release. Suggestions from all the states and union territories were invited on the guidelines by NHRC by 30th September, 1999.  On 20th October, 1999, the National Human Rights Commission issued amended guidelines for implementation by the states and union territories. The state governments were expected to amend inconsistent government orders and locally drafted rules with an aim to achieve uniformity in this regard throughout the country.

In nutshell, these guidelines led to the birth of the idea of State Sentence Review Board.

The State Sentence Review Boards have served the purpose admirably keeping in view the general principles of amnesty, remission of the sentence, welfare of the prisoners and society at large.

The National Human Rights Commission observed that the need for the State Sentence Review Board and a uniform procedure for premature release was necessitated by the complaints received from and on behalf of convicts undergoing life imprisonment without any sympathetic consideration for premature release or remission even after serving long sentences ranging from 10 to 20 years.

The eligibility criteria and the procedure prescribed for the State Sentence Review Board, therefore, considers only the cases of those convicts who have been sentenced to life imprisonment. In the light of these guidelines the scope of suspension and remission under section 432 of Code of Criminal Procedure 1973 has been limited only to these cases whereas the Criminal Procedure Code provides suspension and remission to any person who “has been sentenced to punishment for an offence” without laying down any length of punishment as eligibility criteria for consideration for premature release. It may be interesting to find data of post 2001 of all the convicts who have enjoyed premature release. None of them may belong to the category incarcerated for less than life imprisonment.

The National Human Rights Commission guidelines and procedure prescribed in para 6.3, 6.4 and 6.5 are perhaps in variance with what is prescribed by section 432(2).  It is prescribed in section 432 (2) that the appropriate Government or the competent authority to grant premature release, “may require the Presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists”. In the NHRC guidelines, there is no reference to this statutory provision of the Code of Criminal Procedure 1973.

The Apex Court in a few recent judgments has reinforced the mandatory observance of the procedure provided in section 432 (2) of Criminal Procedure Code 1973.  In the case of Sangeet and others Vs. State of Haryana, (2013) 2 SCC 452, in para 77.7, the Supreme Court has observed:-

“Before actually exercising the power of remission under Section 432 Cr.P.C. the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming Court. Remission can, therefore, be given only a case-by-case basis and not in a wholesale manner.”

In another case pending before the Supreme Court of India, in an interim order, the Apex Court has observed in the case of Union of India Vs. V. Sriharan @ Murugan and Others, (2016) 7 SCC 1, in para 52.6 of the judgment that:-

“No Suo Motu power of remission is exercisable under Section 432 (1) of Code of Criminal Procedure. It can only be initiated based on an application of the person convicted as provided under section 432 (2) and that ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the Court concerned.”

From the foregoing it becomes absolutely clear that in the eyes of the Apex Court, the most material opinion is that of the Presiding Judge of the convicting or the confirming court that is why the Court in its judgment has replaced the word “may” as in Section 432 (2) of Criminal Procedure Code with “must” and “should”. Secondly, in none of the judgment of the Apex Court, the Court has made any mention about the procedure prescribed by the National Human Rights Commission.  Hence, it is a matter of legal debate whether the directions of the Apex Court as given in the judgment of the above two cases have to be followed or the NHRC guidelines which do not facilitate observance of the procedure prescribed in the Cr.P.C.

It has been experienced that the State Sentence Review Boards decide cases of premature release in a wholesale manner in one sitting. The applications received from the convicts seeking premature release are allowed to pile up till the State Sentence Review Board meets.  The National Human Rights Commission guideline for a quarterly meeting is followed more in breach. There are instances when the State Sentence Review Board meetings have not taken place for more than a year.  Section 432 of Cr PC very clearly states that the appropriate government is to take a decision “whenever an application is made”. In Sangeet and others Vs. State of Haryana, (2013) 2 SCC 452, in para 77.7, the Apex Court has  pronounced the following,

“Remission can, therefore, be given only on a case-by-case basis, not in a wholesale manner.”

In view of this judgment of 2013, does it not become incumbent on “the appropriate government” to process the cases as and when these are received? Do the State Sentence Review Boards remain relevant after the Apex Court’s pronouncement in the case of Sangeet & others vs. State of Haryana (2013)?

The question of premature release among other issue is under the consideration of the Supreme Court of India in Writ Petition Sr. No. 48 of 2014 of Union of India Vs. V. Sriharan @ Murugan and Others. In its order dated 09.07.2014 the Apex Court had restrained the state governments from exercising their powers of remission and commutation of sentence under Section 432 and 433 of Code of Criminal Procedure 1973 to life convicts.  The Supreme Court reviewed its order on 23.07.2015 and restricted the 09.07.2014 order only in the four following conditions or cases:-

(i) Where life sentence has been awarded specifying that-

(a) the convict shall undergo life sentence till the end of his life without remission or commutation;

(b) the convict shall not be released by granting remission or commutation till he completes a fixed term such as 20 years or 25 years or like.

(ii) Where no application for remission or commutation was preferred or considered suo motu by the concerned State Government/authorities.

(iii) Where the investigation was conducted by any Central Investigation Agency like the Central Bureau of Investigation.

(iv) Where the life sentence is under any central law or under Section 376 of the Indian Penal Code, 1860 or any other similar offence.

The order of the Apex Court in para 4 (iv) continues to restrain the state governments from exercising the powers of remission and commutation, “where the life sentence is under any central law or under section 376 of Indian Penal Code, 1860 or any other similar offence”.  Life sentence is provided to the best of knowledge of the writer, only under the Central laws barring the State of Jammu and Kashmir which has its own Penal Code. By insertion of this Sub Para to Para-4, the States continue to be restrained from the exercising the powers enjoyed by them under Section 432 and 433.

WHAT ABOUT THE VICTIM

The rights of the victim generally comprise the following four ingredients.

a) Access to justice & fair treatment,

b) Restitution,

c) Compensation &

d) Assistance.

More and more judicial pronouncements and legal pro-activism are expanding the scope of the rights of the victim in India.

The provisions in the Criminal Procedure Code, particularly in Section 432 (2), were made with a view to considering the gravity of offence damage or loss caused to the victim herself and to the family, legal heir(s) and the society at large.  It is perhaps keeping in mind the interest of the victim, that the lawmakers provided for the opinion of the convicting or confirming judge before deciding on premature release by the appropriate Government.  Naturally, it is the convicting or the convicting judge only who has tried the case and inflicted life sentence after weighing all pros and cons and the gravity of the offence and its impact on the society at large.  The impression formed by the convicting or confirming judge and supported by the material and circumstantial evidence should rightly be the guiding light for the appropriate government and not the opinions of some armchair bureaucrats, correctional authorities and others.  The State Sentence Review Board guidelines issued by the NHRC are completely silent on the aspect of the representation of the interest of the victims. Should victim’s voice be heard in the process leading to suspension or remission of the sentence?

In the light of the above, the writer wants to raise the issue of relevance of the State Sentence Review Board in its present form.  The State Sentence Review Board guidelines need to be revisited in view of the emerging case law and concern for the rights of the victims.

http://tilakmarg.com/opinion/state-sentence-review-board-and-some-pertinent-issues/