Whilst it is well recorded that police systematically use torture as a tool of interrogation in India, the practice of torture and other cruel and inhuman treatment as a form of summary punishment against prisoners is less well known and rarely publicised. Reports received by the South Asia Human Rights Documentation Centre (SAHRDC) indicate that this practice is particularly widespread in Jammu and Kashmir. Whilst the use of “excessive chastisement ordered as punishment for a crime” is prohibited under international law and is widely condemned in most States as constituting “cruel, inhuman, or degrading treatment”, in India it is not only legislatively upheld, but actively used as a first resort of punishment for misconduct in India’s prisons. 

Corporal Punishment in Prison: The Indian position 

The prison system in India is governed by the colonial Prisons Act 1894 and the Prisoners Act 1900. The Supreme Court of India has however expanded the horizons of prisoner’s rights jurisprudence through a series of judgments.  

The Prisons Act 1894 provides for corporal punishment in cases where a prison offence has been committed. As per Section 46 Clause 12 of the Act, the Jail Superintendent may examine a prisoner committing such offence and punish him by whipping him/her not more than 30 times, among other alternatives, as provided in the Act. 

The Act leaves the awarding of such punishment to the discretion of the Jail Superintendent. Acts like “wilful disobedience” of prison regulations, use of threatening or intimidating language, “immoral or indecent” behaviour, and “feigning illness”, among others, constitute a prison offence under the Act. However, the Act does not provide as to how these offences are to be examined and whether “due process” will be followed in such cases. 

Section 38 of the Delhi Jail Manual specifically grants the Jail Superintendent the power to deal with prison offences or other offences under the Indian Penal Code himself/herself, or to move a Magistrate.  

In the case of Danial H. Walcott v. Superintendent, Nagpur Central Prison, the petitioner was punished with solitary confinement by the prison authorities for the commission of a prison offence. The Bombay High Court interpreted Section 46 of the Prisons Act 1894 and observed that the principles of natural justice are to be adhered to by the Superintendent in such cases. The Superintendent must “examine” the prisoner himself/herself and not rely on a readymade statement. The enquiry is quasi judicial in nature and includes the right of the prisoner to be heard, to be fully informed and to cross-examine. The Superintendent must pass a reasoned order after following this quasi-judicial process.  

In the case of Sunil Batra v. Delhi Administration, the petitioner, a convict under a death sentence, challenged his punishment of solitary confinement as provided under Section 30(2) of the Prisons Act 1894. The petitioner contended that Section 56 of the Prisons Act, which confers arbitrary powers on the Superintendent to confine a prisoner in irons, violates Articles 14 and 21 of the Constitution. 

While the apex court upheld Section 30(2) and Section 56 of the Act, the Bench concurred with the observations of Justice V.R. Krishna Iyer, which clearly serve as the touchstone of prison reforms in India. The Bench emphasised the need for “reorientation of the outlook towards prisoners” and prison reforms. It observed, “Jail Manuals are largely a hangover of the past, still retailing anachronistic provisions like whipping and the ban on the use of the Gandhi cap. Barbaric treatment of a prisoner from the point of view of his rehabilitation and acceptance and retention in the mainstream of social life, becomes counterproductive in the long run.” 

In the case of Rama Murthy v. State of Karnataka in 1997, the Supreme Court pointed to the need for a fresh look at the Indian Prisons Act and stressed on the need for an All India Jail Manual to serve as a model for the entire country. 

The All India Committee on Jail Reforms (1980-83), headed by Justice A.N. Mulla, studied the issue of treatment of prisoners and observed that “if prisoners are treated humanely according to set rules and are provided with incentives for showing good conduct and discipline, the need for enforcing prison discipline through prison punishments shall reduce.”  

The Committee also recommended that prison offences be more clearly defined. It further observed, “some of the prison punishments as prescribed by Section 46 of the Prisons Act 1894 were not in conformity with standards of humanitarian treatment of offenders and should be abolished, for example corporal punishment in the form of whipping.”  

The Committee also questioned the nature of hearings conducted by the Jail Superintendent. It recommended that the complaints process be modified to allow the prisoner a proper opportunity to defend himself/herself, and that there be a right to appeal to the Inspector General of Prisons. 

To date, none of these and other useful recommendations have been implemented. 

Following the Jail Reforms Committee report, in 1996 the Indian National Human Rights Commission (NHRC) circulated “An Outline of the Indian Prison Bill -1996” to all states and Union Territories in India, incorporating the core provisions of the Jail Reform Committee’s recommendations. However, its transferral by the NHRC to the Home Ministry for circulation raised the ire of the majority of states as it did not account for the fact that prison regulation is a state subject and thus cannot be dictated by the Central Government. This was an elementary mistake on the part of the NHRC, and served to severely undermine its credibility. 

International standards on the treatment of prisoners 

The International Covenant on Civil and Political Rights (ICCPR) remains the core international treaty on the protection of the rights of prisoners. India ratified the Covenant in 1979 and is bound to incorporate its provisions into domestic law and state practice. The central provisions relating to corporal punishment and the rights are prisoners are found in Articles 7 and 10(2).   

Article 7 provides that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Concurrently, Article 10(2) of the ICCPR provides that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” In its general comment on Article 7, the United Nations Human Rights Committee stipulated that there is no definition of the concepts of Article 7 but that distinctions depend on the nature, purpose and severity of the treatment applied, that “the text of article 7 allows of no limitation”, and that “the prohibition must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime...” This includes “prolonged solitary confinement of the detained or imprisoned person [which] may amount to acts prohibited by article 7”.  

In its concluding observations of state reports and under its communications procedure, the UN Human Rights Committee has found that various acts of corporal punishment inflicted on prisoners and detainees amount to violations under Articles 7 and 10. The majority of these are still routinely practiced in India. These include the whipping or flogging of prisoners; use of solitary confinement for lengthy periods as a disciplinary measure; using methods of restraint such as shackles; and holding prisoners on “death row” for extended periods, inducing mental anguish. 

In the case of Patterson Matthews v. Trinidad and Tobago (1998), the Human Rights Committee requested that the State forward information regarding whether the administering of 20 lashes was sanctioned by law. In India, as mentioned, Section 46 Clause 12 of the Prisons Act allows the Jail Superintendent to punish any prisoner by whipping him/her not more than 30 times, among other alternatives. This is a clear violation of Articles 7 and 10 of the ICCPR.  

The legal obligations imposed on India are supplemented by three sets of UN guidelines on the treatment of prisoners. The United Nations Standard Minimum Rules for the Treatment of Prisoners, expressly provide that: “corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.” The Rules also state that “no prisoner shall be punished unless he has been informed of the offence alleged against him and given a proper opportunity of presenting his defence. The competent authority shall conduct a thorough examination of the case.” 

Principle 6 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment prohibit the use of torture or to cruel, inhuman or degrading treatment or punishment on any person under detention or imprisonment and no circumstances may be invoked as a justification for such treatment. A detained or imprisoned person or his counsel shall have the right to make a request or complaint regarding his treatment, in particular in case of torture or other cruel, inhuman or degrading treatment, to the authorities responsible for the administration of the place of detention and to higher authorities and, when necessary, to appropriate authorities vested with reviewing or remedial powers. 

The Prisons Act 1894 and the respective state jail manuals require immediate amendment so as to ensure that Jail Superintendents follow fair and just procedure while determining punishment for a prison offence. Secondly, the provision for corporal punishment should be done away with to ensure that such law is in conformity with international standards on the treatment of prisoners.

 Human Rights Features