CHAPTER-II

PRISON SYSTEM IN INDIA : RETROSPECT AND

PROSPECT

I. Introduction

The Indian legal system can retrospectively be divided into

the ancient period, medieval period and modem period. Initially,
the whole legal system was dominated by the religious principles
mostly derived from the verses of the Vedas in the contemporary
social conditions. In this chapter an attempt h a s been made to find
out how and from where reformation of prisoners came to be
recognized as independent subject calling for attention of
criminologists and sociologists asserting that the offenders to be
resorted back to society as socialised human being and are able to
contribute to the common good. To throw more light on the
development of the concept of prison system retrospectively and
prospectively which may resocialize a prisoner into a productive
law abiding citizen. The chapter has been further divided into three
parts.

II. Prison System in Ancient Period

In ancient India the penal system h a s deep roots. Various

jurists gave their own theories of punishment. It is known as
'danda-niti'-which literally means principle of punishments. ^ Manu,

1 Dhavan, S. S., The Lucknow Law Journal, Vol. XIII and XIV (Seminar
Special) (1967-68) pp. 9-30
 23

the great law giver of India, emphasized that 'Danda'was created

as derivative of Dharma.'^ R.C. Nigam h a s the view that, while
criminal science or criminology is modem growth in the west, it
would be interesting that it was a fully developed subject of study
in India even before the dawn of the Christian era.^ It simply
indicates that criminology of Dhanda-niti is not new science, but
the Indian law governing agencies were very familiar to the concept
of Danda-niti. It is as old as the Smrities. A lot of ancient Indian
literature contained about Danda-niti i.e. Vedas, Smritishastras,
Dharamsastras, Kautilya's Arthsashtra. According to the work
done by Bana, there are indirect references to crimes and rigorous
imprisonment. Manu said that after considering the inclination in
the offender, his antecedents and capacity punishment should be
given. According to Brihaspati, a gentle admonition should be given
to a man for light offence. Kautilya advised the king to award
punishment which should neither be mild nor severe. In
"Brahmbaibratra Puran, Lord Mahadeva'^ told Brahma^ that if
people commit offence, it is duty of pious man to forgive him.^

During Mauraya ruler, particularly in the reign of Ashoka

(269-232 B. C.) a new official known as 'Dharam-Mahamantri' was
appointed who was to look after among other matters of the
prisoners in jail.

In fact the Hindu jurisprudence was looked upon offences

from the moral and religious angles. Not merely did the king

2 Manu Smriti, VII-3, 4, 15, 18, 22.

3 Nigam, R.C, Teaching and Research in Criminal Law and Criminology, The
Lucknow Law Journal, 1967-68, pp 49-50
4 Lord Mahadeva is God known for destruction of evil among the Hindus.
5 Brahma is God known for creation among the Hindus.
6 Mazumdar, R. C , Chowdhary, H.C. Roy and Dutta, Kali Kinkar, An
Advanced History of India, 1967, p-97.
 24

consider it his duty to punish the offender without leaving him to

be avenged by aggrieved person either privately or through court
by punishment or compensation, but also took cognizance of the
'Apradh' (crime) without any petitions or information by the
aggrieved. The King as keeper of peace was not satisfied in merely
augmenting the royal coffers, thus permitting the rich subjects to
commit breach of peace and pay the penalty. It was not even
necessary that the delinquency should result in h a r m or injury to
somebody else. The fact that drinking of wine by a Brahamand' is
considered as serious a sin as the incest with one's nearest
relatives is an illustration of this point. Compounding of certain
offences without permission of the court is punishable.^

The accused persons were punished mostly with fine only,

who were having capacity to pay it off. But in the case of poor
criminals, who had not enough money to pay the fine the Manu
observed that:-

"Persons belonging to Kshatriya,^ Vaishya,^^ Sudra}^

castes, who were unable to pay the penalty money could
be freed or their debts by labour. A Brahamana should
be asked to pay in easy installments."

It is pertinent to observe that the above expressions i.e.

labour; indicates forced labour. It was the discretionary power of

7 Brahaman were the persons of community who look after into religious
matters and run the educational programmes.
8 Supakar Shruddhakar, Law of Procedure and Justice in Ancient India, 1986,
p. 296.
9 Kshatriya- Who involved in political 85 defense matters.
10 Vaishya- Who involved in business.
11 Sudras- Who involved in labour works.
 25

t±ie king to engage such persons in work either inside or outside

the prison.

From the above observations it is evident that criminal

justice system was having multifarious situations with a view to
provide proper punishment to the wrongdoer. Moreover, as per
evidences the punishment was further subject to certain factors
like; if the Brahmana commits crime, obviously punishment was in
the nature of fine. But contrary to this vice-versa the situation was
not same. It depicts from evidences that when the Kshatriya,
Vaishya or Sudra, as the case might be was sentenced to fine, was
neither able to pay it nor work in lien thereof (on account of
disease, old age or any other sufficient reason) was sent to the
prison. About Prisons, Manus observed:-

T e t him (the King) place all prisons near a high road

where the suffering and disfigured offenders can be
seen."i2

Thus from the above observation it is clear that the prisons

were meant mere for public dishonor of the persons imprisoned
and that the prisoners were exposed to public view, unlike as at
present. The basic purpose for such kind of incarceration is to fit
an example to the general public, so that no other may dare to
commit similar kind of crime in the kingdom. The prisoners were
probably required to do some labour. It was an age when slaves
were forced to work without any wages. Persons who could not pay
fine could be made to work, without wages even without the
necessity of putting them in prisons. Kautilya speaks of such

12 Supakar Shruddhakar, Law of Procedure and Justice in Ancient India,

(1986), p. 298
 26

forced labour and provided that women committing offences

should be made to work half as much as a man does.i^

It is evident from the fact that during this period there was
no development of science of penology. The revenge seemed to be
causation of crime. King being the fountain of justice was capable
of taking any kind of decision. Moreover, it is further evident that
caste played an important role while awarding punishment to the
guilty. It simply means, the main purpose to provide prison was to
give an opportunity to offender/wrongdoer by the state authorities,
such circumstance where reformation of prisoner can be done.

Reformation of prisoner is the basic aim of prison. Presently

the Laws and Governments provide various kind of prisons,
keeping in view, the nature of offence.

Kautilya prescribes that a jail should be constructed in the

capital, provides with separate accommodation for men and
women. They have to kept apart from each other. The jails were
well guarded at the entrances. He further states that among the
duties of the 'nagaraka! is to let out of the jail on the day of the
festival of the birth constellation of the king and on the full moon
day of every month. Such persons as are young, very old, suffering
from diseases and helpless or those who are charitably disposed
may pay the fines or others bind themselves by an agreement to
pay in cash the fines for the offences for which the prisoners are
jailed and then the prisoners may be released. The persons jailed
may be set free on their working every day or once in five days or
by undergoing corporal punishment and paying fines in cash.

13 Supakar Shruddhakar, Law of Procedure and Justice in Ancient India,

(1986), pp 298.
 27

Prisoners may be released from jails (as a favour) on the conquest

of fresh territory or on the coronation of the Crown Prince or on the
birth of a son to the King. In the Delhi Topra Pillar Edict No. IVi4
emperor Ashoka promulgates that he gives three days respite to
prisoners on whom judgement h a s been passed and who have
been condemned to death and in the 5 * Pillar Edict of Delhi
Topra^s he says that he let off prisoners 25 times in 26 years
(which is in conformity with Kautilya's dictum cited above). In the
first separate Edicts at Dhauli Ashoka address his officers of
justice in the capital (Nogaravyavaharikah) that they should so act
that even a single person should not unnecessarily suffer
imprisonment or pain. In spite of this if we are to believe Yuan
Chwang, Ashoka in his early career was most cruel and had
constructed a jail that was called Hell- prison oi Ashoka^^.

The Silappadikaram, one of the earliest works in Tamil,

mentions the release of prisoners on the king's birthday and at the
founding of a temple.i'^ Kalidas in the Malavikagnimitra (Act IV)
makes the Vidusaka report to the king, the astrologers think that
as the constellation on which our majesty was born is in evil
aspect now, let all prisoners be released. Kalidas,^^ alludes to the
release of prisoners and the commutation of death sentences at the
time of the coronation of King Atithi. The Brhat-Samhita (47.81)
states that when the king takes the 'pusyasnana',^^ he may order
release except as to those prisoners who were convicted for

14 Corpus I. I. Vol. I, p. 123 and E. I. Vol. II, pp. 253-54

15 Corpus I I. Vol. I, p. 126-128 and E. I. Vol II, pp. 258-59
16 Watters Vol. II, pp. 88-90, also see Kane, P.V., History of Dharamshastra,
Vol. Ill, p. 406
17 Id., pp 38-39
18 Raghu 17.19
19 Ceremonial bath on the day on which the moon is in conjunction with the
Pusya constellation in the month of Pansa or every month
 28

offences connected with his own person or with the harem. In the
Mrcchakatika (Act X) also various occasions for the release of
prisoners are mentioned by the executioner. The Harsacarita refers
to the usage of releasing prisoners at the time of a coronation and
on the birth of Harsa IV. The prisoners are described in the letter
passage as having long beards and as darkened by the
accumulation of dirt on their bodies.

In present time the government is provided a lot of budget so

as to establish to maintain and to run the prisons. But in ancient
India, there were no elaborated provisions for prisons given in the
legal literature. Even Kautilya's Arthasastra, which deals with the
superintendence of treasury, the stables, the octroi, the prostitutes
and others, does not deal with the superintendence of prisons. Of
course, Kautilya speaks of putting the princes in prisons for
political reasons. Traitors or political prisoners are mentioned in
'Puranas' and history. The 'Kansa' in Bhagavata imprisoned his
sister and her husband. In Mahabharata too we find that
Duryodhana, imprisoned the entire family members of his maternal
uncle. In Mudraraksha there is also the incidents of imprisonment
for political reasons. There are also the stories of imprisonment in
the 'Panchtantra'.

III. Prison System in Medieval India

In the Medieval period India was governed by the Mughlas

and Muslim law which was prevalent in India at that time. They
have developed their own system for law and justice. They have
their own jurisprudence i.e. Islamic Jurisprudence which was also
 29

known as 'fiqh'.^^ The literal means of 'fiqh' is wisdom.

Theoretically it is believed that 'fiqh' is derived from the Quaranic
Law (the Sharia) and is, therefore, regarded as immutable by any
h u m a n institution. The 'fiqh' is mainly drawn from two sources,
the Quaran and the Sunna which consists of the traditions
revealed to explain the Quran. It was observed that 'fiqh' did not
cover all cases.21 Ultimately, there was the conceptualization of the
analogy, which was called qiyas (analogy). Moreover, one source
was found which ultimately got recognition was ijma or in simple
words ^universal consent'.22

According to fiqh, four mains schools grew u p i.e. (1) the

Shafite (2) the Hanifite (3) the Malikite and (4) the Hanbalite.

The theory of fiqh does not recognize the non-muslims as a

citizen of the state. At that period of time there was vast non-
muslim population. It was impossible to rule the whole population
according to the strict injunction of their creed. From Shershah
onwards, the attitude of the rulers underwent a complete
transformation. They allowed this religious liberty and Hindu were
governed by their own laws. In any matter i.e. civil or criminal first
of all it was village panchayat who were allowed to use their
powers. When the parties are not satisfied to the judgment of the
Panchayat either party is free to prefer an appeal Qazi Court (it
happened rarely). Qazi was judicial officer (both in Civil and
Criminal matters). The 'Qazi' was supposed to perform following
functions:

20 Saran, P., The Provincial Government of the Mughals 1526-1658, (1973),

p. 336
21 Ibid. Keeping this in view faqihs were compelled to apply analogous cases
on such occasions.
22 Ibid
 30

1) To try and decide the cases.

2) To execute judgment.
3) To appoint guardians for those are incapable of dealing
with their property e.g. lunatics, minors and to manage Waqf
property.
4) Supervising and manage Waqf property.
5) Execution of wills
6) Charge of remarriage of widows.
7) Execution of punishment prescribed by religious laws.
8) Supervision of streets and buildings.
9) To collect the tax (in some cases).23
Moreover, in the Muslim period the system of awarding the
punishment was not uniform. It simply means that few men must
be punished for his first fault whereas as per situation or group
some were forgiven for many occasions.
In Muslim period the imprisonment was not recognized as
punishment. It was Abul Fazal one of the Ld. Minister of Akbar
who gave an interpretation that the Muslim rulers could award
imprisonment to the offenders.2'* Before him in criminal justice,
the Islamic principles of punishment was divided into three classes
i.e. (1) Hadd (2) Qisas (3j Tazib.

Hadd is that punishment the limits of which have been

defined in Quran and Hadis. The following belongs to this class:

(a) Adultery {Zina) for which the adulterer must be stoned.

(b) Fornication (Zina), for which the guilty person must receive
one hundred stripes.

23 7d., a t p 3 2 1 .
24 Devakar, Re-Socialisation of Prisoners, (1989), p. 58.
 31

(c) The false accusation of a married person with adultery

(Kazfl for which offender must receive eighty stripes.

(d) Apostasy (Ittidad), which is punishable with death.

(e) Drinking wine (Sharab), for which the offender m u s t receive

eighty stripes.

(f) Theft [Sarikah), which is to be punished by cutting off the

right hand.

(g) Highway robbeiy (qata'ut-tariq) for robbery only, the loss of

h a n d s and feet and for robbery with murder, death either by
the sword or crucifixion.

Qisas, literally means "retaliation" is that punishment which

although fixed by law, can be remitted by the person offended
against or in the case of a murdered person, by his heirs. It is
applicable to cases of murder and of wounding. Qisas is the 'lex
talionis' of Moses i.e. "eye for eye, tooth for tooth ", but in
allowing money compensation Muhammad departed from the
Jewish Code.

Ta'zdb is a punishment which is left to the discretion of the

qazi or judge.25

In the above classification it is found that no distinction is

recognized between the offenders on the basis of their status or
characters. Secondly, the principal of punishment was not
uniform. Sometime it is deterrent, sometime retributive and
sometimes it is comparatively milder and hence, reformative.

25 P. Sarkar, Hughes Dictionary of Islam quoted in The Provincial

Government of the Mughals, (1973), pp. 357-58.
 32

It is important to mention here that Abul Fazal, Minister in

Akabar government and in his preface to 'Ain-i-akbari' discussed
the general principles of punishment in which he takes the
personal character of the offender also into consideration.26 He
classified men worthy of punishment into two broad categories, the
inconsiderate man and the vicious man. If the inconsiderate man
commits some fault or crime owing to his foolishness, he should be
corrected by advice and admonition or severe censure, if
necessary. But in the case of vicious person a severe remedy is
necessary. First he should be imprisoned; if this remedy fails, he
should be deprived of his dwelling: if this also does not avail, he
should be exiled. If all these fails to improve him, he should be
deprived of the instruments of wickedness and lose his sight or his
h a n d s or his foot as a last resource. But the king should not go so
far as to cut the thread of existence. Abul Fazal then explains
further, "it is, therefore, necessary for j u s t kings to make
themselves first acquainted with the rank and character of men by
the light of insight and penetration and then to regulate business
accordingly." This principle of punishment based on a due
discrimination according to the character of the offender was
followed by Akbar is evidenced by the instructions he issued to his
Governor in this connection. Thus it cannot be said that the
Mughal emperors in that period strictly adhered to the Islamic
principles or even to the Islamic laws of punishment, although in
the case of certain crimes such as theft, their punishment were
practically same as prescribed by the Quran. In other matters, they
greatly departed from the Quaranic laws and the reason for this
departure was that firstly there were many cases which did not

26 Id., at p 358.
 33

come exactly wit±iin the ambit of the Quranic law. Secondly, in

many cases social and political needs and the attendant
circumstances demanded a different treatment. Consequently they
freely exercised discretion without being mechanically tied down by
any set of rules or laws.

An attempt has been made to classify the different kinds of

punishments which were given under the Mughal rule, with the
offences for which they were given.

1. Fines and confiscations, or forfeiture of rank and title,

or dismissal from office, or subjecting to humiliation by other
methods.
2. Imprisonment and internment.
3. Banishment.
4. Whipping and other corporal punishments.
5. Mutilation of the offending limbs.
6. Execution.
7. Cases of royal wrath.
The first three classes of punishments were often given to
government servants for different kinds of faults but other people
also received the same punishments for crimes of similar nature.
The public servants who committed the crime in their official
capacity can be broadly classified under two heads. Firstly, acts of
oppression on the people or direction of duty and secondly,
treason, rebellion or effrontery against the sovereign. Crimes of
injustice or misrule were punished in proportion to the gravity of
crime. '
 34

Regarding prisons in the medieval period, it is proposed

briefly review the system of punishment of criminals by
imprisonment, banishment and internment.

Despite these in the Mughal or medieval period the regular

jails for confining convicts were of two classes which for the sake of
convenience shall be called as 'A' class and *B' class jails. The *A'
class jails meant for imprisoning men of high rank, high
government officials and princes, that is to say, they were meant
for the royalty and aristocracy. Contrary to this, the TB' class jails
were meant for criminals of ordinary status, that is, for criminals
of ordinary status that is for the rank and file. For the royalty and
nobility several fortresses situated in different parts of the country
were used as prisons. Occasionally, however, the same fort was
used as prison for both classes of prisoners, although there were
separate apartments for them inside the fort.

The forts which were used as prisons were Gwalior,

Ranthambor, Rohtas (East),^^ Bhakkar,28 J u n n a i r (South)29 and
Biana.30 Probably some other forts were also used for the purpose.
It seems that the central prisons of provincial capitals were also
used to imprison political convicts of high standing and high
government officials. For instance, when Shah Abul Mallil turned
treasonous and was arrested, Akbar, spared his life, but sent him
to be imprisoned at Lahore under the custody of the Chief Kotwal.
On hearing the news of this incident Munim Khann, governor of

27 Finch, 145.
28 Bad.II, 300 and 366, also III, 88.
29 Or. 175, fol. 177a.
30 M. U. (Tr.) I, p l 3 4 , Muhammad Zamn Miija, J. Son of Sultan Husein
Biqara of Heart and Cousin of Babar, had revolted against Humayun and
was imprisoned in the fort of Bianna.
 35

Kabul, put Abul Maali's brother, Muhammad Hashim., Jagirdar of

Kahmard into the local prison.31

Beside the forts and central prisons of the capital towns,

there were jails also at the headquarters of the Sarkars and
Paraganahs. These public jails were called 'Bandikhanas'. But it
seems that besides the public prisons for common criminals there
were some better places for keeping under custody prisoners of a
higher status in life.32 There were regular 'Bandikhanas' in
Midnapore which was the seat of a Sarkar and at the seat of the
Shiqdar which was a paraganah,^^ A similar reference to these
smaller jails is to be found in a communication of Khan-i-Dauran,
Governor of Orissa (1600-1667) to his agent Muhammad Jan, when
sending him to some fraudulent qanungos and zamindars who had
been released from prisons.3^

The most prominent fort which was used mainly as a prison

for princes^s and occasionally for nobles and high official was that
of Gwalior.36 But part of it seems to have served as prison for
ordinary man also.37 Next to Gwalior in importance was the fort of
Ranthambor. This was like was used for both classes of

31 A. N.II, (Tr.) pp. 29-30

32 See Manrique, 1, p. 421
33 Saran, P., The Provincial Governments of the Mugals (1526-1658), (1973),
p. 367.
34 Sarkar, Studies in Mughal India, p. 216.
35 Monserorate, Antony, Mongolice Legation in Commentaries (1580-82),
Translated by Hoyland & Banerjee (London) 1922, p. 211.
36 Bandyoni, Al Muntakhab-ul-Tawarikh, Translated by Ranking, Vol. I & II,
p. 74.
37 Monserorate, Antony, Mongolice Legation in Commentaries (1580-82),
Translated by Hoyland & Banerjee (London) 1922, p. 211. Finch, 145;
Bemeir, 14; Mundy, 61.
 36

prisoners.38 It is not unlikely that the other forts might also have
served both purposes.

The scrutiny of entire period depicts that the period of

imprisonment does not seem to have been defined by any definite
rules, its determination being left to the discretion of the trying
Magistrate. Because at that time there were no criminal or penal
codes were in existence. In criminal litigations most of criminals
were disposed of by various means and ways. The penalty of
imprisonment seems to have been administered in the main to the
government servants, high as well as low, who were guilty of
breach of trust, fraud, oppression or treason. The common people
were consigned to custody in jails pending their trial and
judgment.39 Manrique and his companions were, for instance, put
in custody in the prison during the pendency of their trial.'^o
Similarly the boy servant who killed his master at Patna was put
under arrest and was released when the Governor could not
further proceed against him.'^i In the case of Government servants
it seems the time and conditions of release depend on the
discretion of the Emperor or the local authorities concerned. Three
circumstances provided the occasion for the exercise of discretion
in regard to the release of prisoners. The relatives or friends of the
prisoners themselves made supplications and begged forgiveness
which was often granted if the convict was considered to have

38 Saran, P., The Provincial Governments of the Mugals (1526-1658), (1973),

p. 345. In the 1 1 * year of reign, Jahangir, when moving from Ajmer, halted
near Ranthambhor and as the neighborhood of the said fort had become a
halting place for royal standards, released some of the prisoners who were
confined in the fort'.
39 Tavemier, Jean-Baptiste : Travels in India (1640-67) Tr. V. Ball. 2"<»
edition, revised by W. Crooke, London, 1925, pp. 162-166.
40 Ibid.
41 Ibid.
 37

undergone enough punishment for his crime. But it is in the

discretion of th: Emperor or his judicial officers only after their
satisfaction they can release the convict, all it is in their h a n d s or
as per their v/iii. Not often the influence of a Nobel or Minister
came to the rescue of a prisoner. Besides this the Emperor
themselves frequently inspected the prisons, enquired into the
conditions of convicts and released those who had suffered
enough. Simikirly, in the provinces and districts it was the duty of
the Governors and qazis regularly to inspect the prisons. They
have to see the conditions of the prisoner and to release the
innocent and those who deserved to be released. Suspects of any
sort of habitual crimes, such as theft, murder, robbery, larceny
were put uii.lcr arrest to ensure public safety.'*^

In the Mugal period there were few instances which clearly

indicate tb.at bail was granted to some accused persons from
prisons.^^3 ijunucci was accused of theft by Muhammad Amin Khan
the retiring Governor of Lahore and p u t into jail. But being a
favorite of Fidai Khan, the Governor designate, the latter had sent
orders fo his release. But the Kotwal told Manned that he had to
produce '. : '1 according to the law, for his release.'*'* There is one
more in jv.:ace that of Manrique and his party having been released
on bail fr duced by a.Muslim merchant of Midnapore.^s

42 All t. ' e points are given in full detail in the Farman of the Emperor
Aurr ; : b to the officials of the Ahmedabad Province. Vide Mirat (I. O.
MS.) /MI. 162-166.
43 Sara ' P., The Provinicial Government of the Mugals (1526-1658), 1973 at
p 3 e '.
44 Mar. ' riicolo: Staria do Mogor (1653-1708) by Nicolo Manncci, Edited
and Zy W. Irvine London, 1907.
45 Tave nltr, Jaean-Baptist at p 198 Travels in India (1640-67)Tr. V Ball 2nd
Ed. . i;od by W. Crooke, London 1925, p. 424.
 38

Moreover there were no clear account of life of convicts and

accused in prisons in present available literature. So once again to
Manrique a very lucid and full account of the conditions of the life
of prisoners in the jails. When Manrique and his party were
arrested on suspicion of being the pirates of Chatgoan and sent to
the Kotwal's court at Midnapur certain merchants were called to
identify them. One of these merchants was quite intimate with a
reversed priest at Banja who was a friend of Manrique's too. On the
strength of this acquaintance Manrique requested his merchant
friend to have them sent to some more comfortable place instead of
the ordinary jail where he was afraid they might be ill-treated. But
as their identity was not yet proved, his request could not be
granted. The merchant however, offered to see the jailer and
provide for their comfort. Being taken for pirates they were chained
and collared with an iron ring. But through the good offices of their
merchant friend who stood security for them not only their chains
and'*collars were removed but they were given beds to sleep and
supplied with food from the merchar^s home. Moreover, a surgeon
was called to treat their wounds and his application worked like
magic, curing them completely in a few days to the great
administration and wonder of Manrique. Their merchant friend
also visited them daily and provides them with all possible
comforts.'^^

The above instance clearly shows that the accused persons,

who were not convicted, were provided with facilities. In this case
the food was allowed from outside. Beds were also provided to
sleep. The surgeon was also allowed to cure them. Moreover, near
ones were also allowed to visit the jail. But it could happens only in

46 M , at p. 424
 39

tJie cases of persons who are suspects of crimes, not for the
convicted persons in the Mughal period the deterrent and
retributive theories of punishment were very much in practice.

Overall it was Abul Fazal one of the learned minister of

Akbar, who gave an idea of imprisonment to the Mughal rulers.
Ultimately Akbar was the first Mughal ruler who introduces
imprisonment in his administration of criminal justice was a great
departure from the Muslim law. It could be looked upon as the
seeds of pen correctional philosophy an5rwhere in the world at that
time. This system of imprisonment found a very favorable climate
and flourished under 'Jahangir' under the name of justice with
high sensitivity to humanness, compassion, kindness and noble
qualities of head and heart. Jahangir was followed by Shahjhan
who himself spent his last eight years at a captives of his son in
Agra Fort. This was 'A' class prison. The room where he spent his
time of imprisonment was well maintained and now is open for the
visitors or tourists. At the time of Shahjhan the offender could not
get generosity from the administration and any reform in prison
administration. Shahj ban's rule was usurped by his son
Aurangzeb. When crowd gathered near his red fort to protest
against inequality and discrimination, the imperial elephants were
ordered out to crush them.47

In the medieval period the administration of criminal justice

deteriorates "where the offender was deprived from his liberty and
is physically forced on the point of pain and torture show
obedience to the dictates of the states. Hardly any faith was left in
the power of 'dharma' or religion to reclaim the offender to social

47 Sagar, Satya Parkash, Crime and Punishment in Mughal India, 1967 p.

159
 40

ways of life.'"*^ In the late medieval period at the same time with
the growth of Mughal Empire on Indian soil, the Portuguese were
actively developing their navigational activity which was to be
treated as prelude of western powers into India. Portugal was
under the sway catholic church with zealous fanacism.

During the late medieval period, the Christian Church had

granted asylum or sanctuary to fugitives and criminals. These
canon courts were traditionally forbidden to shed blood. Therefore,
they adopted the Christian theme of purification through suffering.
The wrongdoers were subjected to reclusion and even solitary
cellular confinement, not as punishment alone, b u t a way of
providing conditions under which puretants would most likely
occur.49

In 1600 the Portuguese constructed the Church prison at

Goa. They ruled Goa for a long time. It consisted of a complex of
buildings each two storied high, containing a total of nearly two
hundred separate cells. A corridor ran the length of the buildings
with seven or eight cells on each side. The cells were about 10 x 10
ft. with a small, barred, unglazed window in the vaulted ceiling,
dark, somewhat lower and smaller.^o

rv. Development in Prison System during British Period

On December Sl^t 1600, a company was incorporated in

England by a Charter of Queen Elizabeth, known a s East India
Company. By 1623 the said Company was authorized by the king

48 Devakar, Re-Socialization of Prisoner, 1989 at p. 36

49 Johnson Norman, The Human Cage in Correctional Institution, Carter
Glasser and Wilkins (Ed.), 1997, p. 4.
50 Devakar, Resociolisation of Prisoners, 1989 at p 64.
 41

of England for the purpose of establishing trading in India, and the

Company officer had been empowered to exercise legal control over
the Company's British Servants, who were to be governed by
English rule as prevalent in England. The Company gradually
establishes its own policy and judicial system. The King Charter for
1661 extended the company's jurisdiction to include Indians and
others living in the settlement and authorized the Governor and
Council in each presiding to judge all persons belonging to the said
government and company or that shall live under them, in all
cases whether civil or criminal. A report submitted by Hamparey
Cook in 1665 recorded the following observations, "I have
enordered a prison to be made to keep all in quietness, obedience
and subjection, this people generally been hereditigious.''5i In this
period the jails were much in demand and remained as poorly
administered as in Mughal regime.

It was proved that the Company's jurisdiction on a more

satisfactory basis in the Charter Act of 1726. For the
administration of criminal justice on 15^^ August, 1772, the
Committee of Circuit, headed by Warren Hastings, drew a plan,
which was adopted by the Committee on 21st August. There was no
centralized system of prisons and these existed as adjunct at the
Faujdari Thana and the criminal court of the district.

A person was attached to each Fauzdari Thana as well as to

the criminal court of the district under the superintendence of the
Fauzdar. The Fauzdari prison was intended only for a temporary
stay of the prisoners who was to be presented to the court and
then put in the criminal jail after his commitment. As

51 Fawcett, Sir Charles, The First Century of British Justice in India, 1934.
 42

Superintendent of Prisons, the Fauzdar was to maintain regular

accounts of prisoner for the running off and supervision of the
Daroga or Judge of the Court. ^2 it was evident from the remarks
by Mishra^^ that, at the time there was separation between jails
and lock ups. A system was adopted, so as to send a person to the
jail. He rightly observed that:

"The jail appears to have been formerly any building in

the vicinity of the court of the justice, which would
commercially be hired or appropriate for the purpose."54

It is very much clear from the facts that Britishers require

only the place for isolation of prisoners, with the condition of place
or jail, they h a s nothing to deal, because at that time, they are
establishing their empire in India. It was again clear from the
Aspinal's view i.e. "The Fauzdari goals were all sorts of make shift
arrangements made with no genuine concern for the life and living
of inmates. Sometimes Government found it more convenient to
rent them to build a goal. The one at Dacca was hired for Rs. 30 a
month and a Diwani gaol at Murshidabad for Rs. Fifteen only.''55
The gaol was a place where the prisoners were kept. The condition
of such gaols were very much terrible and poor or in bad condition.
Again it was observed from the writings of Aspinal:

"Until 1790 the prisons being a part of the Fauzdari

Department were under the general management

52 Misra, B.B.: The Central Administration of East India Company, Indian

Branch, 1959, pp. 315-16.
53 Ibid
54 Farminger, W. K., Bengal , Past and Present, Vol. III. Some reports related
to origin of the Late presidency jail, quoted in the affairs of the East India
Company, Neeraj Publishing House, Delhi reprinted, 1984, p. 86.
55 Aspinal, A, Comwallis in Bengal, 1931, p. 31.
 43

Naib-Narzim and his subordinates, t±ie Judges of the

Fauzdari Courts.... The judges were in the habit of
confining accused persons for long periods before
bringing them to trial, their subordinated, the
Thanedars, frequently imprisoned people without any
show of legality."56

When the Judges were of habit of confining the accused

persons then it was clear that there was no place for reformation of
prisons. The Superintendent the Thanedhars also imprisoned the
peoples without any reason. No one can think u p of reforms in the
prisons, because the prisons were only the punitive home or place
for isolation. The higher authorities have no concern regarding the
prison reform because they are quite busy with other matters.
Either that is related to the war with different empires in India or
to go for other works. It was also reported in the Calcutta Gaol
which had ever been the charge of the British in J u n e 1785, the
rooms in these goals were knee deeper in water, and the floors
being on a lower level then the surrounding lands; many of the
inmates were naked. Many goals were terribly overcrowded and
criminals and debtors, men and women, were often confined in the
same building and even in the same room.^'^ Keeping in view it is
evident that there were no prison reforms.

It was the Regulation of December 3, 1790, transferred the

management and control of the jails from Indian hands to
European h a n d s and the Magistrate was p u t in Charge of jails in
his district. According to the Comwallis, regarding jails, he said
that humanity cried for a remedy and he told the Court of

56 Id., at p 3.
57 rd., at p 4.
 44

Directors in December 1792 that he had resolved to rebuild all the

jails in the province, in such a style that health and niorals as well
as safety of the prisoners would be secured.58 As a consequence,
the Regulation IX of 1793 came into being which provided prison
as a system and emerged as the first comprehensive codification of
rules for the management of jails, which also specified the objective
thereof. The prison by that time was well recognized, separately
indented institution for the detention of persons awaiting trial
before the court and also for keeping persons from guilty and
awarded a sentence by the court under the management of the
collector and Magistrate of the District.

It is pertinent to mention here that under the East India

Company Rule by this time, there were 143, Civil Jails, 75
Criminal Jails and 68 mixed jails with a total accommodation for
75100 persons has been built in Bengal, North West Provinces,
Madras and Bombay.^^

It was the 1835 when Macaulay had adversely commented

upon the conditions prevailing in jails in the following words:

"Whatever I hear about the Indian Prison, satisfies me

that their discipline is very defective Hundreds of the
worst and most desperate criminals are assembled there.
They are collected in one great body. There are therefore
quite able when their passions cure inflamed to an over
power any resistance with those who are placed over
them can after to their fury. It is only a few months since

58 Devakar, Re- Socialization of Prisoners, 1989, p. 79

59 Ibid
 45

they murdered the Superintending Magistrate. At

present, no visitor can enter without danger and this evil
exists at the very spot at which the greatest quality of
European Government, under the very eyes of this
Supreme authority... when such is the state of the jail at
the presidency, we can hardly suppose that a good
system is followed in the Muffusil. And all I can learn on
the subject leads me to a believe that the prisons of India
generally requires a great improvement... what I would
suggest is that a committee should be appointed of the
purpose of collecting information as to the state of India
Prisons and of preparing an improved plan of Prison
disciple. 6°

Comments of the Lord Macaulay, make the impact on the

Governor General as he put almost true picture of jails and on the
humanity ground it required very much improvements. So on the
recommendation of Lord Macaulay, the Governor General in
Council, on J a n u a r y 2, 1836, appointed a Committee of which
Macaulay was a member. This Committee submitted its report in
1837, in which it severely criticized the prison system. The
Committee deserved the following in describing the horrible
conditions of Indian jails at that period which is worth
mentioning:-

"On the whole, generally the care that is taken of the

physical conditions of the unfortunate men in the great
essentials of cleanliness, attention to the sick and the
provisions of food and clothing appears to u s to be

60 Chandra, Sushil, Sociology of Deviation in India, 1967, pp. 97-98.

 46

highly honourable to the Government of British

India.... "61

"As it appears to u s , that which has elsewhere been

deemed the first step of prison reform h a s now not to be
taken in India... what was in England the second stage
of prison reform seems to be nearly the present stage of
prison discipline in India. The physical condition of the
provisions h a s been looked into but nothing more, and
the consequence here, as in England, h a s been that a
prison, without being the less demoralizing, is not a very
unpleasant place of residence...."^2

"The mixture of debtors with criminals which in some

places still exists in England, and which appeared
universal in North America, is unknown in any goal in
India... The mixture of the two sexes in Indian prisons is
unknown and in general, the separation of tried and
untried prisoners is at least as complete in India as in
other countries."63

The Committee also expressed that "we are not sanguine

in the hope that we shall be able to affect any material
reform in the moral character of convicts."64

The committee further observed:-

"Several officers have recommended the education of

prisoners, that is to say that they have instructed them

61 Recommendations of Committee on Prison Discipline 1838, p. 38.

62 Ibid.
63 Ibid.
64 Id., para 275
 47

in reading, writing and ciphering. Such a system would

involve very heavy expenses and we must say that there
are no other 55,000, in India when we do not think more
deserving of education at the public charge, those
56,000 criminals in gaols. That any part of that very
small s u m which the state has hitherto been able to
expand upon the instructions of the people should be
consumed teaching the worst class of people in the
community, the class would be least likely to turn their
instructions to good account and the class who least
deserve public favour is a proposition which we cannot
approve. "65

Commenting upon the jail system of India during the regime

of East India Company (1818-1857), R. C. Majumdar and
Kalikinker Dutta,66 observed that the early Indian Jail system was
like English proto type, in sanitary, demoralizing and non-
deterrent. The earliest attempt for prison reform was made by the
Regulation Act, 1834, at the initiative of Lord Macaulay. No change
for the better was introduced until the passing of an Act in 1855,
which provided for the appointment of Inspector General of Prisons
in each Presidency and the passing of Act VII of 1856 by which the
judges of the Sadar Faujdari Adalat were relieved of the Charge of
Jails.67

Recommendations of the Committee clearly told the true

picture or condition of the jails during this regime. As the

65 7d., para 271

66 Majumdar, R. C. and Dutta, Kalikindar, British Paramountey and Indian
Renaissance, 1970, pp. 383-84.
67 Ibid
 48

Committee experience the bad and unfortunate conditions of jails

either it is the matter of food, hygienic conditions or cloths, it is
evident that prisoners were not allowed for the reforms from crime
to socialization or from bad to good.

Whereas the England was going for second regime of prison

reforms in India there is nothing like this. However, the conditions
of Indian jails were very bad. Even they do not want to expand
money on reforms. It was the Lord Macaulay who first of all thinks
of the prison reforms. But it takes a lot of time to materlize the
things for prison reforms. Committee submitted its report in 1837
but the Act was passed in the year 1855, almost after 18 years of
the recommendations of the Committee. So it was clear that British
Govemmient was not interested in the Prison reforms, because
their ultimate object was to exploit the Indians and natural Indian
resources.

Revolt of 1857 and its impact on Prison Administration

In Indian History it was the year of 1857, which witnessed

the most floozy and tragic event. In this year Indians make the first
revolt against the British. This revolt has a great impact on the
British administration in India; either it is general administration
or prison administration. Consequently, it comes to the knowledge
of Indians that British were not here any for business or trade
purpose and they have something different in their mind.

The gradual evolution of an efficient system of

administration is one of the most remarkable phases of the history
of British rule at that time. As a result, the administration reached
at its highest degree of efficiency in the second half of the
 49

nineteenth century. A highly efficient and effective system of

Government was developing at that time for providing an improved
law, order and justice including a well defined prison structure and
policy. During this period three Law Commissions were appointed
towards developing uniform substantive law and legal system in
India. In August 1860, Government of India appointed a
Commission to investigate into the police administration for
increasing its efficiency and reducing its high expenditure.^s The
recommendation of this Commission was embodied in the Police
Act of 1861.

Ironically, with regard to administration of jail no

improvements were materialized and effected. The position was
somewhat changed or reviewed by the Second Prison Committee
appointed by Sir Lawrence, on S'd March 1864. The Governor
General in the minutes (dated 3.3.1864), recorded the following
observations regarding state of prison administration during the
period as under;-

1. The subjects of Jail discipline and the condition of

prisoner in India appears to be in question which calls for
earnest consideration at the present time.

2. A period of twenty six years has elapsed since the Prison

Committee appointed by Lord William Bentinck submitted
their report in which the evils of than existing system of
jail management as fearlessly exposed and certain
reforms recommended and carried out but it is generally
admitted that the full measure of improvement
contemplated by Lord Bentinck and to which the

68 Id., at p 837
 50

Government was pledged by a legislative enactment

(Regulation II of 1834) has never been carried out.

3. Although much good has been effected by the

appointment of Inspectors of Prison in the different
Presidencies of Provinces, and though doubtless there has
been amelioration of the condition of prisoner of all
classes in the country, especially as regards food and
clothing, yet still little progress has been made either
towards the improvement of the prisoners or the
prevention of crime, while the loss of life amongst all
cases of those confined in jails continues, year after year
to be very great, amounting at present to 7 percent.

4. When this death rate is compared with the morality in the

jails in England, which is less than one percent, it will be
at once seen in how many cases the sentence of
imprisonment in India becomes virtually one of capital
punishment and it seems on this ground above that the
inquiry is forced upon us, as to what steps should be
taken to reduce the great morality which for exceeds that
amongst other classes of the population."^9

Death rate of prisoners in prisons in India was 7% as

compared to England i.e. one percent and sentence of
imprisonment virtually converted to capital punishment than how
one can think that the Government of British India was making the
efforts for prison reforms and the things remains on the paper only
and nothing got materialized. However, it was some sort of
beginning at that time.

69 Minutes of Governor General in Council, 3'^'' March 1864.

 51

Subsequently, second All India Jail Committee was

appointed to minimize the high death rates in Indian Prisons and
for consideration of related other aspects of jail administration. The
Committee recorded that during 1854-64 not less than 46,309
deaths had occurred inside prisons. Some of the important
recommendations of the 1864 committee report were as foUow:-

i) they fixed a minimum space for each prisoner in jail viz. 54

Superficial feet and 640 cubic feet per prisoner;

ii) they recommended improvement in the diet, clothing,

bedding and insisted upon regular medical inspection of
prisoners;

iii) they recommended employment of medical officers to be in

charge of central prisons and district jails;

iv) that every central jail should have cellular accommodation

for 15 percent of its population;

v) that juveniles should be kept separate from other prisoner

and they should be given education;

vi) that a logical principle be developed in putting to labour

prisoners sentenced to rigorous imprisonment as follow:-

"that there should be three descriptions of labour:- (1) Hard;

(2) Medium; (3) Light; that proportion of each allotted to a
prisoner, should be regulated to the length of his sentence
after the following table:-
 52

Table

Year Hard Medium Light

Up to 3 yrs 18 months 12 months 6 months

Up to 4 yrs 2 yrs 18 months 6 months

Up to 5 yrs 30 months 18 months 6 months

Up to 6 yrs 30 months 30 months 1 yr

Up to 7yrs 3 yrs 3 yrs 1 yr

vii) That education may be a reward or a punishment

according to the character of the prisoner to whom it is
accorded and education may be used as a means of
prison discipline, but on no account lead to any
relaxation of sentence.""^o

Thus, these recommendations of second All India Jail

Committee only talks about the basis structure of jails not of
reforms of prisoners or prisons. On the humanitarian ground how
the prisoners should be placed and how the death rate was to be
reduced was discussed. There was nothing in this report for the
classification of prisoner's i.e. habitual and other offender.
However, there was one recommendation for separation and

70 Report of the Indian Jail Committee 1864, p. 28.

 53

education of juvenile offenders. But nothing was there for

relaxation in the period of imprisonment.

Afterwards a Conference of Experts was held in Calcutta''^ in

J a n u a r y 1877, where another inquiry into prison administration
was initiated. However, it may be the noted that by 1888, five
separate enactments had been passed in different states of India
governing the management of prisons namely:

1. An Act for the Better Control of Prisons Within the

Presidency of Bombay (1856).'^2

2. An Act for the Regulation of Jails in the City and Presidency

of Bombay'73 and Enforcement of Discipline therein. (1864).

3. An Act for the Regulation of Jails and Enforcement of

Discipline (Bengal 1874).

4. Madras74 Jails Act (1869) and

5. Prisons Act, 1870 made by the Governor General in Council.

However, these Acts differed inter se on various important

points regarding prison administration. Therefore, the Calcutta
Conference proposed enactment of a Prison Law which could
secure uniform prison system throughout the country and as such
a draft Bill was prepared. But again the matter of passing on
legislation was postponed.'^s

71 Now known as Kolkata

72 Now known as Mumbai.
73 Ibid.
74 Now it is Known as Chennai.
75 Government of India, National Archives of India; Documents connected
with Prison Act, 1894, Legislative Development Proceeding Nos. 164-211.
 54

Again it was observed that the Government of India (British

India) was paying no heed to the prison reforms. As they
materialized nothing in this concern, they were working under one
head, but every Presidency was making the rules as per its own
desire and will and without uniformity in laws related to prison
administration. It was baseless to think about the Prison reforms.

In 1888-89 the Government of India appointed another

Committee to examine the jail administration with a view to look
into the actual carrying out of those principles and to endeavor to
produce greatest uniformity on practices throughout India. On 9 *
October 1888, the Governor General in Council in a resolution of
the administration of jails in British India resolved the following:

"The administration of jails with respect to economy,

sanitation and discipline has for many years received the
careful attention of the Governor General in Council.
Three Commission (in 1834, 1864 and 1877) have under
the orders of the Government of India, Considered and
reported upon the general principles which ought to be
observed in the management of Indian jails. There is on
the part of the Governor General in Council, no wish to
reconsider the principles so laid down, but an
examination of the statistics of jails in the different
provinces and even of prisons in the same province
shows that great diversity of practice exists in carrying
the principles into effect. The Governor General in
Council is not to be understood as educating absolute
uniformity of administration in all provinces in
connection with jail administration. He admits that local
 55

circumstances must always give rise to divergences of

practice, but an examination of the provincial reports for
some years satisfies him that the divergences in regard
to the cost of maintaining prisoners in regard to the cost
maintaining prisoners, in regard to their sanitary
condition and in regard to discipline, points to the
existence of defects which it is desirable to remove.
There being no longer any doubt regarding principles
and the question being one of practices, it appears to His
Excellency in council that improvement can be best
effected by means of a careful and through examination
by experts on the spot into the causes which operate in
certain provinces and certain jails to produce, e.g. a
variation in the death rate ranging from 11 to 72 per
mile of average strength, a variation in the cost of
maintenance of prisoners per head ranging from Rs. 44-
11-7 to Rs 91-2-10, and a variation in the ratios percent
of punishment for offences against jail discipline ranging
from 33 to 328."76

It was the Committee of 1888 which framed elaborate rules

for prison administration and recommended separation of
undertrial prisoner, classification of prisoners into casual and
habitual, building of hospital in each jail and also recommended
for proper training of jail officials.

Since from the British regime over India, it was the first
committee, who talks about the special and proper training of jail
staff and separation of tried and under trial prisoner i.e. guilty and

76 Jail Administration in India, Report of 1889 Committee, Government

Printing Press Calcutta.
 56

accused. It gave some light towards uniformity of jail laws and

prison reforms in India.

On the basis of the recommendation of the Jail Committee of

1888, a consolidated prison bill was prepared. The committee's
recommendations were specially examined by another Conference
of Experts on Jail Management from all Provinces which was held
at Calcutta in 1892. The Draft Prison Bill was circulated to all local
governments on March 25, 1893, for their observations and
thereafter, it was presented to the Governor Generals Council. This
came into being as the Prison Act, 1894, which is still the current
law governing administration of prisons in India.

It was the time when Government of British India was going

for codification of uniform law which governs the whole India.
Keeping this in view Prisons Act, 1894 was first legislation which is
especially for prisons administration for whole of India. In the year
1914 Released Prison's Society came into existence with main
object of protecting the prisoners who had erred and reclaiming
them to virtue.•^'7 This society worked of the rehabilitation for the
prisoners after release.'^^

In 1919 one more all India Jail Committee on Prison

Administration was appointed that is Indian Jail Committee, 1919,
headed by Sir Alexandar G. Carclew as its Chairman."^9 jn the
context of penology and prison administration, the first concrete
effort towards jail reforms was to catch u p with the reformative

77 Id., at p. 351.
78 This society functioned effectively tUl 1946 and then was amalgamated
with Bombay Probation and Cases Association.
79 Singh Indra, J., Indian Prisons, A sociological Enquiry, 1979, p. 23
 57

methods being tried in West.^o The Committee assembled in

London for its first meeting and visited penal institutions in
England, Scotland, U.S.A., Japan, Philippines and Hong Kong and
then undertook a thorough tour in India including Andaman and
Burma. The main idea behind the appointment of the Committee
was to overhaul the jail administration and to introduce the upto
date changes in it. It was evident that the prison administration
was lagging behind in reformative approach, it was devoid of
humanitarian elements and the prisoners were denied the
attention for their individual and social rehabilitation.^^ The
Committee submitted a valuable report comprising more than 500
pages which contain information on matters both of principle and
practice of prison policy, administration and reform. The following
extracts of the report may be mentioned here under:-

"The Indian Prisons have made notable advances, as

we have said, in the material aspects of
administration, health, food, labour and the like.
Possibly, the influence of the report of 1838 h a s to this
day not been exhausted. Whether this be so or not, it
is certain the Indian Prison administration has
somewhat lagged behind on the reformative side of
prison work. It has failed so far to regard the prisoners
as an individual and has conceived of him rather as a
unit in the jail administration machinery. It h a s a little
lost sight of the effect which humanizing and civilizing
influences might love on the mind of the individual
prisoner and has focused its attention on his material

80 Ibid
81 Ibid.
 58

well being, his diet, health and labour. Little attention

h a s been paid to the possibility of moral or intellectual
improvement. In consequence, while the results of the
Indian Prison treatment are admitted generally to be
deterrent, they are not generally regarded as
reformatory. Witness after witness, from almost every
province in Indian jails do not exercise a good or
healthy influence on their inmates, that they tend to
harden if not degrade and that most men come out of
prison worse than they went in. We do not all endorse
this view but in so far as there is truth in it is a result
we conceived, not of the men by the system."^2

The Committee recommended the establishment of separate

institutions like Borstal School for Juvenile Delinquents. The
under trials were to be kept separate from the convicted and the
adult convicts were to be classified as habitual and casuals.^^ It
also took a serious view of the transportation of convicts to
Andaman Island and recommended for the discontinuation of the
practice. Solitary confinement was to be abolished and convicts
were to share barracks in groups as habitual and casuals. All
convicts below 29 years of age were to be cared under Adult
Education Programme and libraries were to be established in all
jails.84

In more than a 500 pages document. Chapter XI, which

deals with 'Reformative Influences in Prison', covers only 14 pages
and the subject is limited to following five items only viz:-

82 Indian Jail Committee Report, 1919-20 pp. 30-32

83 Singh, Indra J, Indian Prisons, A Sociological Enquiry, 1979, p. 25.
84 Id., at pp. 26-27.
 59

i) Remission to Prisoners
ii) Gratuities to Prisoners in Prisons.
iii) Interview and Letters;
iv) Education, Prison Libraries and supply of Books and
periodicals and
v) Religious and Moral Instructions and Religious
observances in Prisons.
Remission to prisoners, Interviews with their family members
and to write them letters, educational matters and religious
matters are allowed to the prisoners before this committee's
recommendations. Except for the system of gratuities to the
prisoners, all other items were already existed and the Committee
merely suggested partial modifications. Nevertheless, it should be
noted that it was the first time in the history of prisons
administration in India that, 'reformation' and 'rehabilitation' of
prisoners were identified as the objectives of prison administration.
It is found that Indian Jail Committee 1919-20 makes
the end of an era of administration of jails by the Government
of India, because under the 'Government of India Act 1919',
the prison administration fell within the powers of Provincial
Government. After Government of India Act, 1919, the
Provincial Governments were changed with duties in respect of
administration of justice and jails. As to look the state of
affairs of prisons in India during 1920-1947, political situation
of that time should be noted. The non-cooperation movement
gathered momentum in 1921. According to Majumdar, "as
there were nearly 30000, political prisoners, the jails lost its
terror and imprisonment became a badge honour, and later a
passport for a seat in the legislature or parliament, was a
 60

phenomenon, unique in history not seen in any other part of

the world.''85

Pandit Nehru who guided the freedom movement in many

ways and himself suffered imprisonment for long terms wrote in
1934 from Allahabad, "thus it is obvious that political prisoners
must expect progressively bad treatment. In 1930-31, the
treatment was worse-off in goal than a non-political convict. Every
effort is often made to harass him u p to apologizing or at least to
make him thoroughly frightened of prison. An Indian prison is after
all a replica of the larger India. What counts is the objectives it
h u m a n welfare or just the working of a machine or preservation of
vested interests? Why are punishments given as society's or
government's revenge, or with the object of reforming?''^^

After the transfer of the subject of jail to the provincial

governments under the 1919 Acts,^'^ some Committees at the
provincial level examined the jail system in the respective province,
such as Report of the United Province Jails Inquiry Committee
1929. The Committee examined "reformatory influences inside the
jail" and recommended the following for the well behaved convicts:-

i) Increase in the award of remissions,

ii) Some cash allowance;
iii) Better and gur,
iv) Use of Shoes,
v) A hand fan during summers and rains.

85 Majumdar, R. C. and Dutta, Kalikinkar, British Paramountacy and Indian

Renaissance, 1970, p. 982.
86 Nehru. J. L., Prison Land, Appended to Report of All India Committee on
Jail Reforms, 1980-83.
87 Government of India Act, 1919
 61

vii) Increased letter facilities for interviews,

viii) Special food of festival days,
ix) Compulsory education to juveniles and adults u p to
the age of 25 yrs.
x) Increase in Library facilities and,
xi) Appointment of paid agency for imparting religious
and moral instructions.
In United Provinces after the Government of India Act, 1935,
which provided the provincial autonomy, two other Committees
were constituted, namely Expert Committee on Jail Reforms, 1938
and United Provinces Jail.
During the period 1907-1927, steps were initiated to improve
prison methods by establishment of Borstal Institutions for
youthful offenders. In the year 1938, the Bombay Government
granted to the prisoner the facility of writing letters and has
interviews from friends and relatives. In the same year, the
Government issued a circular by which the prison medical officers
invariably had to obtain a second opinion, when a prisoner was
seriously ill.^s in the year 1948, they were also allowed to have
treatment from the physician surgeons of their own choice. In
1948, the Government of Bombay stipulated that each prisoner
should be paid for his labour inside the jail on the current market
rate so that he may not feel that he is being under paid. For his
food 85 clothing etc., Government could retain 4 / 5 of his earnings
and the remaining 1/5 was to be remitted to the family of the
prisoner.89 In the same year government abolished the system of
solitary confinement in general and the same could be inflicted in

88 Jindal, V. K., A Commentary on the Punjab Jail Manual 338 (1987)

Provisions of Mental Asylum Act of 1858 were applicable to all prisons.
89 Id., at p 341
 62

cases of violence inside the prison and that too with the approval of
highest prison authorities. The prisoners were also allowed the
facility of radios.^o

In 1938, school masters were appointed in Belganm and

Ahmedabad, Central Prisons.^i In the year 1939, the jails at
Kattack in Orissa and Krishnanagar in Bengal were electrified.^2 jn
the year 1939, Women's Social Service Institution of Bengal began
to impart instructions in suitable art and cottage industry to the
female prisoners. It was a very innovative step.^s

Few things have been changed after the implementation of

the recommendations by these Committees. But actually as most
of the freedom fighters were sent to the prisons, because they were
demanding independence for Indian from Britishers as India was
governed by the Britishers. Due to this reason they were giving
them very deterrent punishment in jails, so that they can stop the
revolt against Britishers. There are so many examples of the
inhuman treatment to the prisoners and so many freedom fighters
and revolter who raised the voice against this. Great Bhagat Singh
and other revolutionaries gone for hunger strike until death
against the bad condition of jails and after near about fifty days
when few of them lost their lives. After the Britishers stop this
strike and promised them to provide better facilities in the jail. It is
rightly to that conclude much of the work for prison reforms in
British period was done only on papers, and less was materialized
actually. Bhagat Singh, Sukhdev and Rajguru were hanged before

90 Id., at pp. 326 and 342.

91 7d., a t p 3 4 3 .
92 Ibid.
93 Barker, F. A., Modem Prison System of India, 1944, p. 345

,^MSL
 63

the time fixed for their hanging and even in the night time. It
shows the clear picture of no compliance to the prison reforms
before independence.

V. Development in Prison system after Independence

India got the independence on 15*^ August 1947.

Independent India has a lot to do not only in the field of prison
reforms, but in every field. It was the state of Uttar Pradesh who
first of all looked for prison reforms. With the dawn of
independence, prison reforms especially in the state of Uttar
Pradesh, was given increased attention. Indian leaders were ready
with a blue print for the industrial development of the country, but
the jail reforms could not escape their eyes as well of them passed
their prime time of life in jails and most of their writings were
conceived and accomplished in the prisons.^'^

Moreover, all the leaders were in the situation placement as

for prison reform was concerned many of them were the victims of
the jail administration. The Government of Uttar Pradesh
appointed a very important committee known as U. P. Jail Reform
Committee 1946, and all its recommendations were accepted by
the Government." The chief objective for the appointment of the
committee was to bring the prison administration of the state at
par with that of some of the advanced countries of the world. It
was this committee which conceived the idea of a model prison for
the experiment of its recommendations.^5 The approach of the
committee was sociological in nature and it emphasized
classification, education, training and self-sufficiently. The

94 Singh Indra , J, Indian Prison : A Sociological Enquiry, 1979, p. 27

95 Ibid.
 64

committee was alike to the difficulties facing prison reforms; the

greatest of them was social prejudice against criminals and non
availability of trained personnel's.^6

Because of these difficulties which led to the idea of

establishing "a model prison where most of the latest principles of
penology could be tried and the prison may serve a s a pilot project
for stimulating reforms in other jails and penitentiaries of the state
as well a s in the country. "^7

At present custodial institutions of the state are broadly

divided into two categories:-

a) District Jails - where convicts of all sorts of crimes are confined

for some time and later lifers and other convicts of heinous crimes
are sent to central prisons. At that time there are forty eight
district jails in the state.

b) Central Prisons:- The Central Prisons are of three kinds:-

i) Central Prison for lifers and for other heinous crimes are five

ii) Open Camps are two in the state where mostly casual
prisoners are kept and they earn their wages and

iii) Model Prisons is one in the state where all latest sociological
principle of penal reform are incorporated.^s

The committee advocated the idea of classification on the

basis of habitual and casual criminals and recommended that the
best should be segregated from the ward. The casual convicts

96 Ibid.
97 Ibid.
98 Ibid.
 65

varying between 25-40 years, having good healt±i, families ties and
industrious by nature should not be left to their lot. But every
effort should be made to restore their lost dignity, to reclaim their
lost personality, morality and integrity and cultivate such an
environment which they could develop a sense of self reliance and
insight into the life situation both, inside and outside the prison.
The self supporting community of the prison was emphasized to
cut expenditure and relieve the society of the burden of growing
taxes and infuse a sense of self respect among the inmates.

Therefore the committee, for the realization of these

objectives, gave priority to education, training in trades, generous
parole and scheme for wage payment. Subsequendy, began the
experiment of the recommendations of the committee in Fategarh
Central Prison, with a batch of twenty four prisoners. It was the
pilot project where the applicability of the views of the committee
was tested. The success of the experiment at Fategarh led to the
conversion of Lucknow Central Prison, which was constructed in
1860, into the Model Prison in 1949^^ and open prison was also
attached to it in the same year,ioo based on the suggestions of
Pakwasa Committee, ^oi Here prisoner were made to work on
handloom machines and engaged in other home industries. The
first open jail for women was established in Maharashtra at
Yarwadain 1955.102

In the year 1951, the Government of India paid heed towards

prison reforms and correctional programmer. The Government

99 Jbid.
100 Panajaye N.V., Criminology and Penology, 2003, pp. 309-310
101 Ibid.
102 Ibid.
 66

requested the United Nations, under the Technical Assistance

Programme, to lend an expert in criminology and correctional
administration for training a batch of jail officers and to advise the
Government of India for furthering development of correctional
administration in India. Dr. Walter C. Reckless, an expert of the
U.N.O., arrived in India on October 2 1 , 1951. In his report he
recorded the scope of the mission :-

"Although the mission was designed primarily for the

training of jail officers in progressive methods of jail
administration, a secondary aspect of the mission,
namely the stimulation of local and national interests in
the newer approaches to the treatment of adult and
juvenile offenders has loomed very large.'^o^

With this view Dr. Reckless ReportiO'^ have some valuable

recommendations, both national and state level for improving
correctional administration in India, particularly of jail
administration, as some of which could be summarized as under:-

National Level

i) An advisory bureau of correctional administration should

be established at the Central Government immediately so
that the state could be helped in the development of their
correctional programme,^os

103 Reckless, W.C, The Crime Problem (1956), p. 14

104 Recommendation from the Report submitted by Dr. W. C. Reckless
105 Ibid.
 67

ii) The Government of India should consider the need for

specialized technical assistance in this field ^^^

iii) Fellowships in the correctional field to prepare competent

persons to fill higher positions, e.g. Inspector General of
Prisons and his Deputies, ^^'^

iv) The Central Government should encourage the

development of professional conferences of the superior
staff members, and ^^^

v) An all India conference of persons working in the

correctional field, both adults and juveniles, ^^9

vi) Solitary confinement as a mode of punishment should

abolish. 110

State Level:-

i) Establishment of whole time revising boards for selection of

prisoners for mature release,iii

ii) Revision of jail manual with greater responsibility on the

superintendent and staff members for constructive
programmes for prisoners, 112

iii) Superior staff of a jail to have training for their work, 11^

106 Ibid.
107 Ibid.
108 Ibid.
109 Ibid.
110 Ibid.
111 Ibid.
112 Ibid.
113 Ibid.
 68

iv) The larger states should develop integrated departments of

correctional administration under on minister, including
jails, Borstools, Revising Boards, and Probation and after
care, 11'*

v) Professional individualized services and handling of the

prisoners by specialists like supervision of education,
vocational guide, recreation officer, clinical psychologists,
therapeutic psychiatrist etc.,ii5

vi) Special institution for training^ ^^

vii) The reformative methods of probation and parole should be

used to lessen the burden on prisons. ^^'^

viii) Classification of prisoners for the purpose of their

treatment were necessary, i is

Almost at the same time the Government of India called a

Conference (eighth) of the Inspector General of Prisons at Bombay
from ll^h to 1 3 * March 1952. On the recommendations of that
Conference the Government of India asked the Government of
Bombay to set u p a Committee and take u p the revision of Jail
Manual and the Central Act relating to prisons. The Committee
took its first meeting in J u n e 1957 at Bombay followed by twelve
other sittings and visits to twenty eight correctional institutions.
The Committee prepared a Model Prison Manual and its report,
which was circulated to all the State Governments, but till 1980

114 Ibid.
115 Ibid.
116 Ibid.
117 Ibid.
118 Ibid.
 69

only four States, namely Andhra Pradesh, Kamataka, Kerala and

Maharashtra had revised then Jail Manual in accordance with the
Model Prison Manual. However, the Government of India
established a Central Bureau of Correctional Services in 1961. The
Chief objective of this institution is to impart training and promote
research studies in the area of prevention of crimes and treatment
of prisoners.'19 Even after it the reformative measures listed here,
the general condition of prisons in India was still far from
satisfaction. The social contempt for prison life kept all sections of
society uninformed about what was going on inside the prison
cells. From time to time media and press highlights the empirical
relations of prison life and public opinion seems little concerned
about modernization of prison.'^o

The Government of India constituted a working group in

1972 to examine measures for streamlining and improving the jail
administration and conditions of living in the prisons. The working
group observed:-

"The Prison administration in the country is generally

in a depressing state, convicts and under trials are
lodge in the same institutions throughout the country.
Adults, adolescents, juveniles, women and lunatics are
also generally confined in common institutions and
there is a serious lack of separate institutions for these
various categories of prisoners. Partly due to the fact
that service of specialists has not been mobilized, we
do not find any evidence of any effort for the
individualized treatment of offender. Probation and

119 Datir, R. N., Prison as Social System, 1978, p. 6 1 .

120 Paranjape, N. V., Criminology and Penology, 2003, p. 282.
 70

other correctional services are scarce and ineffective.

There is little co-ordination between the prison and
correctional services. It is obvious that the entire
system calls for a thorough overhaul and many
reforms." ^21

The group also emphasized the need of a National Policy on

Prisons. It also suggested the inclusion of prison administration in
the Five year plan and amendment of the Indian Constitution to
include the subject of prisons and allied institutions in the
concurrent list. 122 The seventh finance commission in its report in
1978 acknowledged the facts that jails had been neglected far too
long.

With this background and large scale criticism of the prison

administration, due to inhuman treatment of the prison personnel
and unsatisfactory living conditions and prolonged detention of
under trial prisoner the Government of India appointed an "All
India Committee on Jail Reforms in 1980 with Mr. Justice (Retired)
A. N. Mulla as Chairman. The Committee in 1983 submitted a 511
pages report to the Government of India, with a strong
recommendation of a National Policy in Prisons. 123

The Committee made the suggestions that the existing

dichotomy of prison administration of Union and State level should
be removed. It recommended a total ban on the heinous practice of
clubbing together juvenile offenders with the hardened criminals in
prison. The atrocities and personal assaults on juvenile prisoners

121 Report of the Working Group on Prisons in the Country 1972-73,

Government of India, p. iv
122 Id., p. 29
123 All India Jail Committee Report 1983
 71

which came to the notice of authorities in the notorious Tihar Jail

Inmate case and the Agra Protective Home Case have served as an
eye opener for the administration 124. Consequently, a
comprehensive legislation was enacted for the security and
protective care of delinquent juveniles, ^^s The Mulla committee also
recommended segregation of mentally disturbed prisoners and
their placement in mental asylums.

Yet another recommendation of the Jail committee was

regarding classification of prisoners and scientific and rational
basis. For this purpose, certain advanced countries have appointed
Ombudsman for deciding the prisoner's grievances. Similar
procedure may be adopted in India as well. Some other
recommendations of the Mulla Jail Committee were as follows:-

1. The condition of prisons should be improved by

making adequate arrangements for food, clothing,
sanitation, ventilation etc.

2. The prison staff should be properly trained and

organized into different cadres. It would be advisable
to constitute an All India Service called the Indian
Prisons and correctional service for recruitment of
Prison officials.

3. Aftercare, rehabilitation and probation should

constitute an integral part of prison service.
Unfortunately, probation law is not being properly
implemented in the country.

124 Paranjpae, N. V., Criminology and Penology, 2003, p. 283

125 The Juvenile Justice Act, 1986.
 72

4. The media and public men should be allowed to visit

prisons and allied institutions periodically so that
public may have first hand information about
conditions inside prisons and be willing to cooperate
with prison officials in rehabilitation work.

5. Lodging of under trial in jail should be reduced to bare

minimum and they should be kept separate from the
convicted prisoners. Since under trials constitute a
sizable portion of prison population, their number can
be reduced by speedy trials and liberalization of bail
provisions.

6. The Government should make an endeavor to provide

adequate resources and funds for prison reforms.

Meanwhile, the eighth finance commission submitted as

report in 1984, which recommended support central assistance for
improvement of existing infrastructure of the prisons. 126

In the year 1988, the National expert committee on women

prisoner headed by Justice V. R. Krishna Iyer in its report
submitted to the Government in February 1988, recommended
induction of more women in the police force in view special rule in
tackling women and child offenders. Envisaging a for greater
significant and useful rule of women police in context of changing
needs of society, the Committee observed that women police have a
greater potential to cool, defuse and de-escalate many situations
and therefore, greater use should be made of them. Women can be
employed in non-combative rules requiring restraint, patience and

126 Report of the Eighth Finance Commission, pp 77-78

 73

endurance. The women police should be an integral part of the

police set up, with a special role in juvenile crime squads especially
in urban areas. They should be specially trained to deal with
agitations and mob upsurges in humane and sensitive manner and
acquire mastery over tactics of unarmed combat. ^27

Thereafter, the National Human Rights Commission

(N.H.R.C) after acquainted with problem of prisoners in the prisons
in India in general took initiation to formulate a national prison
law by consolidating the existing prisons law framed during British
Period more than two hundred years back, A Draft Bill (Indian
Prisons Bill, 1995- proposed) was circulated to all the state
governments in India during February 1996 regarding formulation
of comprehensive law in prisons.i^s The N.H.R.C h a s submitted its
recommendation Bill for adoption by the Government of India
which is still under consideration of the Law Ministry.

It is notable here that the West Bengal Legislative Assembly

already passed "the West Bengal Correctional Service Act, 1992",
the first of its kind in India characterizing prison administration as
correctional services accepting reformation of prisoner as the
objective of prison law. No other state yet passed such legislation
till now.

127 Paranjapee, N. V., Criminology and Penology, 2003, pp. 283-84

128 National Human Rights Commission, Circulation letter dated 23f«' Feb.
1996.