Introduction: Judicial Abandonment of Prisoners & Police Sadism

In Hobbesian sense, the state plays the role of Leviathan, a monster that controls smaller monsters, i.e., the citizens. As it happens, Indian Law Enforcement Agencies seem to have taken the epistemology of Hobbes by its literal sense rather than its intended metaphorical usage and have played the role of Leviathan in numerous instances. Sunil Batra, a prisoner for life, was made to go through solitary confinement by the jail authorities for a period of 2 years, straight.[i] The mental trauma that this man must have withstood, is beyond imagination. The fate of this man was cruelly decided when the police authorities decided to transgress the court order and play the Devil’s Advocate. Innumerable such instances of contravention have come to light and many still remain under covers of police incompetence. Custodial torture not only raises the question of contempt of court but also that of ethical double jeopardy. First, the punishment by a court of law and then, the harassment by Jail officials is suffering doubly for the same crime; while the constitution of India clearly states against such a cruel practice.

The very reason why it’s the judiciary that convicts criminals, not the police, is to prevent the descending of India into a police state as, the Indian law believes in deterrence, reform, and rehabilitation of criminals. Justice V.R. Krishna Iyer once said, “custodial torture is worse than terrorism because the authority of the state is behind it.”

The reason behind the apathetic treatment of criminals is because, the Indian legal system tends to completely abandon the prisoners after incarceration, leaving them completely at the will of the prison officers. Truth be told, other than a few international treaties that hold no obligation over the state, no particular law is in place to secure a safe-space for prisoners after incarceration. Though the Prisoners Act of 1894 and 1990, etc, do have provisions for their stay in prisons but nothing about the rights that they can legally exercise even after getting convicted. The Supreme Court has tried to fill in for this discrepancy by pointing to the idea that a prisoner is a ‘person’ inside a prison and therefore, all the fundamental rights shall apply to him, (Except for the ones denied as deemed justifiable under the rule of law). The lack of legislation and systematic scrutiny and judicial abandonment are loopholes that these egregious police officers exploit in order to establish their sense of supremacy over the inmates and exploit the system while completely undermining the fact that at the end of the day, inmates aren’t lesser beings than themselves.

Multifarious Manifestations of Inmate Endangerment in Indian Prisons

Indian Criminal Law system, in all its archaic passivity, is a true embodiment of everything that went wrong with the highly glorified classical liberal concept of Retributive Justice. Though the idea of retributive justice was introduced to undo the injustice served through medieval torture-based penal systems by following an idea of proportionality of punishment, but over the last century, the emphasis of criminal justice was to ‘treat’ the offender with solitariness, work, or behavioural sciences in order for that individual to learn the error of his ways and be readmitted into the mainstream society[ii] and the idea of rehabilitation was completely lost in this conundrum.

In Indian prisons, the state of disenfranchisement of inmates is such, that even the prison walls are treated with greater respect than the inmates. Such dehumanization of individuals bestows a sense of ascendancy within the prison guards who constantly look down upon these inmates. This, in turn, enables the perpetration of violent crimes against the prisoners by the prison authorities that includes, but isn’t limited to, unconstitutional forms of handling, flogging, inducing sleep apnoea, waterboarding, etc. In the landmark judgement of D.K. Basu v. State of West Bengal, the Supreme Court opined that such transgressions of law on the part of the authorities are a blow to the Rule of Law. The Court observed that despite the presence of several Constitutional and Statutory provisions aimed at safeguarding the personal liberty and life of a citizen, there had been several instances of torture in police custody which was a disturbing factor.

However, it should not be assumed that custodial deaths and brutality are the only issues to plague the Indian prisons. In a survey conducted in 2011 at the Parappanna Agrahara prison of Bengaluru, it was discovered that out of 721 inmates, around 61.3% tested positive for the usage of drugs like benzodiazepines and barbiturates. It is observed that prisoners take up to drugs as redemption from the trauma faced in prison. Those who don’t turn to drugs, are forced to join ‘gangs’ in order to ascertain a level of safety against dangerous convicts and from getting targeted by prison guards. In states of Uttar Pradesh and Bihar, notorious gangs have been monitored to be operating within the jails. In Patna, almost every major crime is linked to the ganglords lodged in Beur jail. In February 2011, undertrial Bablu Mishra, accused of selling spurious liquor, was beaten to death in Bihar’s Nawada jail at the behest of the powerful liquor mafia, which feared that Mishra would spill the beans. Seeing hardened criminals turning the prisons into maniacal zoos with policemen treating the inmates a tiny bit better than vermin, the mental health of inmates take a hit. This results in the inmates trying to commit acts of self-harm, the rates of which are beyond the charts, to say the least.

Legalities of Prisoner Safety and the Road Forward

The greatest restraint on the authoritative violence against the person of an individual is rendered by the United Nations Declaration of Human Rights, the Article 1 and 3 of which, stand for the securing of the dignity of rights to life and liberty of individuals. On the lines of similar egalitarian jurisprudence, certain fundamental rights mentioned under the Constitution of India are applicable in case of prisoners that include Articles 20, 21 and 22, and act as roadblocks against over-stepping of bestowed authority. Especially, Article 21 provides that no person shall be deprived of life or personal liberty except according to the procedure established by law and acts as an umbrella legislation by essentially deeming police brutality as an extra-judicial act violative of the rights of the inmates.

In the case of Charles  Shobroj v Superintendent  Central  Jail,  Tihar, Supreme court recognized that right to life is more than mere animal existence or vegetable substance.[iii] In similar other judgements, the court has interpreted the Right to Personal Liberty in a progressive sense, thus including the Right against torture, Right to Legal Aid, Right to Speedy Trial, etc under its ambit.

 Supreme Court in many instances made it clear that the prison treatments should not be caused any kind of torturous effect over the inmates.[iv]  Even the practice of the separate confinement and the solitary confinement was deeply discouraged by courts in many instances. Rather, the Supreme Court propounds the idea that extensive education and socialization systems need to be mobilised within the prisons in order for the time spent in prisons to be of any reformative value.

Recently, in extensive studies conducted by federal agencies in the US, on the issue of ill-treatment of inmates within prisons, it was observed that prisoners who often get targeted by guards and wardens also have the most violent crime records. So, a modern system of prison reformation tries to identify those inmates who have had a troubled social background or are school dropouts and then these prisoners are taught a new curriculum of studies that tries to rebuild their character from scratch and includes courses on vocational activities as well as self-help programmes. Such reformations need to be effectively carried out in Indian prisons as well, in order to completely mitigate any chance of brutality upon the inmates.

Redressal of custodial brutality related crimes can be made through a two-fold approach to the same. An immediate response should involve the filing of a writ petition in order to get a mandamus order against the officer for acting beyond the ambit of his office, in a contempt of the order of court. The next step should be a long-term approach towards reforming the prison system that would include the drafting of a policy regulation to decide upon the mode of handling of inmates throughout their period in the prison. Secondly, guards and prison wardens need to be trained regarding appropriate handling measures and should be made aware of the charges that can be piled up against them if they do act beyond their jurisdiction. Accountability of prison authorities for their violent acts, is the very first step towards a transparent and humanitarian prison system.

Concluding Remarks

Let Draco be remembered as the long-gone perpetrator of Draconian laws, not the Indian Criminal Justice system. The authorities need to acknowledge the fact that the justice system has blatantly failed in securing the fundamental rights of the prison inmates and make amicable changes to it. The application of the retributive methods portrays the misuse of authority by the enforcers of law and the contempt of the judicial system. Biblically speaking, penal torture is akin to God showering flaming embers on humankind, thus the system of deterrent and reformative sentences should be followed by the criminal justice system in a truly libertarian sense that secures the human rights of the incarcerated.


[i] Batra, S., v. Delhi Administration, AIR 1978 SC 1675. Cri LJ, 1741.

[ii] Lisa L. Miller, ’Looking for Postmodernism in All the Wrong Places: Implementing a New Penology’, 41(1) TBJC, Oxford University Press 168-184 (2001).

[iii] Priyadarshi Nagda,’A socio-legal study of prison system and is reforms in India’, 3(4) IJL 51(2017).

[iv] Id.


About the Author: Jasmine [2019-24] & Monalisa [2019-24] are undergraduate students at Rajiv Gandhi National University of Law, Punjab.


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