The revolutionary leader Nelson Mandela once said, “No one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”
In this two-part series focusing on prison reforms and accessible mental healthcare in Indian prisons, the author attempts to draw the readers’ attention to the notion of prison as centres for punishment and its history, the evolution of punishment according to the French philosopher Foucault’s theories, the legal regime governing mental healthcare in India alongside important judgments, followed by some recommendations to make mental health from the context of reform and human rights more accessible to the prisoners. The articles have been written with insights from Ms Shaifila Ladhani, a practicing clinical psychologist with a master’s degree from Ambedkar University, Delhi.
The modern-day Indian criminal justice system derives heavy influence from the 19th century British colonial jurisprudence, which makes its relevance debatable today. Inefficacy, pendency and caste-class disparities, among others, continue to prevail which not only makes it harder to seek justice but also administer it. Needless to add, now more than ever, there is a pressing need to bring into light laws that prevent a crime from taking place than focusing on punitive actions.
A brief look at older practices tells us that one way of preventing a crime from happening was to confine a person in rooms that later came to be known as prisons. Originally created for the purpose of keeping the perpetrator of a crime detained until they could be punished, the idea of a prison got later convoluted as a centre for punishment as we know today.
What should have originally been reform centres and correctional facilities – given the lack of infrastructure – prisons established themselves as institutions of punishments, that accommodate millions around the world today. In India alone, over 4.7 million people occupy the appalling walls of prisons, leading the troubled-inmate lives. In addition to this, what is more harrowing is that Indian prisons are overcrowded, understaffed, underfunded and overburdened, which further exacerbates the already persisting problem. Although penalties and punishments are generally viewed as deterrents to crime, the crime rates continue to shoot up regardless.
Prison History and Evolution
Michel Foucault, a French philosopher, argues that codes of “justice” are always biased because they represent and materially enact social power. Prior to the 18th century, punishment was something that was directed at the physical human body which would further deter the wrongdoer from engaging in criminal acts. Violence, torture, mutilations and executions were, according to Foucault, a public spectacle aimed at teaching a lesson and discipling, therefore preventing the happening of crime. However, with the advent of the 18th century, groups around the world, especially the French reformists began to evaluate the accidental consequences (riots and brawls to name a few) of these violent and often physical punishments. And in keeping with the aspect of acceptable practices and public welfare in the centre, less acute and violent punishments became desirable. It was not the welfare of criminals that concerned them, but social control.
Over time, while efforts have been made to curb problems relating to the procedural and judicial aspects of prison reforms, the mental wellbeing of inmates continues to remain one of the most neglected aspects even today. As a socio-cultural phenomenon, prisoners or people accused of offences awaiting trial, are viewed as outcasts making it easier to ignore their plight. Social stigma serves as a double whammy as former prisoners find the going tough with nobody willing to give them jobs or hire them.
The economically weak and poor sections are the most affected by the shortcomings of our criminal justice system which is inarguably skewed against the poor, thus the name ‘anti-poor’. The system is alleged to cater only to the need of the rich and well of. Being held as prisoners can be extremely antagonizing or traumatic and more often than not, poor persons are victims of such painful ramifications of a less-thought-of criminal justice system.
It is pertinent to note that while prisons are expected to miraculously ‘reform’ a person, they significantly contribute to worsening the mental health and wellbeing of prisoners. In an extensive study on Psychiatric Morbidity in Prisoners, researchers Kumar and Daria noted that ‘The level of confinement and isolation experienced by some prisoners is detrimental to mental health and people with a pre-existing psychiatric disorder deteriorate and others who are vulnerable can become psychiatric patients.’
Mental Health as a Human Right
Here, the taxing question that forces us to delve deeper, both as an individual and as a collective and ever-growing civilization is: Do prisoners deserve mental healthcare? If yes, then how do we make that possible?
In the international context, the United Nations’ Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Healthcare act as a guiding light to help understand mental health from a human right’s lens. Principle 20 relates primarily to criminal offenders and explicitly states that such persons are equally as entitled to receiving mental healthcare as any other good citizen of the global world. Instrumental not only for the specificity of its provisions, this statement of 1991 is also acclaimed for its recognition of the need to protect the rights of persons with enduring mental illness and disorders – especially the ones whose rights were brutally ignored in the past. Later in 1996, the World Health Organization, in keeping with this line of thought introduced ten key principles further laying emphasis on the principles that were enshrined in the 1991 statement. Some of these principles include access to basic mental health care, the mandate of free consent, establishment of review procedures and mental health assessments amongst others.
Understanding Mental Health in the Indian Context
The understanding of mental health in the Indian frame of reference has been excessively narrow to say the least. For one, the junction of mental health and illness appears on the surface expressly only when an insanity defence is taken concerning the accused’s fitness to stand trial. Section 84 of the Indian Penal Code, 1860 provides that nothing is an offence that is committed by a person of ‘unsound mind’, and while the concepts of unsound mind and mental illness may be related, they are not the same. What is more worrisome is that many mental health conditions like personality disorders do not have apparent symptoms which makes it harder to prove if a person is mentally fit to undergo legal proceedings or even be kept in custody with special care.
It is pertinent to note that while power has been delegated to authorities across geographies and hierarchy, the facilitation of the criminal justice system is carried out by the police, the courts and lastly, the prisons. As opposed to the United Nations recommended 222 police officers per 100,000 citizens, India operates at a dangerously low ratio of 144 officers for a population of 100,000 citizens. Additionally, a cumulative backlog of over 3.5 crore cases persists in Indian courts at all levels.
According to the 2019 report of National Crime Record Bureau on Prison Statistics, there are about 1350 prisons in India with an occupancy rate of 118.5%. Out of 4,78,600 prisoners confined in these jails, a whopping 69.05% are undertrial prisoners, and only 30.11% of these occupants are convicted prisoners. What’s more worrying is that of all the undertrial prisoners, over a quarter of them had been behind the bars for over a year.
Apart from these deplorable statistics, what’s more worrying is the socio-cultural aspects of the society affecting the mindset of these inmates. Prisoners form a part of the more vulnerable population forming a heterogenous group from diverse social and economically disadvantageous backgrounds. Not only are prisoners devoid of any sense of autonomy or freedom, they are also deprived and often neglected in terms of provision of care and upkeep by authority and instead become victims of abuse, violence and sexual assault within the prison (that is hardly ever reported), isolation from family and community, loss of livelihood, ineffective healthcare and a humongous failure of the justice delivery mechanism.
The scope of abuse and exploitation widens when persons enduring mental illness (especially the ones whose symptoms aren’t apparent) are housed with other inmates. A possibility of violent physical responses combined with what may be termed as ‘bad behaviour’ is far more likely when there is a lack of access to proper mental healthcare.
That said, today more than ever there’s a serious need to re-evaluate and deepen our understanding of mental healthcare and how it can be made accessible to inmates inhabiting in the prison walls. In the next segment of this two-part series, the author will shed some light on the legal regime governing mental health in India, some important case laws and reforms and recommendations to make its accessibility more feasible and convenient.
Need for Reforms and Recommendations
Mental health is an extremely crucial and delicate part of our lives that requires deep scrutiny and regular monitoring. Prisoners, especially undertrial prisoners, are seen to be adversely affected given the lack of certainty. The percentage of mental health professionals equipped to care for and provide treatment to persons with mental illness is harrowingly low. India has about 9000 psychiatrists for a population of over 1.3 billion. Add to that the plummeting state of our prisons that not only lack the physical infrastructure to provide basic mental healthcare but instead, endorse the brutal treatment of these inmates.
Suicide continues to remain the most prominent cause of unnatural deaths within prisons. Looking at the far-reaching consequences, prisoners often come out of prison feeling angrier, spiteful and dejected – basically looking to seek revenge. Provision of psychotherapy and counselling during their imprisonment will not only help them make peace with their situation but will also provide a clearer view of things, allowing their mental health to stabilise and become less volatile. There is also an urgent need to fill the vacancies and adequately staff prisons. It is imperative that we craft reforms taking into account the terrifying unemployment rates that have increased in the wake of the COVID 19 pandemic. The need to sensitize police officials and personnel in dealing with persons with mental illness – the ones whose symptoms may not be apparent is another significant aspect we need to work upon.
Persons entering prisons can experience heavy trauma and sudden change in state of mind, which is why it is recommended to the jail personnel to help such persons first get into the routine and lifestyle of living in a prison as an inmate which will not only help them familiarise with the prison life but also help them cope better. Likewise, exposure to the outside world after having spent long periods within the confines of the prisons can get inexplicably overwhelming, which is why it is recommended that the prison staff empowers prisons due to be released to access and sustain livelihood. Specialized knowledge, accessibility to treatment and effective empathy along with community care will certainly improve the conditions of mentally ill prisoners and make mental healthcare more accessible within Indian prisons.
Title Image source: Research digest
This article has been written by Rakshika Aphale. Rakshika is pursuing BBA.LL.B. (Hons.) from Amity Law School, AUMP.