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Contradictions of The Penal System and ‘Pains of Imprisonment’: New
Evidence from India
Author(s)
Posted
Baljeet Kaur
Mitigation Investigator, Project
39A
18 January 2022
Time to read
4 Minutes
[i]
The legal theorist Alan Norrie argues that the modern justice system is crumbling because even its [rst principles consist of contradictions.
Should the state have powers to prosecute, avenge and punish its citizens or should it ‘treat’ and reform them? Is prison an instrument for the
inaiction of pain or is it an institution for the provision of therapeutic rehabilitation? Because of this fundamental dichotomy, a complex but
real phenomenon of ‘pains of imprisonment’ has remained unattended to. The concept of ‘pains of imprisonment’, [rst proposed by Gresham
Sykes in 1958, facilitates an understanding of the deprivations and psychological pains of incarceration, as opposed to the physical pain that
[ii]
prisoners may go through. Contextualising these pains to the unique situation of a life on death row, a recent report titled Deathworthy - A
Mental Health Perspective of the Death Penalty – an empirical study on the mental health of death row prisoners conducted by Project 39A,
National Law University Delhi – discusses the ‘pains of death row’ based on interviews conducted with death row prisoners across [ve states in
India. The report brings forward evidence of the painful and psychologically distressing experiences of prisoners on death row. This article
discusses some of this evidence vis à vis the law and practices governing prisoners on death row, to show the many contradictions which exist
within India’s penal system.
Logo from 'Deathworthy' report by Project 39A
The law as it stands af[rms that prisoners, like all individuals,
[iii]
deserve to be treated with dignity. This dignity is meant to be
extended to death row prisoners as well. In perhaps a
manifestation of this recognition of dignity, the death sentencing
framework presumes that death row prisoners can be reformed
[iv]
and requires the state to furnish evidence towards the same,
thus implying that the prison system will provide opportunities
to such prisoners to undertake a journey of reaection and
productive engagement. But in contradistinction, the rules of
conduct in Indian prison manuals, which govern the day-to-day
functioning of both those following these rules and those
imposing them, by design infringe on the dignity of death row
prisoners and also treat them harshly, with limited to no
opportunities to engage themselves in any reform activity. For
example, as noted by Deathworthy, prison rules mandate the
beginning of the day at 4am and dinner by 4pm, forcing
prisoners to limit their engagement with other prisoners and
‘save’ their food for later, only to eat a cold and spoiled meal.
Construction of toilets within the tiny cells or crowded barracks
of the prison leave no semblance of privacy. An emphatic look
into prison life, as revealed in the report, sheds light on such
conditions considered as ‘regular and expected features’ of a
prison. Control over oneself is a basic human need. But the submission necessitated by the prison system, under the halo of humanizing the
prisoner, actually leads to their dehumanization – in contradiction of the Supreme Court mandate to protect dignity and pave the way for
reformation.
[v]
Furthermore, despite being prohibited in law, prison manual rules state that death row prisoners be separated immediately upon being
sentenced to death. In practice, many death row prisoners are housed in solitary cells, often resulting in a kind of psychosis. The prison manual
rules also require that such prisoners be additionally guarded 24/7 and their cells searched thoroughly every day. These rules allow the
prevalence of an attitude on the part of the prison administration which actively or subconsciously views death row prisoners as a separate
lowly class. In Deathworthy, prisoners share how at night guards rattle locks, and the aashing hot light bulbs are not switched off, depriving
them of sleep. The vulnerable status of death row prisoners also makes them a target of violence at the hands of other inmates as well. They
bear exclusion from the prison ‘community’ and are discriminated against, including being subject to limits on their access to prison facilities.
[vi]
Despite the law, death row prisoners are not allowed to work in prison and their access to libraries, newspapers and education is severely
restricted. The treatment inaicted upon prisoners controls every aspect of their lives: from their sleep to their desires to become a better
person. The report identi[es that forcible restrictions of freedom and liberties can be psychologically and physically alienating for prisoners. In
addition, ‘micro-humiliations’ that are inaicted upon death row prisoners – such as being referred to as phansi wala (‘the one who will be
hanged’) or being the subject of other inmates’ voyeuristic gaze as an ‘exhibit’ – force them to give up their personal autonomy and lose their
sense of worth.
The experience of stigma also infringes upon prisoners’ already limited contact with family, as prison authorities scrutinize their family
backgrounds and family members can be subject to societal shaming for maintaining contact with a condemned prisoner. Some may argue
that these deprivations are unintended or even justi[ed. But the evidence as presented by Deathworthy reveals how death row prisoners live a
life of trauma whereby emotions such as sadness, fear, anxiety, numbness, hopelessness, frustration, shame, regret and preference of death
govern their lives. Prisoners on death row face vili[cation in the media and general public; the pain caused by their imprisonment and death
sentence remains absent in the public narrative. From the shock of the day when they were told in no uncertain terms that they would be
hanged until death, to everyday thereafter for many years spent in the uncertainty of life and death, prisoners on death row suffer daily, with
their mental and emotional agony unacknowledged and delegitimized. Deathworthy reports instances of prisoners fainting, going numb or
crying profusely when they are sentenced to death, and due to their powerlessness in the face of a life with death hanging over their head
every day.
When the experiences of death row prisoners and practices of prison administration are read along with the Supreme Court’s requirement to
assess probability of reform and its mandate to protect the dignity of death row prisoners, we see a penal system which does not have a clear
understanding of what its prisons are meant to achieve and consequently how to treat prisoners. It is not enough to release a Model Prison
[vii]
Manual with the stated aim of imprisonment being reform of prisoners when the attitude of prison administration continues to inaict
condemnation instead. The evidence of the extent of the pains of imprisonment as collected by Deathworthy speaks to the root of the problem:
that, as argued by Norrie, there are fundamental contradictions in our imagination of citizen, state, punishment and the prison system.
Baljeet Kaur is a mitigation investigator with Project 39A, National Law University Delhi. All views expressed are personal. The 'Deathworthy - A
Mental Health Perspective of the Death Penalty' report can be read in full here.
[i]
Alan Norrie, Law, Ideology and Punishment (Kluwer 1991).
[ii]
For details see Victor Shammas, ‘Pains of Imprisonment’ in Kent Kerley (ed), The Encyclopedia of Corrections (Wiley 2017).
[iii]
Re-Inhuman Conditions In 1382 (2016) Writ Petition (Civil) No 406 of 2013 (Supreme Court of India).
[iv]
Bachan Singh v State of Punjab (1980) 2 SCC 684 (Supreme Court of India).
[v]
Sunil Batra etc v Delhi Administration and others (1978) AIR 1675 (Supreme Court of India).
[vi]
Re-Inhuman Conditions in 1382 vs State of Assam (2018) IA No 26542 of 2018 in Writ Petition (Civil) No 406 of 2013 (Supreme Court of India).
[vii]
For details see Chapter 1 of Model Prison Manual 2016, Bureau of Police Research and Development, Ministry of Home Affairs, Government
of India, New Delhi.
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