Why India's Jail System Sets Lifers Up For Failure

The sentence review board of India’s most prominent prison disregards reform rules and court decisions while recommending or rejecting convicts serving life sentences for premature release. Our analysis of the board’s reviews of 638 cases and interviews with prisoners reveals overemphasis on crime, moral judgements and traumatised prisoners.


KARAN TRIPATHI

Tihar Jail.

New Delhi: A former retail supplier, Hussain Shaikh, 40, now working two shifts as a delivery man for a departmental store to save up money for law school, spent 16 years in Delhi’s Mandoli Jail as a life convict for murder. In March 2020, his application for premature release from prison was finally accepted.


Shaikh believes training in law can help him “rescue” underprivileged prisoners who need help navigating a web of procedures designed to “set them up for failure” when they apply for premature release under the Delhi Prison Rules, 2018.


In interviews over the telephone to Article 14 after his release, Shaikh spoke about his experience of “surviving” the premature release application process at the Mandoli jail, which is among the 16 jails that make up Delhi’s Tihar prison complex. He said that while he was able to manoeuvre through the complex process, many others “stumble” and remain incarcerated.


Shaikh’s narrative clearly illustrates an Article 14 statistical analysis of 638 applications by life convicts in the Tihar prison complex for premature release that were decided by the Sentence Review Board, a body that recommends or rejects these applications.


We analysed the board’s decisions over the four meetings held on 5 August 2020, 11 May 2020, 28 February 2020, and 19 September 2019. Of the 638 cases considered at these meetings, 464 cases (72.7%) were rejected for premature release.

As many as 246 rejections, or more than half, were made solely on the ground of the nature of the crime, revealing an overwhelming disregard for established guidelines and jurisprudence (here, here and here) on assessing life convicts for premature release.


The Law, Seldom Followed

Prisoners serving a life sentence in Delhi’s Tihar prison complex can be considered for premature release after completing at least 14 years of imprisonment.


However, for prisoners convicted in cases of murder with rape, murder with dacoity, murder involving an offence under the Protection of Civil Rights Act, 1955, murder for dowry, murder of a child below 14 years of age, multiple murders, murder committed after conviction while inside the jail, murder committed during parole or furlough, murder in a terrorist incident, murder in a smuggling operation, murder of a public servant on duty, murder committed with premeditation and with exceptional violence or perversity, and for convicts whose death sentence has been commuted to life imprisonment, this minimum sentence requirement in Tihar is 20 years of actual imprisonment.


While the final decision on granting premature release lies with the lieutenant governor of Delhi, it is the responsibility of the Sentence Review Board to recommend or reject prisoners for this benefit.

The Board comprises eight members: the minister in charge of prisons, principal secretary (home), principal secretary (law and justice), a district judge, inspector general (prisons), director of the social welfare department and the commissioner of Delhi police.


The Delhi Prison Rules, 2018, mandate a “balanced approach” towards assessing life convicts for premature release, with the objective of reforming offenders, in order to rehabilitate them and integrate them in society while also ensuring protection of society from criminal activities.


According to Rule 1251 of the Delhi Prison Rules, the Sentence Review Board must consider if the convict has “lost his potential for committing a crime”, the possibility of “reclaiming” the convict as a useful member of society, and the socio-economic conditions of the convict’s family.

Judgments from the Delhi High Court and the Supreme Court have both time and again hailed this “balanced” approach by holding that the Board must give adequate consideration to both risk and rehabilitation, and rejections purely on the basis of the convict’s crime or ‘public interest’ are bad in law.


The courts have held that the Sentence Review Board’s deviation from this prescribed “balanced approach” amounts to “whimsical” or “capricious” decision-making, and is a violation of the constitutional rights of the prisoners.


While holding that the idea of premature release is founded upon the principles of amnesty and remission of sentence, the welfare of the prisoner can’t be ignored, said the Delhi High Court, in the case of murder convict Sushil Kumar Sharma’s plea against the rejection of his application for early release.


So, the Board must “exercise its recommendatory function strictly in accordance with the binding principles enunciated in the guidelines, from where their discretion emanates”, according to the Delhi High Court’s December 2018 order.


Despite rules, guidelines, and judicial pronouncements, decisions by the Sentence Review Board of Tihar prison have disregarded the “balanced approach”. Our analysis of the Board’s dossiers reveals that in 52% of the rejected cases, a convict was rejected solely on the basis of the crime he had been convicted of.


The remaining rejections were based on additional factors such as “previous criminal history”, or “unsatisfactory jail conduct”. In none of the rejections did the Board consider factors suggesting reformation, socio-economic conditions, or family responsibilities.


“It’s a hollow system, highly prejudiced against the convict,” Sunil Gupta, former law officer at Delhi’s Tihar Jail, told Article 14. “Despite the many judgments of the Supreme Court, the Board just focuses on the nature of the crime. They simply brush the reformation and socio-economic condition of the convict’s family under the carpet, and just mechanically reject their plea on the basis of the nature of the crime.”


In meetings held on 11 May and 28 February, 2020, a quarter of the rejected applications for early release were issued without even having the report of the probation officer on record, relying solely on police reports. This neglect of probation officers’ reports is not just a violation of established rules but is also evidence that policing narratives are a dominant influence on the Board’s decisions.

Across India, the subject of life convicts’ premature release is fraught with arbitrary decision-making.

On 17 November, 2020, the Bombay High Court pulled up Goa’s Sentence Review Board for denying premature release to a life convict solely on the basis of his crime. On 21 August, 2020, while ordering the release of a 79-year-old man who had spent 29 years and 10 months in prison, the Supreme Court set aside the decision of the Uttar Pradesh’s Sentence Review Board that had rejected his premature release application without considering his reformation.


In Uttarakhand, the state’s High Court, directing the state government to file a report in a plea regarding the absence of any policy for premature release of convicts, the court remarked: “The entire set-up of the prison department needs to be reformed and resurrected.”


Labelling Of Life Convicts As ‘Dangerous’

In the Tihar cases we analysed, the Board’s decisions are often accompanied by a moral condemnation of the convict’s crime, though its prescribed role is strictly administrative in nature.


This is particularly evident in terror offences and child sexual offences, where rejections are served with such commentary. In a decision pertaining to a man in his late thirties convicted of raping a minor girl, the rejection notice said, “The release of the convict will send a wrong message to the society.” About a 42-year-old convict serving a life sentence for kidnapping and raping a minor girl, the board said in 2019: “It can’t be believed that the offender has lost all propensity to commit the crime.”


Other rejections have said the convict has shown “no remorse for the offence”. Rejecting a claim by a man convicted of murdering a minor boy, the board mentioned the “inhumane manner in which the convict murdered a 14-year-old boy”.


The board continues to pass these orders despite the Supreme Court stating categorically in Munna Vs. State of Uttar Pradesh and Satish Vs. State of Uttar Pradesh that the sole reason for refusing to allow premature release must not be “gravity of the original crime” or the “wrong message to the society” from such a release.


The labels of ‘too dangerous to release’, ‘carries potency to reoffend’, and ‘extreme perversity of crime’ are overemphasised risk factors, as risk assessment is arbitrary and unscientific and fails to consider mitigating evidence.

In addition, such labels also adversely impact convicts’ strategies to manage their sentences, jeopardising their chances at subsequent meetings of the board.


In our assessment of Tihar’s life convicts’ applications, 101 convicts sentenced for child sexual offences or terror offences whose claims for premature release were rejected solely on account of the nature of their crimes were rejected on the same ground in the three subsequent board meetings.


Such decisions by the Sentence Review Board aggravate convicts’ psychological pain and shrink their identity to the crime alone.


Describing the “hopelessness” engendered by such a rejection, a prisoner convicted of a child sexual offence told Article 14: “They just want to see me as a monster, nothing else. I spent 15 years in jail, completed my college degree, did voluntary work, and have no punishment ticket… but I still got rejected three times.”


A punishment ticket is a disciplinary action against a prisoner for violating a prison rule. The man said he felt helpless. “... there’s no point in even trying, they’ll still just look at my crime.”


Sunil Gupta called this mechanical rejection of premature release claims a “second sentencing”. In focusing only on the perversity of the crime, the Board ends up convicting him one more time, for the same offence. “This is unconstitutional,” Gupta told Article 14.


Setting Up Lifers For Failure

Convicts who have participated in what they call the “SRB process” believe the system “sets up prisoners for failure”. They feel that they have no say in the process.

The board typically has two hours to evaluate about 700-800 applications, said one convict who has attended nine such meetings in the capacity of a scribe appointed to document the minutes.


"They hardly look at all the cases carefully, some cases they reject in a few seconds… They have no idea of the rules, they just do what they feel like. I’ve seen them recommending release in one case while rejecting it in another case which was exactly similar. They have no grounds on which they differentiate similarly placed convicts, it’s just their mood.”

The convict said there were cases in which appeals of convicts were rejected the first two times and then recommended for early release the third time, without recording reasons for the decision.


What must’ve changed in six months? Nothing. They just felt like making you wait,” he said.


Describing his experience of the process, Shaikh said: “They reduce 15 years of life in prison to just one incident, your crime.”


He said the entire process of applying for a premature release and hearing the board’s decision felt like “mental torture”, as prison officers kept reminding him of his crime during the preparation of the dossier for the board to review.


“They don’t mention certificates and awards for good conduct in our dossier, but describe in detail even the remotest and minutest punishment ticket. They want us to fail…” He said if there was even one punishment ticket, a convict’s 15-year jail stint is described in one word: unsatisfactory. The board does not consider the circumstances in which the punishment ticket was issued.

Prisoners are alienated from the process, making them more uncertain and hopeless. They are not provided a copy of their own commutation roll or dossier presented to the Board, or an opportunity to engage a lawyer for this process. They cannot make any representation of their own in the dossier.


Prisoners who participated in the sentence review process said they should be given a chance to make a representation to the board. Even those with little faith in the system believe that personal interviews will provide them with a sense of agency and certainty about their chances.

Calling the board’s process a “hollow system”, Sunil Gupta said change can only come through an attitude change among the top brass of prison officers. He said that if the director general (prisons) and other prison officers adopt a reformative and rehabilitative attitude, they can convince the board to take a better approach and recommend more numbers of prisoners for premature release.


(Karan Tripathi is a lawyer, journalist and researcher on criminal justice.)



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