The right to the highest attainable standard of health is a prerequisite for the enjoyment of fundamental human rights. The term ‘health’ encompasses both physical and mental health. WHO defines health as a state of “complete physical, mental and social well-being and not merely the absence of disease or infirmity”. Mental health may be defined as “a state of well-being in which an individual realizes his or her abilities, can cope with the normal stresses of life, can work productively and can make a contribution to his or her community”. It is more than the mere absence of mental disorders. The discourse on the same is gaining ground, considering the number of mental health cases on a surge. However, prisoners in India have been excluded from the realm of mental health discourse.
According to the statistics released by National Crime Records Bureau data on prisons, over six thousand of the total prisoners are suffering from some form of mental illness. The prison population comprises 68% under-trials, which is the highest globally, and out of those six thousand, 52% are under-trials. The NCRB report suggested that for every 21,650 prisoners in 2016, with only six states and one union territory having psychologists/psychiatrists. The suicide rate among prisoners has also risen by 28%. The statistics reveal that prisoners are more vulnerable section in terms of mental health issues. They have to live their lives away from friends, family without any meaningful activity coupled with insecurities about their future looming over their heads. They have to cope with mental stress and frustration, which may develop on account of guilt or isolation from society leading to anxiety, depression, suicidal thoughts, panic attacks, et cetera. The unpredictable nature of the prison environment due to volatile inmate-staff relationship, severity of the rule violation and the convenience of rule enforcement exacerbates these feelings of anxiety and depression.
The situation is even worse for the LGBTQ+ community where the confines of prison compel them to invisibilise their identity and self-censure themselves. A pretrial prisoner revealed in an interview his experience at Delhi’s Rohini Jail which was filled with despair and hostility towards homosexuals. The hegemonic masculinity in the prisons made them acutely conscious of their behavior and constant efforts were made to fit in the binary norms of gender. They were apprehensive of animosity by prison inmates if they were came out as ‘visibly gay’ and self-loath started creeping in. The Prison Statistics India (PSI) published by the National Crime Records Bureau reports from 2015 to 2019 record a steady increase in the number of suicides from 77 to 116, or 51%. Suicides are only one manifestation of the distress those in prisons face.
In this article, the author aims to highlight the plight of Indian prisoners and analyze the current legal framework and present solutions that can prove effective to tackle this shadow pandemic.
Legal Framework for Mental Health of Prisoners
The Mental Healthcare Act 2017 is an exhaustive piece of legislation framed to address the issue of mental health in various domains of society. Section 2(w) defines the term ‘prisoner with mental illness’. Section 31(2) lays down mandatory training of medical officers in prison to cater to the needs of the inmates. 93(2) provides for the transfer of a prisoner with mental illness to a place of safe custody or other mental health establishments as per the directions of the State government. Section 103 makes it mandatory for every state government to set up at least one medical cell for the prisoners. The medical officer must present the report of the inmates grappling with mental health issues and state reasons for non-transfer of such a patient to the mental health establishment. On the one hand, the Act lists down important provisions for the prisoners’ mental well-being, but the ground level report suggests a terrible failure to implement the same.
Model Prison Manual is another such legislative instrument issued by the Ministry of Home Affairs pertaining to the mental health needs of the prisoners. Although prison is in Entry IV of List II under State List yet the central government can give directions for their better administration. The guidelines state that at least one psychiatric counselor must be deployed for every prison. Supreme Court, in Francie Coralie v. Administrator, Union Territory of Delhi, took cognizance of prisoners’ deteriorating mental health in India. The apex court with regards to the manual observed in Re Inhuman Conditions, held that the manual although discretionary in nature, most of the states have failed to emulate even the model preceding to the 2016 Model. On the international front, the Universal Declaration of Human Rights states in the Preamble that the right to dignity shall be inalienable rights of an individual. Article 12 of the International Covenant on Economic, Social and Cultural Rights casts an obligation on the State to ensure all prisoners have a human right to the highest attainable standard of physical and mental health. Mandela Rules or UN Standard Minimum Rules for the Treatment of Prisoners provide adequate and accessible mental health care that should be provided to all the prisoners. Efforts must be taken to ensure their psychological well-being in light of the traumatic experience in prison. Rule 2 clearly states that no discriminatory practice shall be adopted on account of the mental health status of the prisoners. The UN Convention on the Rights of Persons with Disabilities (CRPD) also provides key safeguards for people with mental impairments in prison.
‘Hate the crime, not the criminal.’ Prisoners are a part of society and the State cannot shirk from its duties of catering to their basic needs. The right to health is a basic human right, which in itself includes mental health. However, the laws in India have several lacunae and those gaps need to be filled to address the mental health concerns of prisoners.
The provisions of The Criminal Procedure Code, 1973 from Section 328-331 deal with an accused against whom the trial is being held is of unsound mind. It provides bail to the accused in case of a non-bailable offence on being identified as lunatic during the inquiry or trial. The Magistrate has the power to transfer such a person to safe custody and resume the trial after the accused is mentally fit. However, the provisions are inadequate with respect to mental health. Insanity or lunacy is not the only parameter to judge a person’s mental health. Moreover, Section 54 asks for a report of the physical health of the prisoner to be prepared and ultimately keeps mental health out of its realm. An amendment should be made and a report on the grounds of mental health should be prepared mandatorily.
Besides this, several other efforts need to be made to bring an actual change at the ground level. To begin with some fundamental reforms, it is important to have sensitization programs in prisons on mental health and the need to come up and speak for oneself in case of psychological unease. This can be facilitated if every prison has a psychiatric or a psychologist to look after the mental well-being of inmates. It would foster a congenial atmosphere for the inmates to discuss their issues in time. In addition to that, staff vacancies should also be adequately filled up and timely funds should be made available for the mental health staff to carry out their duties efficiently. They should not be overburdened with overlong working hours. The PSI 2019 recorded a total of 60,787 prison staff as against a sanctioned strength of 87,599 – a deficit of over 30%. Overworking affects the mental health of the staff which they end up venting on the inmates.
Recreational activities, yoga and meditation, must be introduced to develop a positive outlook towards life leaving behind the baggage of guilt and self-hostility. Maintaining links between a prisoner and his/her family can be crucial for the mental well-being of the prisoner, for a successful return to society on release, and benefiting the family. The onus of engaging the inmates in some productive activity or facilitating the development of a hobby is on the prison administration. The authorities should be vigilant enough to ensure no bullying or discrimination activities are carried out by the inmates or the prison staff. Effective training should be provided to the correctional officers in prison to be sensitive to the genuine needs of the inmates and any undignified behavior should not be tolerated. The concerns of prisoners must be brought to the forefront and given due importance in financial budgets and policy making.
Overcrowding of prisons must be checked to ensure the right to privacy of the inmates. Bail, not jail is the rule of criminal jurisprudence in India. However, while granting bail, the maximum consideration is paid to the ‘nature of crime’ whereas a public health approach makes health of the prisoner an equally important factor in decision making. This takes into account the vulnerability of the prisoner and external mental help needed by him. The stigma with the word mental health and discrimination against prisoners needs to be shed off to bring a positive change. Creative therapies such as art and music therapies could be introduced for ensuring mental well-being of the prisoners. Playing instruments/ lyrics writing as a part of music therapy can encourage emotional expression, socialization and exploration of various therapeutic themes (i.e. conflict, communication, grief, etc.). Music engages the neocortex of our brain, which calms us and reduces impulsivity. Similarly, art therapy could provide a medium for the prisoners to express themselves leading to greater self-awareness and understanding. This expression of inner thoughts and doubts increases self-worth and builds the resilience of an individual.
In addition to that, restorative justice programs could be introduced in prisons, which would further reduce the recidivism rate. These programs aim to address the harm caused by the crime while holding the offender responsible for their actions. These programs follow the principles of inclusivity, respect and compassion. There are several techniques that could be adopted such as community service, addressing the harm caused by crime while holding the offender responsible for their actions, by providing an opportunity for the parties directly affected by the crime – victims, offenders and communities – to identify and address their needs in the aftermath of a crime. Prisons are complex places full of isolation, anger and remorse that take an emotional toll on a person. The social stigma, lack of proper education, unemployment and low self-esteem to face the society makes their reintegration even more difficult. The process of building individual and social capital post release is marked by ostracism at every stage leading to reoffending, reconviction and self-rejection. In light of such adverse circumstances, it is imperative for the State to continue such restorative programs beyond incarceration as well. Post-release therapies shall facilitate smooth re-entry into the public domain and reduce the risks of individuals resorting to drugs or crimes again. Prisoners upon release are highly vulnerable and welfare assistance programs such as affordable housing, access to job markets and ration can have a positive impact on their abilities to adjust and continue a normal life.
Moreover, linking offenders who received prison-based treatment to continued care after community re-entry has added benefits in reducing relapse and recidivism above and beyond that of prison-based treatment alone. The minimum aim should be to enable them to live a self-supporting life of dignity. Prisons are meant to be correctional houses and ostracizing them would hamper the process of rehabilitation. It is pertinent to acknowledge that prisoners’ rights are human rights and aim towards its fulfillment.
This is a guest post by Preetkiran Kaur. She is a law student at RGNUL, Patiala. Reach her at <firstname.lastname@example.org>. The author would like to thank Niharikaa Mehta for reviewing the article and giving valuable suggestions. Niharikaa is a master's student studying MSc Clinical Psychology.