RECOMMENDATIONS OF NHRC ON DETENTION

The National Human Rights Commission organized the National Workshop on Detention in New Delhi on 11-12 October 2008 as a part of activities to commemorate the 60th Anniversary of the Universal Declaration of Human Rights, 1948.
Based on the deliberations in the Workshop, the following recommendations are made by the Commission.
DETENTION IN PRISONS AND POLICE CUSTODY:
1. It is important to understand that a person in custody is under the care of the State and it is the responsibility of the State to ensure protection of his or her basic human rights. It should not be confused as advocacy for rights of criminals and terrorists.
2. The Convention against Torture inter alia seeks to prohibit torture in custody. Though India has signed the Convention against torture, it has not yet ratified it. The Central Government must take immediate steps in this regard.
3. India may have a low rate of just 32 persons being in jail per every 100,000 population but a high proportion among them are undertrial prisoners languishing in jails. To overcome the situation, speedy trial should be ensured through the following measures :
a) Establishment of more courts and filling the vacant posts in judiciary.
b) Expedite the process of recording of evidence and examination of the police officers and medical practitioners who are witnesses in certain
cases as transferable nature of their services compounds any delay in this regard.
c) In addition, provisions for keeping undertrial prisoners and convicts separately should be strictly enforced.
4. Section 436-A of the Cr.P.C provides for the release of a person in custody on personal bond, in case he has been in custody for more than half the period of the sentence he would have undergone in case found guilty. However, inspite of this, the number of undertrial prisoners is still very high. Strategies and modalities should be worked out to ensure that the undertrial prisoners get expeditious relief under this provision.
5. As per Section 62(5) of the Representation of People's Act, a person confined in a prison or a lawful custody of the Police except those under preventive detention under any law is not allowed to vote although except for convicts, they are eligible to contest election. The provisions related to right to vote in the Representation of People's Act be suitably amended to ensure this right for undertrial prisoners.
6. There is a need for implementing prison reforms including Model Prison Code. This should inter alia cover vocational training of prisoners and providing them opportunity to work which besides keeping them engaged can also be a source of supplementary earning for them as well as a source of revenue for prison administration.
7. There is a need to pay special attention
to orientation and training of prison staff to change their mindset from custodial to correctional approach. More training institutions should be set up to for such staff. Mere sensitization of police or prison officials is not enough. The prisoners are equally under stress and therefore sensitization programmes should also focus on prisoners as target group.
8. Suitable strategies and modalities should be worked out for ensuring the protection
of rights of children between the age group of 0 to 6 years of mothers in prisons and
for implementation of Supreme Court judgment in R.D. Upadhyay vs. State of Andhra Pradesh.
9. In case of deaths in custody, as per the present practice, the Police Administration is required to send the report within 24 hours of its occurrence to NHRC. In accordance with the amendment made to Cr.P.C. (Section 176 (1) of Cr.P.C.) an inquiry by a judicial magistrate is made. There is a need for scrupulous implementation of procedure established under Section 176 (1) of Cr.P.C. In addition, forensic experts and laboratories must be involved as their expertise and scientific manner of investigation can assist in providing accurate and reliable evidence.
10. It was also suggested that the penalty inflicted on a delinquent police official responsible for torture should be in proportion to the degree of torture by such officials rather than a mere reprimand or transfer.
11. Government should take steps to separate the investigation wing from law and order wing, as decided in the case of Prakash Singh vs Union of India (2006 (8 ) S.C.C.1).
12. The UN Minimum Standard Rules for the Treatment of Prisoners should be enforced and monitored from the Human Rights perspective.
13. There is a need to make the prison more transparent and open to the civil society.
14. All sorts of unlawful detentions should be severely dealt with.
PREVENTIVE DETENTION
15. The difference between "preventive" and "punitive" detention must be clearly understood. Preventive detention is aimed at preventing the possibility of an activity by a person which may be detrimental to public order or national security. Preventive detention should not be resorted as a substitute for the normal procedure established by law. There is a need to sensitize the authorities concerned that it should be resorted to as an exception in rare cases.
16. Certain safeguards are provided under law to the detenue under preventive detention. These include detailed recording of facts leading to satisfaction of authority, conveying the grounds of detention to the detenue, right to make representation to State or Central Govt. or to advisory board etc. These norms for detention should be strictly followed and all authorities should be sensitized about observance of these safeguards. People also should also be sensitized about various personal liberties.
17. Preventive detention laws need to keep a balance between human rights of liberty on the one hand and security of the nation or maintenance of public order.
18. In case the detenue is found unlawfully detained, there is a need to have provision for interim relief/ compensation.
DETENTION IN JUVENILE JUSTICE (JJ) HOMES
19. UN Minimum Standards for Treatment of Juveniles [Beijing Rules] should be strictly adhered to.
20. All the States must formulate rules under the Juvenile Justice Act, 2006 and constitute necessary institutions as required under the law. Constraints if any in implementing the provisions must be removed either by amendment to the law or by adopting a suitable strategy.
21. Juvenile Justice System should be distinct from criminal justice system in adjudication and terminology.
22. Effective implementation of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, requires need based analysis on part of the State Governments to streamline their approach.
23. Juvenile Justice should move up in the list of priorities for the State Governments to ensure that the financial, administrative and infrastructural needs are met, keeping in view the best interests of the child.
24. The authorities must comprehend the distinction between children in conflict with law and those in need of care and protection. The specific welfare needs of both the categories must be addressed.
25. The Adjudicatory Bodies (JJB) should ensure that the enquiries are completed within the stipulated time of 4 months as laid down in the Act.
26. Adequate number of qualified and trained personnel should be recruited under the JJ system. In cases of alleged abuse, strict action should be initiated against officers and staff responsible and pending such action, they should be immediately transferred.
27. Rehabilitation and repatriation of the children should be the ultimate aim. Institutional care must include proper educational facilities and vocational training in order to ensure sustainable options for child after he/she is sent back.
28. Health care needs of all the children must be looked after. The specific requirements of children ailing from diseases like HIV, scabies, mental disability must be addressed.
29. Basic standards of hygiene and nutrition should be adhered to in the Juvenile Justice/ observation homes.
30. It must be ensured that regular inspections of the homes be undertaken by the Inspection committees that have been set up under the Act.
MENTAL HEALTH ISSUES OF DETAINEES:
31. World over, on an average 32% of all prisoners require psychological help. If one includes substance abuse, the figure goes beyond 60%. Hence there is a need for focused attention on mental health. There is a need for early identification of mental illness among prisoners and for taking consequent steps.
32. There is little documentation of the problems of psychiatrically ill prisoners, problem of escorts for referrals/ discharge, inadequate follow up and care while in custody, no follow-up of psychiatric treatment after discharge from custody. Arrangements be made for periodic visits of Psychiatrists.
33. In view of little formal training of prison staff in mental health, there is a need for corrective measures.
34. Psychiatrist be posted in jail hospitals. If the same is not possible due to shortage of Psychiatrists, arrangements should be made for visits of psychiatrist on periodic basis, atleast once a week.
35. Normally prisoners having mental problems should be kept separately, preferably shifted to mental hospitals. However, due to over all shortage of trained manpower in mental health care both in district hospitals or mental hospitals, this may not become possible. Thus there is a need to augment the Mental Health Care system, both in terms of manpower and infrastructure. Some general recommendations in this regard are as follows:
(a) There is a need to move from custodial care to community mental health care approach and also integrate mental health care with general health care system through District Mental health programme.
(b) The diet scale of persons in mental hospitals needs to be fixed based on ` minimum calorie terms' rather than monetary terms to offset inflation.
(c) Mental health care audit of all institutions of child care may be taken up by NHRC.
(d) There is no formal after care services available. The Ministry of Social Justice and Empowerment may set up facilities for mentally ill who are treated but have nowhere to go.
(e) There is a tendency to leave the mentally ill people in mental hospitals even in cases where the treatment can be done as outpatient. This mindset to treat the mental hospitals as a defacto detention place for mentally ill must change. For this social awareness programmes must be taken up.