At the Constitution Day celebrations organised by the Supreme Court in November 2022, President Droupadi Murmu shared a snippet of her journey with the audience. She reflected on her visits to prisons across India and the circumstances of those incarcerated. She highlighted that these individuals were often unaware of their fundamental rights and had been incarcerated for prolonged periods for minor offences, while their families, struggling with poverty, were unable to bail them out.
President Murmu emphasised how the judiciary, executive, and legislature must work together to help them, and concluded by poignantly asking: How are we claiming that we are progressing as a nation, if we are still building prisons to address the issue of overcrowding?
In stark contrast, in June last year, Lieutenant-Governor of Delhi (L-G) Vinai Kumar Saxena directed the Delhi Development Authority (DDA) to allocate 1.6 lakh square metres of land to Delhi’s prison department to construct a district prison complex in Narela. The DDA has received ₹135.79 crore from the prison administration for the land thus far, and is demanding a further payment of ₹29.88 crore.
Officials claim that the prison is to be constructed in two phases, the first for high-risk offenders and the second for undertrials.
Re-thinking architecture
In phase 1, which is expected to be completed by April 2024, a high-security jail is to be built in the complex with a capacity to lodge 250 high-risk prisoners. The prison administration has incorporated stringent security measures in the design such as constructing high walls between cells to prevent inmates from viewing others, and interacting with each other, as well as building office spaces between cells to facilitate surveillance.
French philosopher Michel Foucault has extensively written about how the architecture of prisons is often used as a tool to surveil, torture, and break the souls of inmates. With this prison design, the Delhi prison administration is essentially creating solitary confinement which will have a severe detrimental effect on prisoners’ mental health.
Frank Gehry, a renowned architect, offered a semester-long course at the Yale School of Architecture in 2017, on architecture and mass incarceration. As their final project, students were tasked with designing a prison facility to house extraordinarily violent offenders. Their models featured open and communal space, fresh air, and spaces for family visits and therapy. Their versions of prisons looked like university campuses, health and wellness facilities, monasteries, and communal complexes emphasising the need to break away from the traditional conception of prisons as mere warehouses and cages, even for the most violent inmates. The students viewed prisoners and prison staff as their clients, rather than the state bureaucracy, and this impacted their designs.
Defund prisons
Prisons in India are still governed by the Prisons Act, 1894, a colonial legislation which treats prisoners as sub-par citizens, and provides the legal basis for punishment to be retributive, rather than rehabilitative. These laws are also highly casteist, and remain largely unchanged since they were drafted by the British. For example, some jail manuals continue to focus on purity as prescribed by the caste system, and assign work in prison based on the prisoner’s caste identity. Organisations such as the Vidhi Centre of Legal Policy have taken us one step further in identifying colonial legal continuities that India must shred, and the manner in which she can do so.
Furthermore, Dalits and Adivasis are over-represented in Indian prisons. The National Dalit Movement for Justice and the National Centre for Dalit Human Rights’ report ‘Criminal Justice in the Shadow of Caste’ explains the social, systemic, legal, and political barriers that contribute to this. Legislations such as the Habitual Offenders Act and Beggary Laws allow the police to target them for reported crimes.
The L-G’s claim to decongest Delhi’s prison complexes by setting up prisons in Narela is misguided. It is helpful to look towards President Murmu’s timely and emphatic clarion call at the Constitutional Day speeches, where she insightfully noted that progress is antithetical to setting up prisons, and we must address congestion in prisons in non-carceral ways. These could include releasing unwell or old inmates, reducing penalties, allowing bail at affordable costs, employing anti-carceral ways of holding people accountable for their crimes, and expediting trials.
The primary reason why prisons are overcrowded is because India has not done enough to truly prevent crime. Our approach to crime should be preventive, rather than reactive. Instead of investing thousands of crores in finding “state-of the art” ways to cage and harm people, the L-G should reflect on the soul of India’s Constitution which imposes welfare obligations on the state. He could work with the Delhi government to channel public funds towards public goods such as housing, education, and employment, so that people would not be as compelled to, or have as much proclivity to commit crimes.
We must take preventive measures before we realise that we have travelled far down this road, and have subjected several people to unnecessary trauma and confinement. With the warning signs beseeching us, we must amplify President Murmu’s message on the need to de-carcerate and stop building more prisons, so that the L-G takes adequate steps in that direction. As the three-judge Bench of the Supreme Court led by Justice U.U. Lalit recently quoted Oscar Wilde while commuting a death sentence, we must recognise that ‘Every saint has a past, and every sinner has a future.’
(Stuti Shah is Doctoral Candidate at Columbia Law School)