Contradictions of The Penal System and ‘Pains of Imprisonment’: New Evidence from India

The legal theorist Alan Norrie argues that the modern justice system is crumbling because even its first principles consist of contradictions.[i] 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 infliction 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’, first proposed by Gresham Sykes in 1958, facilitates an understanding of the deprivations and psychological pains of incarceration, as opposed to the physical pain that prisoners may go through.[ii] 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 five 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.

The law as it stands affirms that prisoners, like all individuals, deserve to be treated with dignity.[iii] 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 and requires the state to furnish evidence towards the same,[iv] thus implying that the prison system will provide opportunities to such prisoners to undertake a journey of reflection 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.

Furthermore, despite being prohibited in law,[v] 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 flashing 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. Despite the law,[vi] death row prisoners are not allowed to work in prison and their access to libraries, newspapers and education is severely restricted. The treatment inflicted upon prisoners controls every aspect of their lives: from their sleep to their desires to become a better person. The report identifies that forcible restrictions of freedom and liberties can be psychologically and physically alienating for prisoners. In addition, ‘micro-humiliations’ that are inflicted 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 justified. 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 vilification 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 Manual[vii] with the stated aim of imprisonment being reform of prisoners when the attitude of prison administration continues to inflict 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. This article first appeared in DPRU Blog, Oxford Law Faculty, and can be accessed here.