On February 13, 2023, the Odisha cabinet approved a proposal to provide compensation to the next of kin of prisoners who die inside jails in the state. The provision was made in accordance with an order of the Orissa High Court on December 23, 2021. A division bench of Chief Justice S Muralidhar and Justice AK Mohapatra of the High Court was dealing with petitions highlighting various issues concerning jails in the state. The bench observed that a system or scheme should be put in place by the government itself for compensation for the death of prisoners in custody.
To ensure availability of legal assistance to a suspect, the High Court directed that the Odisha State Legal Services Authority (OSLSA) should, in consultation with the police, put in place a “police station duty lawyer system” at every police station in a district. Such duty lawyers whose names and mobile numbers will be displayed on a board in a prominent place at the police station should be prepared to offer their services 24×7. A roster of the lawyers will be prepared.
In order to make this system effective, a direction has been issued to the police as well as the OSLSA. A pilot project of the duty lawyer system will start in four police stations in Odisha, preferably in each of the four geographical regions beginning February 1, 2022, said the Court in its 2021 order. NALSA guidelines in this regard have to be adhered to.
Regarding the release of prisoners under Section 433A CrPC for permanent parole, the government suggested to the Court that a system that has been in operation in Rajasthan with good results could be examined for adoption with suitable modifications for Odisha. It was pointed out that in Telangana, such a practice was adopted, which ultimately resulted in considerable reduction in the prison population. Some of these measures were providing for the release of:
(i) All convicted women prisoners sentenced to imprisonment for life, including those governed by Section 433-A CrPC who have undergone an actual sentence of six years, including remand period and total sentence of eight years, including remission.
(ii) All convicted male prisoners sentenced to imprisonment for life, including those governed by Section 433-A CrPC and who have undergone an actual sentence of 10 years, including a remand period and total sentence of 14 years, including remission.
(iii) All male convicted prisoners sentenced to imprisonment for life including those governed by Section 433-A CrPC aged more than 65 years and who have undergone an actual sentence of six years, including remand period and total sentence of eight years, including remission, shall be released.
(iv) All women convicted prisoners sentenced to imprisonment for life, including those governed by Section 433-A CrPC aged more than 60 years and who have undergone an actual sentence of six years, including remand period and a total sentence of seven years, including remission.
Another issue which was highlighted was the payment of wages to prisoners. The practice in jails in Odisha, the Court was informed, is that while convicts are engaged in various activities such as carpentry, farming, etc., it is voluntary when it comes to undertrials. The Court reminded the state government of the legal requirements as spelt out in the judgment of the Supreme Court in State of Gujarat vs Hon’ble High Court of Gujarat (1998) where it observed: “All the learned counsels who argued before us are in unison in agreeing to the proposition that no prisoner can be asked to do labour, free of wages. It is not only the legal right of a workman to have wages for the work, but also a social imperative and an ethical compulsion. Extracting somebody’s work without giving him anything in return is only reminiscent of the period of slavery and the system of beggar.” In the same judgment, a series of guidelines were set out on the modalities for fixing the wages for prisoners.
In addition, Rule 1028 of the Odisha Prison Rules 2020 sets out the steps to be taken in the event of a death of a prisoner in custody. Rule 1026 talks of certification by a medical officer. Rule 1032 talks of post-mortem examination by “the outside Medical Officer”.
In an affidavit filed on December 17, 2021, the DG Prisons had given the details of payment of compensation for custodial deaths. In respect of nine prisoners who died in jails in Odisha during 2020-21, the payment to the next of their kin was stated to be “under process”. Also, the basis for fixing the compensation amount was not clear. Instead of getting the Odisha Human Rights Commission or National Human Rights Commission to fix the compensation amount in every case, a system/scheme should be put in place by the government itself for such payment. This should be devised in consultation with civil society groups working in the area of prison reforms so that the best practices elsewhere can be adopted, the Bench observed.
A case of an unnatural death in judicial custody where one person was killed by a co-prisoner was the subject matter of discussion in Kewal Pati vs State of Bihar. The apex court had held that as a consequence of imprisonment, a prisoner does not cease to have constitutional rights, except to the extent he or she has been deprived of them in accordance with law. Therefore, even a prisoner is entitled to protection and if he is killed while in prison, it results in a deprivation of his life contrary to the law, for which the next of kin is entitled to compensation.
There have been cases of unnatural deaths in jails where the next of kin has been given compensation. In Nina Rajan Pillai & Ors. vs Union of India, the husband of the petitioner died in judicial custody due to inadequate medical treatment given by the jail authorities. The L-G of Delhi even appointed a Commission of Inquiry headed by Justice Leila Seth, a former chief justice of the Himachal Pradesh High Court, to inquire into the circumstances that led to the death of the petitioner’s husband. The Delhi High Court awarded compensation for the unnatural death in custody.
In Nilabati Behera vs State of Orissa, a person who was taken into police custody for investigation of a theft was found dead near a railway track the next day. On the basis of injuries and handcuffs on his wrists, the Supreme Court concluded that it was a custodial death and compensation was awarded under Article 32 of the Constitution. It was held that a public law remedy was certainly available to claim compensation for the contravention of human rights and fundamental rights which are protected as a guarantee by the Constitution.
In 2017, a Supreme Court Bench of Justices Madan B Lokur and Deepak Gupta in Inhuman Conditions in 1382 Prisons observed: “The case law indicates that over the last several decades this Court and almost every High Court has relied on Article 21 of the Constitution and thought it appropriate to compensate the next of kin for an unnatural custodial death. The constitutional courts can go on delivering judgment after judgment on this issue and award compensation, but unless the State realizes that custodial death is itself a crime and monetary compensation is not necessarily the only appropriate relief that can be granted to the next of kin of the deceased, such unnatural deaths will continue unabated. Therefore, what is needed is a review of all prisons with a humanitarian nuance.
“54. Over the last several years, there have been discussions on the rights of victims and one of the rights of a victim of crime is to obtain compensation. Schemes for victim compensation have been framed by almost every State and that is a wholesome development. But it is important for the Central Government and the State Governments to realize that persons who suffer an unnatural death in a prison are also victims—sometimes of a crime and sometimes of negligence and apathy or both. There is no reason at all to exclude their next of kin from receiving compensation only because the victim of an unnatural death is a criminal. Human rights are not dependent on the status of a person but are universal in nature. Once the issue is looked at from this perspective, it will be appreciated that merely because a person is accused of a crime or is the perpetrator of a crime and in prison custody, that person could nevertheless be a victim of an unnatural death. Hence the need to compensate the next of kin.”
—By Shivam Sharma and India Legal Bureau